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G.R. No.

L-4221 August 30, 1952

MARCELO D. MONTENEGRO, petitioner-appellant,


vs.
GEN. MARIANO CASTAEDA, and COLONEL EULOGIO BALAO, respondents-appellees.

Felixberto M. Serrano and Honorio Ilagan for appellant.


Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for appellees.

BENGZON, J.:

The purpose of this appeal from the Court of First Instance of Quezon City is to test the validity of
Proclamation No. 210 suspending the privilege of the writ of habeas corpus.

A few months ago the same proclamation came up for discussion in connection with the request for
bail of some prisoners charged with rebellion.1 The divided opinion of this Court did not squarely
pass on the validity of the proclamation; but, assuming it was obligatory, both sides proceeds to
determine its effect upon the right of which prisoners to go on bail.

This decision will now consider the points debated regarding the aforesaid residential order.

The facts are few and simple: About five o'clock in the morning of October 18, 1950, Maximino
Montenegro was arrested with others at the Samanillo Bldg. Manila, by agents of the Military
Intelligence Service of the Armed Forces of the Philippines, for complicity with a communistic
organization in the commission of acts of rebellion, insurrection or sedition. So far as the record
discloses, he is still under arrest in the custody by respondents. On October 22, 1950, The President
issued Proclamation No. 210 suspending the privilege of the writ of habeas corpus. On October 21,
1950, Maximino's father, the petitioner, submitted this application for a writ of habeas corpus seeking
the release of his son.

Opposing the writ, respondents admitted having the body of Maximino, but questioned judicial
authority to go further in the matter, invoking the above-mentioned proclamation.

Petitioner replied that such proclamation was void, and that, anyway, it did not apply to his son, who
had been arrested before its promulgation. Heeding the suspension order, the court of first instance
denied the release prayed for. Hence this appeal, founded mainly on the petitioner's propositions:.

(a) The proclamation is unconstitutional "because it partakes of bill of attainder, or an ex post facto
law; and unlawfully includes sedition which under the Constitution is not a ground for suspension";

(b) Supposing the proclamation is valid, no prima facie.

(c) "There is no state of invasion, insurrection or rebellion, or imminent danger thereof," the only
situations permitting discontinuance of the writ of habeas corpus; showing was made that the
petitioner's son was included within the terms thereof.

Proclamation No. 210 reads partly as follows:

WHEREAS, lawless elements of the country have committed overt acts of sedition,
insurrection and rebellion for the purpose of overthrowing the duly constituted
authorities and in pursuance thereof, have created a state of lawlessness and
disorder affecting public safety and the security of the state;

WHEREAS, these acts of sedition, insurrection, and rebellion consisting of armed


raids, sorties, and ambushes and the wanton acts of murder, rape, spoilage, looting,
arson, planned destruction of public and private buildings, and attacks against police
and constabulary detachments, as well as against civilian lives and properties as
reported by the Commanding General of the Armed Forces, have seriously
endangered and still continue to endanger the public safety;

WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated
by various groups well organized for concerted actions and well armed with machine
guns, rifles, pistols and other automatic weapons, by reason whereof there is actual
danger of rebellion which may extend throughout the country;

Whereas, 100 leading members of these lawless elements have been apprehended
and the presently under detentions, and strong and convincing evidence has been
found in their possession to show that they are engaged in the rebellious, seditious
and otherwise subversive acts as above set forth; and

Whereas, public safety requires that immediate and effective action be taken to
insure the peace and security of the population and to maintain the authority of the
government;

NOW, THEREFORE, I, ELPIDIO QUIRINO, 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 sedition, insurrection or rebellion, and or on the occasion
thereof, or incident thereto, or in connection therewith.

A. It is first argued that the proclamation is invalid because it "partakes" of a bill of attainder or an ex
post facto law, and violates the constitutional percept that no bill of attainder or ex post facto law
shall be passed. The argument is devoid of merit. The prohibition applies only to statutes. U.S. vs.
Gen. El., 80 Fed. Supp. 989; De Pass vs. Bidwell, 24 Fed., 615.2 A bill of attainder is a legislative act
which inflicts punishment without judicial trial. (16 C.J.S. p. 902; U.S. vs. Lovett (1946) 328 U.S.
303). Anyway, if, as we find, the stay of the writ was ordered in accordance with the powers
expressly vested in the President by the Constitution, such order must be deemed an exception to
the general prohibition against ex post facto laws and bills of attainder supposing there is a
conflict between the prohibition and the suspension.

On the other hand there is no doubt it was erroneous to include those accused of sedition among the
persons as to whom suspension of the writ is decreed. Under the Constitution the only grounds for
suspension of the privilege of the writ are "invasion, insurrection, rebellion or imminent danger
thereof." Obviously, however, the inclusion of sedition does not invalidate the entire proclamation;
and it is immaterial in this case, inasmuch as the petitioner's descendant is confined in jail not only
for sedition, but for the graver offense of rebellion and insurrection. Without doing violence to the
presidential directive, but in obedience to the supreme law of the land, the word "sedition" in
Proclamation No. 210 should be deemed a mistake or surplusage that does not taint the decree as a
whole.
B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or
imminent danger thereof. "There are" he admits "intermittent sorties and lightning attacks by
organized bands in different places"; but, he argues, "such sorties are occasional, localized and
transitory. And the proclamation speaks no more than of overt of insurrection and rebellion, not of
cases of invasion, insurrection or rebellion or imminent danger thereof." On this subject it is noted
that the President concluded from the facts recited in the proclamation, and the other connected
therewith, that "there is actual danger rebellion which may extend throughout the country." Such
official declaration implying much more than imminent danger of rebellion amply justifies the
suspension of the writ.

To the petitioner's unpracticed eye the repeated encounters between dissident elements and military
troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security,
analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are
warp and woof of a general scheme to overthrow his government vi et armis, by force and arms.

And we agree with the Solicitor General that in the light of the views of the United States Supreme
Court thru, Marshall, Taney and Story quoted with approval in Barcelon vs. Baker (5 Phil., 87, pp. 98
and 100) the authority to decide whenever the exigency has arisen requiring the suspension belongs
to the President and "his decision is final and conclusive" upon the courts and upon all other
persons.

Indeed as Justice Johnston said in that decision, whereas the Executive branch of the Government
is enabled thru its civil and military branches to obtain information about peace and order from every
quarter and corner of the nation, the judicial department, with its very limited machinery can not be in
better position to ascertain or evaluate the conditions prevailing in the Archipelago.

But even supposing the President's appraisal of the situation is merely prima facie, we see that
petitioner in this litigation has failed to overcome the presumption of correctness which the judiciary
accords to acts of the Executive and Legislative Departments of our Government.

C. The petitioner's last contention is that the respondents failed to establish that this son is included
within the terms of the proclamation.

On this topic, respondents' return officially informed the court that Maximino had been arrested and
was under custody for complicity in the commission of acts of rebellion, insurrection and sedition
against the Republic of the Philippines. Not having traversed that allegation in time, petitioner must
be deemed to have conceded it.

. . . In the absence of a denial, or appropriate pleading avoiding their effect, averment


of facts in the return will be taken as true and conclusive, regardless of the
allegations contained in the petition; and the only question for determination is
whether or not the facts stated in the return, as a matter of law, authorizes the
restraint under investigation. (39 C.J.S., 664-655.)

D. An interesting issue is posed by amici curiae. The Bill of Rights prohibits suspension of the
privilege of the writ of habeas corpus except when the public safety requires it, in cases of (1)
invasion (2) insurrection or (3) rebellion.

Article VII Section 10 authorizes the President to suspend the privilege, when public safety requires
it, in cases of (1) invasion (2) insurrection or (3) rebellion or (4) imminent danger thereof.
"Imminent danger," is no cause for suspension under the Bill of Rights. It is under Article VII. To
complicate matters, during the debates of the Constitutional Convention on the Bill of Rights,
particularly the suspension of the writ, the Convention voted down an amendment adding a fourth
cause of suspension: imminent danger of invasion, insurrection of rebellion.

Professor Aruego a member of the Convention, describes the incident as follows:

During the debates on the first draft, Delegate Francisco proposed as an amendment
inserting, as a fourth cause for the suspension of the writ of habeas corpus imminent
danger of the three causes included herein. When submitted to a vote for the first
time, the amendment was carried.

After this motion for a reconsideration of the amendment was approved, Delegate
Orense spoke against the amendment alleging that it would be dangerous to make
imminent danger a ground for the suspension of the writ of habeas corpus. In part,
he said:

"Gentlemen, this phrase is too ambigous, and in the hands of a President who
believes himself more or less a dictator, it is extremely dangerous, it would be a
sword with which he would behead us.".

In defense of the amendment, Delegate Francisco pointed out that it was intended to
make this part of the bill of rights conform to that part of the draft giving the President
the power to suspend the writ of habeas corpus also in the case of an imminent
danger of invasion or rebellion. When asked by Delegate Rafols if the phrase,
imminent danger, might not be struck out from this corresponding provisions under
the executive power instead, Delegate Francisco answered:

"Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page
I have mentioned. But I say, going to the essence of referring exclusively to the
necessity of including the words, of imminent danger of one or the other, I wish to
say the following: that it should not be necessary that there exists a rebellion,
insurrection or invasion in order that habeas corpus may be suspended. It should be
sufficient that there exists not a danger but an imminent danger, and the word,
imminent, should be maintained. When there exists an imminent danger, the State
requires for its protection and for that of all the citizens the suspension of habeas
corpus."

When put to vote for the second time, the amendment was defeated with 72 votes
against and 56 votes in favor of the same. (I Aruego's Framing of the Philippine
Constitution, pp. 180-181)

Nevertheless when the President's specific powers under Article VII, were taken up there was no
objection to his authority to suspend in case of "imminent danger". (At least we are not informed of
any debate thereon.) Now then, what is the effect of the seeming discrepancy?

Is the prohibition of suspension in the bill of rights to be interpreted as limiting Legislative powers
only not executive measures under section VII? Has article VII (sec. 10) pro tanto modified the bill
of rights in the same manner that a subsequent section of a statue modifies a previous one?
The difference between the two constitutional provisions would seem to be: whereas the bill of rights
impliedly denies suspension in case of imminent dangers of invasion etc., article VII sec. 10
expressly authorizes the President to suspend when there is imminent danger of invasion etc.

The following statements in a footnote in Cooley's Constitutional limitations (8th Ed.) p. 129, appear
to be persuasive:

It is a general rule in the construction of writings, that, a general intent appearing, it


shall control the particular intent; but this rule must sometimes give way, and effect
must be given to a particular intent plainly expressed in one part of a constitution,
though apparently opposed to a general intent deduced from other parts. Warren V.
Shuman, 5 Tex. 441. In Quick V. Whitewater Township, 7 Ind. 570, it was said that if
two provisions of a written constitutions are irreconcilably repugnant, that which is
last in order of time and in local position is to be preferred. In Gulf, C. & S. F. Ry. Co.
v. Rambolt, 67 tex. 654, 4 S.W. 356, this rule was recognized as a last resort, but if
the last provision is more comprehensive and specific, it was held that it should be
given effect on that ground.

And in Hoag vs. Washington Oregon Corp. (1915) 147 Pac. Rep., 756 at p. 763 it was said:

It is a familiar rule of construction that, where two provisions of a written Constitution


are repugnant to each other, that which is last in order of time and in local position is
to be preferred. Quick v. White Water Township, 7 Ind., 570; G., C. & S.F. Ry. Co. v.
Rambolt, 67 Tex. 654, 4 S.W. 356. So, even assuming the two clauses discuss are
repugnant, the latter must prevail.

Wherefore in the light of this precedents, the constitutional authority of the President to suspend in
case of imminent danger of invasion, insurrection or rebellion under article VII may not correctly be
placed in doubt.

E. The petitioner insisted in the court below that the suspension should not apply to his son, because
the latter had been arrested and had filed the petition before the Executive proclamation. On this
phase of the controversy, it is our opinion that the order of suspension affects the power of the
court's and operates immediately on all petitions therein pending at the time of its promulgation.

A proclamation of the President suspending the writ of habeas corpus was held valid
and efficient in law to suspend all proceedings pending upon habeas corpus, which
was issued and served prior to the date of the proclamation. Matter of Dunn, D.C.
N.Y. 1863, 25 How. Prac. 467, 8 Fed. Cas. 4,171.

F. Premises considered, the decision of the court a quo refusing to release the prisoner is affirmed,
without costs.

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

ROGELIO V. ARIENDA, petitioner,

vs.

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

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

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

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,

vs.

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

G.R. No. L-34265 December 11, 1971

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

vs.

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

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;

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;
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 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

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.

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:

A. PROVINCES:

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.

B. SUB-PROVINCES:

1. Guimaras 3. Siquior
2. Biliran

C. CITIES:

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

20. Cebu 24. Tacloban


21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo

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

A. PROVINCES:

1. Surigao del Norte 8. Agusan del Sur


2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Zamboanga del Norte
5. Davao Oriental 12. Basilan
6. Bukidnon 13. Pagadian
7. Agusan del Norte

B. CITIES:

1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan 11. Zamboanga
5. Gingoong 12. Basilan
6. Ozamiz 13. Pagadian.
7. Oroquieta

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

A. PROVINCES:

1. Cagayan 5. Camarines
2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:

1. Cavite City 3. Trece Martires


2. Tagaytay 4. Legaspi

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:

A. PROVINCE:
1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 13. Pampanga
4. Camarines Sur 14. Quezon
5. Ifugao 15. Rizal
6. Isabela 16. South Cotabato
7. Laguna 17. Tarlac
8. Lanao del Norte 18. Zambales
9. Lanao del Norte

B. SUB-PROVINCES:

1. Aurora 2. 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

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.

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.

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) released from custody:

(1) Teodosio Lansang -- G.R. No. L-33964


(2) Bayani Alcala -- " " L-33964
(3) Rogelio Arienda -- " " L-33965
(4) Nemesio Prudente -- " " L-33982
(5) Gerardo Tomas -- " " L-34004
(6) Reynaldo Rimando -- " " L-34013
(7) Filomeno M. de Castro -- " " L-34039
(8) Barcelisa de Castro -- " " L-34039
(9) 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 L-33973, 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.

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
that4 "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. Baker5 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. Mott7 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 cases8 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 cases9
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 Anti-Subversion 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 twenty-seven (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, L-33965 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. Q-1623 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:

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;

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:

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;

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

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

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.

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

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."

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, L-34039 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.

Reyes, J.B.L., Makalintal, Zaldivar, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
Separate Opinions

CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ of habeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs. Gatmaitan.1
Justice Tuason, in part, said:

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their
hands off unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.

By the same token, if and when a 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...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.

Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled
to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter. 2 The
detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional.3
What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.

To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all,
no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.
1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ of habeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights1 is
that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary.2 There is the further provision that the constitutional official so empowered to take such a
step is the President.3 The exceptional character of the situation is thus underscored. The
presumption would seem to be that if such a step were taken, there must have been a conviction on
the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him,
avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the
armor of what must have been a careful study on his part, in the light of relevant information which
as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the sphere of individual freedom contracts
and the scope of governmental authority expands during times of emergency, it becomes manifest
why an even greater degree of caution and circumspection must be exercised by the judiciary when,
on this matter, it is called upon to discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan4 stated: "The Constitution is a law for rulers and for people equally in war
and in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited Milligan case that the framers of the
Constitution "limited the suspension to one great right and left the rest to remain forever inviolable."
While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is to be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.5 The exercise thereof according to Justice Laurel requires that it
gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action.6 The supreme mandates of the Constitution are not to be loosely brushed aside.7 Otherwise,
the Bill or Rights might be emasculated into mere expressions of sentiment.8 Speaking of this Court,
Justice Abad Santos once pertinently observed: "This court owes its own existence to that great
instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this
court is bound by the provisions of the Constitution."9 Justice Tuason would thus apply the
constitutional rights with undeviating rigidity: "To the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus
occupies a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly
then could Chafee refer to the writ 'as the most important human rights provision' in the fundamental
law." Care is to be taken then lest in the inquiry that must be undertaken to determine whether the
constitutional requisites justifying a suspension are present, the effects thereof as to the other civil
liberties are not fully taken into account. It affords no justification to say that such a move was
prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the
view, as contended by one of the counsel for respondents, that between the safety of the
overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former must prevail.
That is to indulge in the vice of over simplification. Our fundamental postulate is that the state exists
to assure individual rights, to protect which governments are instituted deriving their just powers from
the consent of the governed. "The cardinal article of faith of our civilization," according to Frank
further, "is the inviolable character of the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or extensive. 14
Even if there be no showing then of constitutional infirmity, at least one other branch of the
government, that to which such an awesome duty had been conferred has had the opportunity of
reflecting on the matter with detachment, with objectivity, and with full awareness of the commands
of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. The term has been made applicable to controversies clearly
non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior legislative or executive determination to
which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where
the party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited
with accuracy, "political questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to which full discretionary authority is vested
either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon.
17
Unless, clearly falling within the above formulation, the decision reached by the political branches
whether in the form of a congressional act or an executive order could be tested in court. Where
private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost
sight of that such a power comes into play if there is an appropriate proceeding that may be filed
only after either coordinate branch has acted. Even when the Presidency or Congress possesses
plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. 18 For the constitutional grant of authority is not usually unrestricted. There
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of
the Chief Justice.

6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus
been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision. 20 This Court was partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the
case of Chief Justice Marshall, whose epochal Marbury v. Madison 21 was cited. Why that was so is
difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function
of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: "It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply." 22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in
certain cases, and Congress did provide that in those cases the President should have authority to
make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but that.
24
Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving the calling
out of the militia. As a matter of fact, an eminent commentator speaking of the two above decisions
had this apt observation: "The common element in these opinions would seem to be a genuine
judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not have
any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that
under a popular form of government there are certain questions that the political branches must be
trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be
dangerous and misleading to push the principles of these cases too far, especially the doctrine of
'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously
injured citizen relief from a palpably unwarranted use of presidential or military power, especially
when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court
will act as if it had never heard of this doctrine and its underlying assumption that there are some
powers against which the judiciary simply cannot be expected to act as the last line of defense." 27 It
would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an
undue diminution of judicial power to the prejudice of constitutional rights.
7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28
where a majority of five, lacking just one vote to enable this Court to reach a binding decision, did
arrive at the conclusion that the suspension of the privilege of the writ does not suspend the right to
bail. Thus: "By the same token, 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.
Thereupon the corresponding court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to
demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically,
it may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice
Laurel, drawing heavily on continental juristic thought, both of whom, having retired from the bench
and thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava
case.
It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in
confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer
for a criminal offense without due process of law. 31 That would explain why with full recognition of
the sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach
the same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo,
David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the
operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus
entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional
construction that if there are two possible modes of interpretation, that one which raises the least
constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That
interpretation which would throw the full mantle of protection afforded by the Constitution to those
unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high
estate accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable.32 Such a doctrine is no doubt partly traceable
to Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look
of being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more
than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a
most valuable substantive right. It would thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be
accorded acceptance. Thereby the number of individuals who would have to submit to further
detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is
manifested to the principle that liberty is the rule and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from
it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.

Separate Opinions

CASTRO and BARREDO, JJ., concurring:

While concurring fully in the opinion of the Court, we nevertheless write separately to answer, from
our own perspective, a point which Mr. Justice Fernando makes in his dissent. His view, as we
understand it, is that while an individual may be detained beyond the maximum detention period
fixed by law when the privilege of the writ of habeas corpus is suspended, such individual is
nevertheless entitled to be released from the very moment a formal complaint is filed in court against
him. The theory seems to be that from the time the charge is filed, the court acquires, because the
executive officials abdicate, jurisdiction.

This view is based on the separate opinion of Mr. Justice Pedro Tuason in Nava vs. Gatmaitan.1
Justice Tuason, in part, said:

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the court to keep their
hands off unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.

By the same token, if and when a 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...

But the issue to which the Supreme Court Justices in Nava individually addressed themselves is
radically disparate from that raised in these cases. There the question was whether after the
detainees had been formally charged in court and an order for their arrest had been issued, they
were entitled to bail. It was on that question that the Court was split 5 to 4, and it was the opinion of
Justice Tuason, one of the five, that after the detainees had been accused in court, the question of
release on bail was a matter that the court should decide.

Upon the other hand, the question here presented is whether the detainees should be released
forthwith upon the filing of charges against them in court and cannot thereafter be re-arrested except
only by court order. This is a totally different question. It is our submission that they are not entitled
to be released. The dissent is, we believe, based on the fallacy that when a formal charge is filed
against a person he is thereby surrendered to the court and the arresting officer is thereby divested
of custody over him. Except in a metaphorical sense, the detainee is not delivered or surrendered at
all to the judicial authorities. What the phrase "delivered to the court" simply means is that from the
time a person is indicted in court, the latter acquires jurisdiction over the subject-matter. 2 The
detainee remains in the custody of the detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable cause to order his arrest.

Under ordinary circumstances, when a person is arrested without a warrant and is charged in court,
he is not released. He is held until the judicial authority orders either his release or his confinement.
It is no argument to say that under Article III, section 1 (3) of the Constitution only a court can order
the arrest of an individual. Arrests without warrant are familiar occurrences, and they have been
upheld as constitutional.3

What is more, the privilege of the writ was suspended precisely to authorize the detention of persons
believed to be plotting against the security of the State until the courts can act on their respective
cases. To require their peremptory release upon the mere filing of charges against them, without
giving the proper court opportunity and time to decide the question of probable cause, would
obviously be to defeat the very basic purpose of the suspension. We think our role as judges in the
cases at bar is clear. After finding that the Presidential decree was validly issued, we should give it
effect. To uphold its validity and then try to dilute its efficacy in the name of personal liberty is, we
believe, actually to doubt the constitutionality of the exercise of the Presidential prerogative.

Not only that. If the rule were that the detainees must be released upon the mere filing of charges
against them in court, it is unlikely that the executive officials would have filed the charges because
of their awareness of the continuing danger which in the first place impelled the arrest of the
detainees, and the end result would be to inflict on the latter a much longer period of deprivation of
personal liberty than is warranted.

Whatever our personal views may be of the power to suspend, the fact remains that the power is
there, writ large and indubitable in the Constitution. It is far too easy to write anthologies on the side
of civil liberties or on the side of governmental order, depending on one's inclination or commitment.
But that is not our function. Constitutional issues, it has been said, do not take the form of right
versus wrong, but of right versus right. And the Court's function, as we see it, is, fundamentally to
moderate the clash of values, and not to inflate them into constitutional dimensions.

Where it is possible, we should avoid passing on a constitutional question. But where there is no
escape from the duty of abstention, our further duty is to decide the question of constitutional validity
on a less heroic plane.

And that is what we have tried to do in pointing out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice Fernando's problem. That solution is for the arresting
officer to hold the person detained until the court can act, with the only difference that where the
privilege of the writ of habeas corpus is available, the arresting officer must release the detainee
upon the expiration of the maximum detention time allowed by law, if he has not delivered the
detainee to the court within that period.

To insist on the procedural aspect of a constitutional problem as a manner of solving it is, after all,
no less to be libertarian. Insistence on it is, to us, and in point of fact, one of the cornerstone of
liberalism.

FERNANDO, J., concurring and dissenting:

The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions
in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal.
Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is
easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under
detention should not be set free. It is for me a source of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go
farther. Candor induces the admission though that the situation realistically viewed may not justify
going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of
constitutional rights, even under circumstances the least propitious, precludes me from joining my
brethren in that portion of the decision reached. Nor should I let this opportunity pass without
acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the
Chief Justice.

1. The function of judicial review fitly characterized as both delicate and awesome is never more so
than when the judiciary is called upon to pass on the validity of an act of the President arising from
the exercise of a power granted admittedly to cope with an emergency or crisis situation. More
specifically, with reference to the petitions before us, the question that calls for prior consideration is
whether the suspension of the privilege of the writ of habeas corpus is tainted by constitutional
infirmity. What the President did attested to an executive determination of the existence of the
conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights1 is
that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the
public safety requires, and, even, then, only in such places and for such period of time as may be
necessary.2 There is the further provision that the constitutional official so empowered to take such a
step is the President.3 The exceptional character of the situation is thus underscored. The
presumption would seem to be that if such a step were taken, there must have been a conviction on
the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him,
avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the
armor of what must have been a careful study on his part, in the light of relevant information which
as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is
considered further that the Constitution does admit that the sphere of individual freedom contracts
and the scope of governmental authority expands during times of emergency, it becomes manifest
why an even greater degree of caution and circumspection must be exercised by the judiciary when,
on this matter, it is called upon to discharge the function of judicial review.

2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if
it maintains that the existence of rebellion suffices to call for the disregard of the applicable
constitutional guarantees. Its implication would be that the Constitution ceases to be operative in
times of danger to national safety and security. Well has the American Supreme Court in the leading
case of Ex-parte Milligan4 stated: "The Constitution is a law for rulers and for people equally in war
and in peace and covers with the shield of its protection all classes of men at all times and under all
circumstances." This ringing affirmation should at the very least give pause to those troubled by the
continuing respect that must be accorded civil liberties under crisis conditions. The fact that the
Constitution provides for only one situation where a provision of the Bill of Rights may be
suspended, emphasizes the holding in the above-cited Milligan case that the framers of the
Constitution "limited the suspension to one great right and left the rest to remain forever inviolable."
While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled
era where a suspension has been decreed, such a view is to be taken into careful consideration.

3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to
apply its provisions in the determination of actual cases and controversies before it. Nor is this all.
The protection of the citizen and the maintenance of his constitutional rights is one of the highest
duties and privileges of the judiciary.5 The exercise thereof according to Justice Laurel requires that it
gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive
action.6 The supreme mandates of the Constitution are not to be loosely brushed aside.7 Otherwise,
the Bill or Rights might be emasculated into mere expressions of sentiment.8 Speaking of this Court,
Justice Abad Santos once pertinently observed: "This court owes its own existence to that great
instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this
court is bound by the provisions of the Constitution."9 Justice Tuason would thus apply the
constitutional rights with undeviating rigidity: "To the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience,
expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 10

It is in that context, to my mind, that the petitions before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus
occupies a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly
then could Chafee refer to the writ 'as the most important human rights provision' in the fundamental
law." Care is to be taken then lest in the inquiry that must be undertaken to determine whether the
constitutional requisites justifying a suspension are present, the effects thereof as to the other civil
liberties are not fully taken into account. It affords no justification to say that such a move was
prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the
view, as contended by one of the counsel for respondents, that between the safety of the
overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former must prevail.
That is to indulge in the vice of over simplification. Our fundamental postulate is that the state exists
to assure individual rights, to protect which governments are instituted deriving their just powers from
the consent of the governed. "The cardinal article of faith of our civilization," according to Frank
further, "is the inviolable character of the individual." 12

4. With all the admitted difficulty then that the function of judicial review presents in passing upon the
executive determination of suspending the privilege of the writ, there is still no way of evading such a
responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter
this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that
would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It
has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary
cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled
to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did,
challenge its validity. To repeat, this Court, even if denied the fullness of information and the
conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by
virtue of its competence but by the force of its commission a function authenticated by history. 13 That
would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of
liberty and equally against the erosion of possible encroachments, whether minute or extensive. 14
Even if there be no showing then of constitutional infirmity, at least one other branch of the
government, that to which such an awesome duty had been conferred has had the opportunity of
reflecting on the matter with detachment, with objectivity, and with full awareness of the commands
of the Constitution as well as the realities of the situation.

5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance
on the doctrine of political questions. The term has been made applicable to controversies clearly
non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately
subject to its cognizance, as to which there has been a prior legislative or executive determination to
which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where
the party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited
with accuracy, "political questions" should refer to such as would under the Constitution be decided
by the people in their sovereign capacity or in regard to which full discretionary authority is vested
either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon.
17
Unless, clearly falling within the above formulation, the decision reached by the political branches
whether in the form of a congressional act or an executive order could be tested in court. Where
private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost
sight of that such a power comes into play if there is an appropriate proceeding that may be filed
only after either coordinate branch has acted. Even when the Presidency or Congress possesses
plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a
justiciable controversy. 18 For the constitutional grant of authority is not usually unrestricted. There
are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into the question of whether or not either of the two
coordinate branches has adhered to what is laid down by the Constitution. The question thus posed
is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of
the Chief Justice.

6. The doctrine announced in Montenegro v. Castaeda 19 that such a question is political has thus
been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v.
Baker, a 1905 decision. 20 This Court was partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements from such illustrious American jurists as
Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the
case of Chief Justice Marshall, whose epochal Marbury v. Madison 21 was cited. Why that was so is
difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function
of judicial review owes its origin notwithstanding the absence of any explicit provision in the
American Constitution empowering the courts to do so. Thus: "It is emphatically the province and
duty of the judicial department to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule. If two laws conflict with each other, the courts
must decide on the operation of each. So if a law be in opposition to the constitution: if both the law
and the constitution apply to a particular case, so that the court must either decide that case
conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding
the law; the court must determine which of these conflicting rules governs the case. This is of the
very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must
govern the case to which they both apply." 22

Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v.
Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve
during the War of 1812. His property was taken to satisfy the judgment. He brought an action of
replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in
certain cases, and Congress did provide that in those cases the President should have authority to
make the call. All that Justice Story did in construing the statute in the light of the language and
purpose of her Constitution was to recognize the authority of the American President to decide
whether the exigency has arisen. In stating that such power was exclusive and thus had a
conclusive effect, he relied on the language employed, impressed with such a character. The
constitutional provision on the suspension of the privilege of the writ is, as shown, anything but that.
24
Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving the calling
out of the militia. As a matter of fact, an eminent commentator speaking of the two above decisions
had this apt observation: "The common element in these opinions would seem to be a genuine
judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not have
any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that
under a popular form of government there are certain questions that the political branches must be
trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be
dangerous and misleading to push the principles of these cases too far, especially the doctrine of
'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously
injured citizen relief from a palpably unwarranted use of presidential or military power, especially
when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court
will act as if it had never heard of this doctrine and its underlying assumption that there are some
powers against which the judiciary simply cannot be expected to act as the last line of defense." 27 It
would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail.
Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an
undue diminution of judicial power to the prejudice of constitutional rights.

7. With such presidential determination of the existence of the conditions required by the
Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other
branches, this Court may thus legitimately inquire into its validity. The question before us, it bears
repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is
valid. The starting point must be a recognition that the power to suspend the privilege of the writ
belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be
respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited
then to the ascertainment of whether or not such a suspension, in the light of the credible information
furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for
petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is
not the correctness but the reasonableness of the action taken. One who is not the Executive but
equally knowledgeable may entertain a different view, but the decision rests with the occupant of the
office. As would be immediately apparent even from a cursory perusal of the data furnished the
President, so impressively summarized in the opinion of the Chief Justice, the imputation of
arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where
the suspension operates as well as his instructions attested to a firm resolve on his part to keep
strictly within the bounds of his authority. Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is warranted commends itself for approval. The most that
can be said is that there was a manifestation of presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a forbidden domain lies. The requisite showing
of either improvidence or abuse has not been made.

8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes
of an executive action which if valid binds all who are within its operations. The function of enacting a
legal norm general in character appertains to either Congress or the President. Its specific
application to particular individuals, like petitioners here, is however a task incumbent on the
judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid,
any one may seek judicial determination as to whether he is embraced within its terms. After our
declaration of the validity of the Proclamation No. 889 as amended, the next question is its
applicability to petitioners. I am the first to recognize the meticulous care with which the Chief
Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that
their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter
to face. There is thus as assurance that as far as human foresight can anticipate matters, the
possibility of abuse is minimized.

The matter, for me, could be viewed independently of whether or not petitioners, by the conduct
imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive's determination to have them charged according to the
ordinary procedural rules, did present itself. There was thus introduced an element decisive in its
consequences. They are entitled to treatment no different from that accorded any other individual
facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such
an approach follows the dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28
where a majority of five, lacking just one vote to enable this Court to reach a binding decision, did
arrive at the conclusion that the suspension of the privilege of the writ does not suspend the right to
bail. Thus: "By the same token, 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.
Thereupon the corresponding court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to
demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically,
it may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice
Laurel, drawing heavily on continental juristic thought, both of whom, having retired from the bench
and thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava
case.

It would follow to my way of thinking then that the petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held
to answer, to be issued by a judge after a finding of probable cause. That is to comply with the
constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in
confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the
Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer
for a criminal offense without due process of law. 31 That would explain why with full recognition of
the sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach
the same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo,
David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the
operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus
entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional
construction that if there are two possible modes of interpretation, that one which raises the least
constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That
interpretation which would throw the full mantle of protection afforded by the Constitution to those
unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high
estate accorded constitutional rights.

There is another consideration that strengthens my conviction on the matter. The language of the
Constitution would seem to imply at the most that the suspension of the privilege of the writ renders
it unavailable for the time being. Still there are authorities sustaining the view that preventive
detention subject to the test of good faith is allowable.32 Such a doctrine is no doubt partly traceable
to Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look
of being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more
than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a
most valuable substantive right. It would thus serve the cause of constitutional rights better if the
Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be
accorded acceptance. Thereby the number of individuals who would have to submit to further
detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is
manifested to the principle that liberty is the rule and restraint the exception.

I am not of course insensible to the observation in the opinion of the Court that this concept could be
an obstacle to the early resumption of the ordinary judicial process as the Executive might be
minded to postpone resort to it, considering that there would necessarily be an end to the detention
at that early stage of individuals who continue to pose risk to the safety of the government. It does
occur to me, however, that the presumption should be that the high executive dignitaries can be
trusted to act in accordance with the dictates of good faith and the command of the Constitution. At
least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures
taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or
even from less worthy motives might make a mockey of the other constitutional rights. That is as it
should be. It should continue to be so even if there be acceptance of the doctrine enunciated by
Justice Tuason. There is, for me at least, no undue cause for pessimism.

These is to my mind another reinforcement to this approach to the question before us, perhaps one
based more on policy rather than strictly legal considerations. The petitioners who have not been
released are youth leaders, who for motives best known to them, perhaps excess of idealism,
impatience with existing conditions, even overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished through means of which the law does not
disapprove. It would be premature at this stage to say whether or not their activities have incurred for
them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even
they should recognize that the existing order has the right to defendant itself against those who
would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its
allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free
way of life seems to me, even at this stage, not without its beneficent influence on their future course
of conduct. This is not by any means to intimate that my brethren view matters differently. Far from
it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper
understanding of what has been decided by the Court today, there would be a diminution of the
wholesale condemnation of the present system of government by some sectors of the youth and
perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could
even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering
from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if
from all appearances their commitment and dedication are plain for all to see. More than that, such a
response will go a long way towards a keener appreciation of the merits of a constitutional
democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance
with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor
do I close my eyes to the risk that such an attitude towards those who constitute a source of danger
entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable.
Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.

9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for those inclined and disposed to differ and to be
vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the
desirability of removing from the President his power to suspend the privilege of the writ of habeas
corpus as well as the power to declare martial law. Nor would the government be lacking in authority
to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as
commander-in-chief can summon the aid of the armed forces to meet the danger posed to public
safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the
President to declare, there is a greater likelihood as far as the rights of the individual are concerned,
of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war
or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would
not be proper for the courts not to accord recognition to its exercise, if there be observance of the
limitations imposed by the Constitution. At the most, they can only through construction nullify what
would amount to an unconstitutional application. How desirable it would be then, to my way of
thinking, if the Constitution would strip the President of such power. That would be constitutionalism
triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong
for the liberties of the people nor too weak to maintain its existence. This is a matter though
appropriately addressed to the Constitutional Convention.

On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the
Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high degree of merit.

G.R. No. 2808 September 30, 1905

FELIX BARCELON, petitioner,


vs.
DAVID J. BAKER, JR., AND JOHN DOE THOMPSON, respondents.

Fisher and Cohn for petitioner.


Attorney-General Wilfley for respondents.

JOHNSON, J.:

This was an application by Fred C. Fisher and Charles C. Cohn, attorneys at law, on behalf of the
plaintiff, Felix Barcelon, for a writ of habeas corpus. The said application alleges, among other
things, the following:

(1) That the said applicant is detained and restrained of his liberty at the town of
Batangas, in the Province of Batangas, Philippine Islands.

(2) That the person who detained and restrained the said applicant of his liberty is
John Doe Thompson, captain of the Philippines Constabulary, acting under and in
pursuance of the orders of David J. Baker, Jr., colonel of the Philippines
Constabulary.

(3) That the detention and restraint of the said applicant is wholly without legal
authority therefor. [Here follows a statement of the alleged causes of arrest and
detention of the said applicant by the said defendants.]

(4) That the detention and restraint of the said applicant is not under or by virtue of
any process issued by any court or magistrate, nor by virtue of any judgment or order
of any court of record, nor of any court nor of any magistrate whatsoever.

(5) That there has not existed during any of the times in this petition mentioned, and
there does not now exist, is said Province of Batangas, Philippine islands, nor in any
part thereof, rebellion, insurrection, or invasion, nor any of them, in any form or
degree; and that all the courts of law, organized and provided by law for the Province
of Batangas, have been at all of the times hereinbefore mentioned in the full and
complete exercise of their functions, without interruption of any nature or kind.

Wherefore your petitioners pray that a writ of habeas corpus be issued, requiring the
said John Doe Thompson, captain of the Philippines Constabulary, and David J.
Baker, jr., colonel of the Philippines Constabulary, to bring before this honorable
court the person of the said Felix Barcelon, and that after a full hearing in accordance
with law the said Felix Barcelon be liberated and released from all restraint and
detention, and that respondents be enjoined from any and all interference with the
personal liberty of said Felix Barcelon, and to pay the costs of this proceeding.
(Signed) Fred C. Fisher. Charles C. Cohn. (The foregoing facts were duly sworn to
by the said applicants.)

The court, after considering the foregoing petition, made an order on the 3rd day of August, 1905,
directing the said David J. Baker, Jr., and the said John Doe Thompson to appear before this court
on the 4th day of August, 1905, at 9 o'clock a.m., to show cause why the writ of habeas corpus
should not be granted in accordance with the prayer of said petition.

At 9 o'clock a.m. on the 4th day of August the respondents, by the Attorney-General of the Philippine
Islands, through George R. Harvey, representing the latter, filed their answer to the foregoing
petition. By reason of the fact that the said answer failed to disclose whether or not the said Felix
Barcelon was actually detained and deprived of his liberty by the said respondents, the court
directed that said answer be amended, stating without equivocation whether or not Felix Barcelon
was actually detained by the said respondents, which amended answer, among other things,
contained the following allegations:

(1) That the writ of habeas corpus should not issue on the application filed herein,
because the court is without jurisdiction or authority to grant the privilege of the writ
of habeas corpus in the Province of Batangas, for the reason that on January 31,
1905, the Governor-General, pursuant to a resolution and request of the Philippine
Commission, suspended said writ in the Provinces of Cavite and Batangas, in
accordance with the provisions of section 5 of the act of congress known as "The
Philippine Bill," the Philippine Commission and the Governor-General basing such
suspension upon the fact that certain organized bands of ladrones in said provinces
were in open insurrection against the constituted authorities; and the said bands, or
parts of them, and some of their leaders, were still in open resistance to the
constituted authorities. The said resolution of the Commission and the said
proclamation of the Governor-General are in the words following:

"RESOLUTION OF THE PHILIPPINE COMMISSION DATED JANUARY 31, 1905.

"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and
Batangas who are levying forced contributions upon the people, who frequently
require them, under compulsion, to join their bands, and who kill or maim in the most
barbarous manner those who fail to respond to their unlawful demands, and are
therefore terrifying the law-abiding and inoffensive people of those provinces; and

"Whereas these bands have in several instances attacked police and Constabulary
detachments, and are in open insurrection against the constituted authorities; and

"Whereas it is believed that these bands have numerous agents and confederates
living within the municipalities of the said provinces; and

"Whereas, because of the foregoing conditions, there exists a state of insecurity and
terrorism among the people which makes it impossible in the ordinary way to conduct
preliminary investigations before justices of the peace and other judicial officers:
Now, therefore,

"Be it resolved, That, the public safety requiring it, the Governor-General is hereby
authorized and requested to suspend the writ of habeas corpus in the Provinces of
Cavite and Batangas.

EXECUTIVE ORDER } "MANILA, January 31, 1905.


NO. 6. }

"Whereas certain organized bands of ladrones exist in the Provinces of Cavite and
Batangas who are levying forced contributions upon the people, who frequently
require them, under compulsion, to join their bands, and who kill or maim in the most
barbarous manner those who fail to respond to their unlawful demands, and are
therefore terrifying the law-abiding and inoffensive people of those provinces; and

"Whereas these bands have in several instances attacked police and Constabulary
detachments, and are in open insurrection against the constituted authorities, and it
is believed that the said bands have numerous agents and confederates living within
the municipalities of the said provinces; and

"Whereas, because of the foregoing conditions there exists a state of insecurity and
terrorism among the people which makes it impossible in the ordinary way to conduct
preliminary investigations before the justices of the peace and other judicial officers:

"In the interest of public safety, it is hereby ordered that the writ of habeas corpus is
from this date suspended in the Provinces of Cavite and Batangas.

"(Signed) LUKE E. WRIGHT,


"Governor-General."
(2) Not waiving the question of jurisdiction, the respondents state that it is true that
Felix Barcelon was detained in the month of April, 1905, by order of Colonel David J.
Baker, Jr., assistant chief of the Philippines constabulary, and that the said Barcelon
is now detained under the surveillance of Captain W.E. Thompson, senior inspector
of Constabulary, in the province of Batangas.

By this answer the respondents admit that they are detaining the body of the said Felix Barcelon,
and deny the right of this court to inquire into the reasons therefor by virtue of the said resolution of
the Philippine commission and the executive order of the Governor-General, issued by authority of
the same, suspending the privilege of the writ of habeas corpus in the said Provinces of Cavite and
Batangas.

Thus the question is squarely presented whether or not the judicial department of the Government
may investigate the facts upon which the legislative and executive branches of the Government
acted in providing for the suspension and in actually suspending the privilege of the writ of habeas
corpus in said provinces. has the Governor-General, with the consent of the Commission, the right to
suspend the privilege of the writ of habeas corpus? If so, did the Governor-General suspend the writ
of habeas corpus in the Provinces of Cavite and Batangas in accordance with such authority?

A paragraph of section 5 of the act of Congress of July 1, 1902, provides:

That the privilege of the writ of habeas corpus shall not be suspended, unless when
in cases of rebellion, insurrection, or invasion the public safety may require it, in
either of which events the same may be suspended by the President, or by the
Governor-General with the approval of the Philippine Commission, whenever during
such period the necessity for such suspension shall exist.

This provision of the act of Congress is the only provision giving the
Governor-General and the Philippine commission authority to suspend the privilege of the writ of
habeas corpus. No question has been raised with reference to the authority of Congress to confer
this authority upon the President or the Governor-General of these Islands, with the approval of the
Philippine Commission.

This provision of the act of Congress makes two conditions necessary in order that the President or
the Governor-General with the approval of the Philippine Commission may suspend the privilege of
the write of habeas corpus. They are as follows:

(1) When there exists rebellion, insurrection, or invasion; and

(2) When public safety may require it.

In other words, in order that the privilege of the writ of habeas corpus may be suspended, there must
exist rebellion, insurrection, or invasion, and the public safety must require it. This fact is admitted,
but the question is, Who shall determine whether there exists a state of rebellion, insurrection, or
invasion, and that by reason thereof the public safety requires the suspension of the privilege of the
write of habeas corpus?

It has been argued and admitted that the Governor-General, with the approval of the Philippine
Commission, has discretion, when insurrection, rebellion, or invasion actually exist, to decide
whether the public safety requires the suspension of the privilege of the writ of habeas corpus; but
the fact whether insurrection, rebellion, or invasion does actually exist is an open question, which the
judicial department of the Government may inquire into and that the conclusions of the legislative
and executive departments (the Philippine Commission and the Governor-General) of the
government are not conclusive upon that question.

In other words, it is contended that the judicial department of the Government may consider an
application for the writ of habeas corpus, even though the privileges of the same have been
suspended, in the manner provided by law, for the purposes of taking proof upon the question
whether there actually exists a state of insurrection, rebellion, or invasion.

The applicants here admit that if a state of rebellion, insurrection, or invasion exists, and the public
safety is in danger, then the President, or Governor-General with the approval of the Philippine
Commission, may suspend the privilege of the writ of habeas corpus.

Inasmuch as the President, or Governor-General with the approval of the Philippine commission,
can suspend the privilege of the writ of habeas corpus only under the conditions mentioned in the
said statute, it becomes their duty to make an investigation of the existing conditions in the
Archipelago, or any part thereof, to ascertain whether there actually exists a state of rebellion,
insurrection, or invasion, and that the public safety requires the suspension of the privilege of the writ
of habeas corpus. When this investigation is concluded, the President, or the Governor-General with
the consent of the Philippine commission, declares that there exist these conditions, and that the
public safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial
department of the Government investigate the same facts and declare that no such conditions exist?

The act of Congress, above quoted, wisely provides for the investigation by two departments of the
Government the legislative and executive of the existing conditions, and joint action by the two
before the privilege of the writ of habeas corpus can be suspended in these Islands.

If the investigation and findings of the President, or the Governor-General with the approval of the
Philippine Commission, are not conclusive and final as against the judicial department of the
Government, then every officer whose duty it is to maintain order and protect the lives and property
of the people may refuse to act, and apply to the judicial department of the Government for another
investigation and conclusion concerning the same conditions, to the end that they may be protected
against civil actions resulting from illegal acts.

Owing to conditions at times, a state of insurrection, rebellion, or invasion may arise suddenly and
may jeopardize the very existence of the State. Suppose, for example, that one of the thickly
populated Governments situated near this Archipelago, anxious to extend its power and territory,
should suddenly decide to invade these Islands, and should, without warning, appear in one of the
remote harbors with a powerful fleet and at once begin to land troops. The governor or military
commander of the particular district or province notifies the Governor-General by telegraph of this
landing of troops and that the people of the district are in collusion with such invasion. Might not the
Governor-General and the Commission accept this telegram as sufficient evidence and proof of the
facts communicated and at once take steps, even to the extent of suspending the privilege of the writ
of habeas corpus, as might appear to them to be necessary to repel such invasion? It seems that all
men interested in the maintenance and stability of the Government would answer this question in the
affirmative.

But suppose some one, who has been arrested in the district upon the ground that his detention
would assist in restoring order and in repelling the invasion, applies for the writ of habeas corpus,
alleging that no invasion actually exists; may the judicial department of the Government call the
officers actually engaged in the field before it and away from their posts of duty for the purpose of
explaining and furnishing proof to it concerning the existence or nonexistence of the facts proclaimed
to exist by the legislative and executive branches of the State? If so, then the courts may effectually
tie the hands of the executive, whose special duty it is to enforce the laws and maintain order, until
the invaders have actually accomplished their purpose. the interpretation contended for here by the
applicants, so pregnant with detrimental results, could not have been intended by the Congress of
the United States when it enacted the law.

It is the duty of the legislative branch of the Government to make such laws and regulations as will
effectually conserve peace and good order and protect the lives and property of the citizens of the
State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for
the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict
enforcement of laws under the conditions mentioned necessarily tend to jeopardize public interests
and the safety of the whole people. If the judicial department of the Government, or any officer in the
Government, has a right to contest the orders of the President or of the Governor-General under the
conditions above supposed, before complying with such orders, then the hands of the President or
the Governor-General may be tied until the very object of the rebels or insurrectos or invaders has
been accomplished. But it is urged that the president, or the Governor-General with the approval of
the Philippine Commission, might be mistaken as to the actual conditions; that the legislative
department the Philippine
Commission might, by resolution, declare after investigation, that a state of rebellion, insurrection,
or invasion exists, and that the public safety requires the suspension of the privilege of the writ of
habeas corpus, when, as a matter of fact, no such conditions actually existed; that the President, or
Governor-General acting upon the authority of the Philippine commission, might by proclamation
suspend the privilege of the writ of habeas corpus without there actually existing the conditions
mentioned in the act of Congress. In other words, the applicants allege in their argument in support
of their application for the writ of habeas corpus, that the legislative and executive branches of the
Government might reach a wrong conclusion from their investigations of the actual conditions, or
might, through a desire to oppress and harass the people, declare that a state of rebellion,
insurrection, or invasion existed and that public safety required the suspension of the privilege of the
writ of habeas corpus when actually and in fact no such conditions did exist. We can not assume
that the legislative and executive branches will act or take any action based upon such motives.

Moreover it can not be assumed that the legislative and executive branches of the Government, with
all the machinery which those branches have at their command for examining into the conditions in
any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It
is the duty of the executive branch of the Government to constantly inform the legislative branch of
the Government of the condition of the Union as to the prevalence of peace or disorder. The
executive branch of the government, through its numerous branches of the civil and military, ramifies
every portion of the Archipelago, and is enabled thereby to obtain information from every quarter and
corner of the State. Can the judicial department of the Government, with its very limited machinery
for the purpose of investigating general conditions, be any more sure of ascertaining the true
conditions throughout the Archipelago, or in any particular district, than the other branches of the
Government? We think not.

We are of the opinion that the only question which this department of the Government can go into
with reference to the particular questions submitted here are as follows:

(1) Admitting the fact that Congress had authority to confer upon the President or the Governor-
General and the Philippine Commission authority to suspend the privilege of the writ of habeas
corpus, was such authority actually conferred? and

(2) Did the Governor-General and the Philippine Commission, acting under such authority, act in
conformance with such authority?
If we find that Congress did confer such authority and that the Governor-General and the Philippine
Commission acted in conformance with such authority, then this branch of the Government is
excluded from an investigation of the facts upon which the Governor-General and the Philippine
Commission acted, and upon which they based the resolution of January 31, 1905, and the
executive order of the Governor-General of the same date. Under the form of government
established in the Philippine Islands, one department of the Government has no power or authority
to inquire into the acts of another, which acts are performed within the discretion of the other
department.

Upon an examination of the law we conclude:

First. That the paragraph of section 5, above quoted, of the act of Congress of July 1, 1902, confers
upon the Governor-General and the Philippine Commission the right to suspend the privilege of the
writ of habeas corpus under the conditions therein named.

Second. That the Philippine Commission, acting within the discretion which such act of Congress
confers upon them, did authorize the Governor-General, by its resolution of January 31, 1905, to
suspend the privilege of the writ of habeas corpus in the manner and form indicated in the said
executive order of the Governor-General of January 31, 1905.

The said resolution of the Philippine Commission has the effect of law for the purposes for which it
was enacted. The judicial department of the Government may examine every law enacted by the
legislative branch of the Government for the purpose of ascertaining:

(a) Whether or not such law came within the subject-matter upon which the legislative branch of the
Government might legislate; and

(b) Whether the provisions of such law were in harmony with the authority given the legislature.

If the judicial branch of the Government finds

(a) That the legislative branch of the Government had authority to legislate upon the particular
subject; and

(b) That the particular law contained no provisions in excess of such department, then that
investigation, or that conclusion, conclusively terminates the investigation by this department of the
Government.

We base our conclusions that this application should be denied upon the following facts:

First. Congress had authority to provide that the President, or the Governor-General, with the
approval of the Philippine Commission, might suspend the privilege of the writ of habeas corpus in
cases of rebellion, insurrection, or invasion, when the public safety might require it.

Second. That the Philippine Commission, acting within this power, had authority to pass the
resolution above quoted, of January 31, 1905, after an investigation of the conditions.

Third. That by virtue of said act of Congress, together with said resolution of the Philippine
commission, the Governor-General had authority to issue the said executive order of January 31,
1905, suspending the privilege of the writ of habeas corpus.
Fourth. That the conclusion set forth in the said resolution and the said executive order, as to the
fact that there existed in the Provinces of Cavite and Batangas open insurrection against the
constituted authorities, was a conclusion entirely within the discretion of the legislative and executive
branches of the Government, after an investigation of the facts.

Fifth. That one branch of the United States Government in the Philippine Islands has no right to
interfere or inquire into, for the purpose of nullifying the same, the discretionary acts of another
independent department of the Government.

Sixth. Whenever a statute gives to a person or a department of the Government discretionary power,
to be exercised by him or it, upon his or its opinion of certain facts, such statute constitutes him or it
the sole and exclusive judge of the existence of those facts.

Seventh. The act of Congress gave to the President, or the Governor-General with the approval of
the Philippine Commission, the sole power to decide whether a state of rebellion, insurrection, or
invasion existed in the Philippine Archipelago, and whether or not the public safety required the
suspension of the privilege of the writ of habeas corpus.

Eighth. This power having been given and exercised in the manner above indicated, we hold that
such authority is exclusively vested in the legislative and executive branches of the Government and
their decision is final and conclusive upon this department of the Government and upon all persons.

Happily we are not without high authority to support the foregoing conclusions. This is not the first
time this same question has been presented in one form or another to the judicial department of the
Government of the United States, as well as to the Government of the various States of the Union.

The same general question presented here was presented to the Supreme Court of the United
States in the case of Martin vs. Mott, in January, 1827. An act of Congress of 1795 provided

That whenever the United States shall be invaded or be in imminent danger of


invasion from any foreign nation or Indian tribe, it shall be lawful for the President of
the United States to call forth such number of the militia of the State or States most
convenient to the place of danger or scene of action, as he may judge necessary to
repel such invasion, and to issue his orders for that purpose to such officer or officers
of the militia as he shall think proper.

In this case (Martin vs. Mott) the question was presented to the court whether or not the President's
action in calling out the militia was conclusive against the courts. The Supreme Court of the United
States, in answering this question, said:

The power thus confided by Congress to the President is, doubtless, of a very high
and delicate nature. A free people are naturally jealous of the exercise of military
power; and the power to call the militia into actual service is certainly felt to be one of
no ordinary magnitude. But it is not a power which can be executed without
corresponding responsibility. It is, in its terms, a limited power, confined to cases of
actual invasion, or of imminent danger of invasion. If it be a limited power, the
question arises, By whom is the exigency to be adjudged of and decided? is the
President the sole and exclusive judge whether the exigency has arisen, or is it to be
considered as an open question, upon which every officer to whom the orders of the
President are addressed, may decide for himself, and equally open to be contested
by every militiaman who shall refuse to obey the orders of the President? We are all
of the opinion that the authority to decide whether the exigency has arisen belongs
exclusively to the President and his decision is conclusive upon all other persons.
We think that this construction necessarily results from the nature of the power itself
and from the manifest object contemplated by the act of Congress. The power itself
is to be exercised upon sudden emergencies, upon great occasions of state and
under circumstances which may be vital to the existence of the Union. ... If a superior
officer has a right to contest the orders of the President, upon his own doubts as to
the exigency having arisen, it must be equally the right of every inferior officer and
soldier ... . Such a course would be subversive of all discipline and expose the best
disposed officer to the chances of erroneous litigation. Besides, in many instances,
the evidence upon which the President might decide that there is imminent danger of
invasion might be of a nature not constituting strict technical proof, or the disclosure
of the evidence might reveal important secrets of state which the public interest and
even safety might imperiously demand to be kept in concealment.

Whenever the statute gives a discretionary power to any person, to be exercised by


him upon his own opinion of certain facts, it is a sound rule of construction that the
statute constitutes him the sole and exclusive judge of the existence of those facts.
And in the present case we are all of opinion that such is the true construction of the
act of 1795. It is no answer that such power may be abused, for there is no power
which is not susceptible of abuse. (Martin vs. Mott, 12 Wheat., 19 (25 U.S.);
Vanderheyden vs. Young, 11 Johns., N.Y., 150.)

Justice Joseph Story, for many years a member of the Supreme Court of the United States, in
discussing the question who may suspend the privilege of the writ of habeas corpus, under the
Constitution of the United States, said:

It would seem, as the power is given to Congress to suspend the writ of habeas
corpus in cases of rebellion, insurrection, or invasion, that the right to judge whether
the exigency has arisen must conclusively belong to that body. (Story on the
Constitution, 5th ed., sec. 1342.)

Justice James Kent, for many years a justice of the supreme court of the State of New York, in
discussing the same question, cites the case of Martin vs. Mott, and says:

In that case it was decided and settled by the Supreme Court of the United States
that it belonged exclusively to the President to judge when the exigency arises in
which he had authority, under the Constitution, to call forth the militia, and that his
decision was conclusive upon all other persons. (Kent's Commentaries, 14th ed., vol.
1, bottom p. 323.)

John Randolph Tucker, for many years a professor of constitutional and international law in
Washington and Lee University, in discussing this question said:

By an act passed in 1795 Congress gave to the President power to call out the militia
for certain purposes, and by subsequent acts, in 1807, power was given to him to be
exercised whenever he should deem it necessary, for the purposes stated in the
Constitution; and the Supreme Court (United States) has decided that this executive
discretion in making the call (for State militia) could not be judicially questioned.
(Tucker on the Constitution, Vol. II, p. 581.)

John Norton Pomeroy, an eminent law writer upon constitutional questions, said:
In Martin vs. Mott it was decided that under the authority given to the President by
the statute of 1795, calling forth the militia under certain circumstances, the power is
exclusively vested in him to determine whether those circumstances exist; and when
he has determined by issuing his call, no court can question his decision."
(Pomeroy's Constitutional Law, sec. 476.)

Henry Campbell Black, a well-known writer on the Constitution, says:

By an early act of Congress it was provided that in case of an insurrection in any


State against the government thereof, it shall be lawful for the President of the United
States, on application of the legislature of such State, or of the executive (when the
legislature can not be convened), to call forth such a number of the militia of any
other State or States as may be applied for, as he may judge sufficient to suppress
such insurrection. By this act the power of deciding whether the exigency has arisen
upon which the Government of the United States is bound to interfere is given to the
President. (Black's Constitutional Law, p. 102.)

Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to
interfere with the discretionary action of the other departments of the Government, in his work on
constitutional law, said:

Congress may confer upon the President the power to call them (the militia) forth,
and this makes him the exclusive judge whether the exigency has arisen for the
exercise of the authority and renders one who refuses to obey the call liable to
punishment under military law. (Cooley's Principles of Constitutional Law, p. 100.)

But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the
Governor-General, with the approval of the Philippine Commission, are not conclusive upon the
courts and that none of the foregoing citations are exactly in point, that none of these cases or
authors treat of a case exactly like the one presented. We are fortunate, however, in being able to
cite, in answer to that contention, the case of Henry William Boyle, where exactly the same question
was presented to the supreme court of the State of Idaho, which the applicants present here and
where the courts held the doctrine of the cases applied. In the case of Boyle, he had been arrested
after the privilege of the writ of habeas corpus had been suspended. He applied for a writ of habeas
corpus to the supreme court of Idaho, alleging, among other things, in his application:

First. That "no insurrection, riot, or rebellion now exists in Shoshone County;" and

Second. That "the Governor has no authority to proclaim martial law or suspend the writ of habeas
corpus."

In reply to this contention on the part of the applicant, Boyle, the court said:

Counsel have argued ably and ingeniously upon the question as to whether the
authority to suspend the writ of habeas corpus rests with the legislative and
executive powers of the Government, but, from our views of this case, that question
cuts no figure. We are of the opinion that whenever, for the purpose of putting down
insurrection or rebellion, the exigencies of the case demand it, with the successful
accomplishment of this end in view, it is entirely competent for the executive or for
the military officer in command, if there be such, either to suspend the writ or
disregard it if issued. The statutes of this State (Idaho) make it the duty of the
governor, whenever such a state or condition exists as the proclamation of the
governor shows does exist in Shoshone County, to proclaim such locality in a state
of insurrection and to call in the aid of the military of the State or of the Federal
Government to suppress such insurrection and reestablish permanently the
ascendency of the law. It would be an absurdity to say that the action of the
executive, under such circumstance, may be negatived and set at naught by the
judiciary, or that the action of the executive may be interfered with or impugned by
the judiciary. If the courts are to be made a sanctuary, a seat of refuge whereunto
malefactors may fall for protection from punishment justly due for the commission of
crime they will soon cease to be that palladium of the rights of the citizen so ably
described by counsel.

On application for a writ of habeas corpus, the truth of recitals of alleged facts in a
proclamation issued by the governor proclaiming a certain county to be in a state of
insurrection and rebellion will not be inquired into or reviewed. The action of the
governor in declaring Shoshone County to be in state of insurrection and rebellion,
and his action in calling to his aid the military forces of the United States for the
purpose of restoring good order and the supremacy of the law, has the effect to put
in force, to a limited extent, martial law in said county. Such action is not in violation
of the Constitution, but in harmony with it, being necessary for the preservation of
government. In such case the Government may, like an individual acting in self-
defense, take those steps necessary to preserve its existence. If hundreds of men
can assemble themselves and destroy property and kill and injure citizens, thus
defeating the ends of government, and the Government is unable to take all lawful
and necessary steps to restore law and maintain order, the State will then be
impotent if not entirely destroyed, and anarchy placed in its stead.

It having been demonstrated to the satisfaction of the governor, after some six or
seven years of experience, that the execution of the laws in Shoshone County
through the ordinary and established means and methods was rendered practicably
impossible, it became his duty to adopt the means prescribed by the statute for
establishing in said county the supremacy of the law and insuring the punishment of
those by whose unlawful and criminal acts such a condition of things has been
brought about; and it is not the province of the courts to interfere, delay, or place
obstructions in the path of duty prescribed by law for the executive, but rather to
render him all the aid and assistance in their power, in his efforts to bring about the
consummation most devoutly prayed for by every good, law-abiding citizen in the
State. (In re Boyle, 45 L.R.A., 1899, 832.)

The doctrine that whenever the Constitution or a statute gives a discretionary power to any person,
to be exercised by him upon his own opinion of certain facts, such person is to be considered the
sole and exclusive judge of the existence of those facts, has been recognized, not only by the
Supreme Court of the United States but by practically all of the supreme courts of the different
States, and has never been disputed by any respectable authority. The following cases are cited in
support of this doctrine:

Martin vs. Mott (1827), 12 Wheat., 19 (25 U. S. Rep.).


Luther vs. Borden (1849), 7 How., 44, 77.
Wilkes vs. Dinsman (1849), 7 How., 130, 131.
Murray vs. Hoboken, etc., Co. (1855), 18 How., 280.
United States vs. Speed (1868), 8 Wall., 83.
Mullan vs. United States (1890), 140 U.S., 245.
Nishimura Ekiu vs. United States (1891), 142 U.S., 660.
Lem Moon Sing vs. United States (1894), 158 U.S., 538.
Ex parte Field (1862), 5 Blatch., 77, 81 (Fed. Case No. 4761).
Allen vs. Blunt, 3 Story, 745 (Fed. Case No. 216).
Gould vs. Hammond, 1 McAll., 237, 239 (Fed. Case 5638).
United States vs. Packages (1862), 27 Fed. Case, 288, 289.
United States vs. Cement (1862), 27 Fed. Case, 293.
United States vs. Cotton (1872), 27 Fed. Case, 325, 328.
United States vs. Tropic Wind, 28 Fed. Case, 221.
In re Day, 27 Fed. Rep., 680.
Hammer vs. Mason, 24 Ala., 485.
People vs. Pacheco (1865), 27 Cal., 223.
Porter vs. Haight (1873), 45 Cal., 639.
Evansville and C. Ry. Co. vs Evansville, 15 Ind., 421.
Koehler vs. Hill, 60 Ia., 566.
People vs. Wayne (1878), 39 Mich., 20.
State vs. Town of Lime (1877), 23 Minn., 526.
People vs. Parker, 3 Nebraska, 432.
Kneedler vs. Lane (1863), 45 Penn. St., 292.
In re Legislative Adjournment (1893), 18 Rhode Island, 834; 22 L.R.A., 716.
Chapin vs. Ferry (1891), 3 Washington, 396; 28 Pac. Rep., 758; 15 L.R.A., 120.
Druecker vs. Solomon, 21 Wis., 621; 94 Am. Dec., 571.
People vs. Bissell (1857), 19 Ill., 229, 232, 233.
Sutherland vs. Governor (1874) 29 Mich., 320, 330.
Ambler vs. Auditor-General (1878), 38 Mich., 746, 751.
State vs. Warmoth (1870), 22 La. An. Rep., 1; 13 Am. Rep., 126.
Jonesboro, etc., Co. vs. Brown (1875), 8 Baxter (Tenn.) 490; 35 Am. Rep., 713.

In the case of the United States vs. Packages, above cited, the court, in discussing the authority of
the judicial department of the Government to interfere with the discretionary powers of the executive
and legislative, said:

The doctrine involved has been fully discussed in several cases decided by this court during the last
fifteen months, and was virtually settled long ago by the United States Supreme Court. The judiciary,
under the Constitution, can not declare war or make peace. It is clothed with no such power, and can
not be clothed with it. Whatever power is vested by the Constitution in one department of the
Government can not be usurped by another. If one should wholly refuse to act, or should undertake
to divest itself, or abdicate its legitimate functions, it would by no means follow that another
department, expressly limited to specific duties, would thereby acquire ungranted powers. The
abdication of executive functions by the executive, for instance, would not constitute the judicial the
executive department of the country; nor would a failure or refusal of the legislative to pass needed
statutes constitute the executive the law-making power. Each department has its true boundaries
prescribed by the Constitution, and it can not travel beyond them. (United States vs. Ferreira (1851),
13 How., 40; Little vs. Barreme (1804), 2 Cranch, 170.)

The condition of peace or war, public or civil, in a legal sense, must be determined by
the political department, not the judicial. The latter is bound by the decision thus
made. The act of 1795 and the act of July 13, 1861, vests the President with the
power to determine when insurrection exists, and to what extent it exists. The United
States Constitution vests Congress with the power "to provide for calling forth the
militia to execute the laws of the Union, to suppress insurrection, and repel invasion;
to declare war ... and make rules concerning captures on land and water." In the
execution of that power, Congress passed the act cited above.
By the act of 1795 the Supreme Court says: "The power of deciding whether the
exigency had arisen upon which the Government of the United States is bound to
interfere, is given to the President." ... After the President has acted, is a circuit court
of the United States authorized to inquire whether his decision was right? could the
court, while the parties were actually contending in arms for the possession of the
government, call witnesses before it and inquire which party represented a majority
of the people? ... If the judicial power extends so far, the guaranty contained in the
Constitution of the United States is a guaranty of anarchy, and not of order. yet if this
right does not reside in the courts when the conflict is raging; if the judicial power is
at that time bound to follow the decision of the political (department of the
Government), it must be equally bound when the contest is over. At all events, it (the
power to decide) is conferred upon him (the President) by the Constitution and laws
of the United States, and must therefore be respected and enforced in its judicial
tribunals. (Luther vs. Borden (1849), 7 How., 43, 44; Martin vs. Mott (1827), 12
Wheat., 29-31.)

The same doctrine has been uniformly maintained from the commencement of the Government. The
absurdity of any other rule is manifest. If during the actual clash of arms the courts were rightfully
hearing evidence as to the fact of war, and, either with or without the said juries, determining the
question, they should have power to enforce their decisions. In case of foreign conflicts neither
belligerent would be likely to yield to the decision; and, in case of insurrection, the insurgents would
not cease their rebellion in obedience to a judicial decree. In short, the status of the country as to
peace or war is legally determined by the political (department of the Government) and not by the
judicial department. When the decision is made the courts are concluded thereby, and bound to
apply the legal rules which belong to that condition. The same power which determines the
existence of war or insurrection must also decide when hostilities have ceased that is, when
peace is restored. In a legal sense the state of war or peace is not a question in pais for courts to
determine. It is a legal fact, ascertainable only from the decision of the political department. (The
Fortuna (1818), 3 Wheat., 236; United States vs. Palmer (1818), 3 Wheat., 610; Nuestra Seora,
etc. (1819), 4 Wheat., 497; Santissima Trinidad (1822), 7 Wheat., 283; Rose vs. Himely (1806), 4
Cranch, 241; Foster vs. Neilson (1829), 2 Peters, 253.)

Under the act of Congress of July 13, 1861, the President of the United States, on the 16th day of
August, 1861, proclaimed that the State of Tennessee was in a state of insurrection. The courts, in
discussing the right of the President to decide upon the necessities of such proclamation and the
period within which it should continue, said:

The legal status thus determined must remain so long as the condition of hostilities
continues. He (the President) has never made a counter proclamation, nor has
peace been officially announced. As a legal condition that status (of insurrection) is
independent of actual daily strife in arms. A legal condition of hostilities may exist
long after the last battle has been fought between the opposing armies. That
condition (of insurrection or rebellion) ceases when peace is concluded through
competent authority; not before. ... Within any construction which could be very well
given to the President's proclamation, no part of that State (Tennessee) maintains as
yet a loyal adhesion to the Union and Constitution. It is the duty of the President,
however, to decide that point. Until he declares to the contrary, the court must hold
that the legal condition of hostility continues. The exceptions in the proclamation, so
far as made by the President, courts can and must enforce. But if it be correct that by
the terms of that proclamation the President intended to devolve on the courts the
duty of determining judicially the status of a State or part of a State by an inquiry into
its loyalty, or its occupation from time to time by the United States forces irrespective
of a decision thereon by the executive, still courts could not then acquire the power.
The limits upon their constitutional and legal functions could not thus be enlarged.
Political power could not be so delegated to the courts. They (the courts) can not be
charged with any duties not judicial; "judicial power" alone is invested in them (the
courts) under the Constitution. (United States vs. Packages (1862), 27 Fed. Case,
288, 289.)"

In the case of Druecker vs. Solomon (21 Wis., 621; 94 Am. Dec., 571, 576, 577) the supreme court
of Wisconsin, in an action for false imprisonment for the arrest and detention during a state of
insurrection, etc., the court cites and approves of the doctrine laid down by the Supreme Court of the
United States in the case of Martin vs. Mott (12 Wheat., 19) and holds that the action of the political
department of the Government in such cases is final and conclusive against the judicial department.

John Marshall, for many years Chief Justice of the Supreme Court of the United States, in
discussing the rights of one department of the Government to interfere with the discretionary powers
of another, said, in the case of Marbury vs. Madison ( [1803], 1 Cranch, 137, 164):

By the Constitution of the United States the President is invested with certain
important political powers, in the exercise of which he has to use his own discretion,
and is accountable only to his country in his political character, and to his own
conscience. ... The subjects are political; they respect the nation, not individual
rights, and, being intrusted to the executive, the decision of the executive is
conclusive. The application of this remark will be received by adverting to the act of
congress for establishing the department of foreign affairs. This officer, as his duties
were prescribed by that act, is to conform precisely to the will of the President; he is
the mere organ by whom that will is communicated. The acts of such an officer, as
an officer, can never be examinable by the courts. ... The conclusion from this
reasoning is that where the heads of departments are the political or confidential
agents of the executive, merely to execute the will of the President or rather to act in
cases in which the executive possesses a constitutional or a legal discretion, nothing
can be more perfectly clear than that their acts are only politically examinable.

In the case of Rice vs. Austin (19 Minn., 103) the supreme court of Minnesota held that "the judicial
and executive departments of the government are distinct and independent and neither is
responsible to the other for the performance of its duties and neither can enforce the performance of
the duties of the other." It may be said that in Minnesota this decision was based upon a
constitutional provision. This is true, but the fact that the people of the State of Minnesota, by
constitutional provision prohibited one independent department of the government from interfering or
attempting to administer the duties of another, all the more reenforces the doctrine contended for
here. Many of the States do permit the judicial department by mandamus to direct the executive
department to perform purely ministerial duties. In Minnesota, however, the judicial department will
not attempt to coerce the performance of even ministerial duties on the part of the executive.

In the case of Luther vs. Borden (7 How., 44) it was held that the decision and determination of
matters of a purely political character by the executive or legislative department of the Government
was binding on every other department of the Government and could not be questioned by a judicial
tribunal. The dangers and difficulties which would grow out of the adoption of a contrary rule are by
Chief Justice Taney in this case clearly and ably pointed out. Chief Justice Taney, referring to the
power given to the President with reference to the right to decide whether it was necessary, on
account of a possible invasion, to call out the militia, said:

By this act (act of Congress of 1795) the power of deciding whether the exigency had
arisen upon which the Government of the United States is bound to interfere is given
to the President. ... After the President has acted and called out the militia, is a circuit
court of the United States authorized to inquire whether his decision is right? Could
the court, while the parties were actually contending in arms for the possession of the
government, call witnesses before it and inquire which party represented the majority
of the people? If it could, then it would become the duty of the court (provided it came
to the conclusion that the President had decided incorrectly) to discharge those who
were arrested or detained by the troops in the service of the United States or the
government which the President was endeavoring to maintain. If the judicial power
extends so far, the guaranty contained in the Constitution of the United States is a
guaranty of anarchy and not of order. Yet if this right does not reside in the court
when the conflict is raging, if the judicial power is at that time bound to follow the
decision of the political, it must be equally bound when the contest is over. . . .

It is said that this power in the President is dangerous to liberty and may be abused.
All power may be abused if placed in unworthy hands; but it would be difficult, we
think, to point out any other hands in which this power would be more safe, and at
the same time equally effectual. When citizens of the same State are in arms against
each other, and the constituted authorities unable to execute the laws, the
interposition of the United States must be prompt or it is of little value. The ordinary
course of proceedings in the courts of justice would be utterly unfit for the crisis, and
the elevated office of the President, chosen as he is by the people of the United
States, and the high responsibility he could not fail to feel when acting in a case of so
much moment, appear to furnish as strong safeguards against the willful abuse of
power as human prudence and foresight could well provide. At all events it is
conferred upon him by the Constitution and laws of the United States and must,
therefore, be respected and enforced in its judicial tribunals.

Chief Justice Taney here cites approvingly the case of Martin vs. Mott.

In the case of Franklin vs. State Board Examiners (23 Cal., 173, 178) the supreme court of California
decided

That the political department of a State government is the sole judge of the existence
of war or insurrection, and, when it declares either of these emergencies to exist, its
action is not subject to review or liable to be controlled by the judicial department of
the State.

In this case the court cited the cases of Martin vs. Mott and Luther vs. Borden.

This same doctrine was again recognized by the supreme court of California in the case of the
People vs. Pacheco (27 Cal., 175, 223), not only resting its decision upon the case of Franklin vs.
State Board of Examiners but also again cited and confirmed the case of Martin vs. Mott, Luther vs.
Borden, and Vanderheyden vs. Young (11 Johns (N.Y.), 159).

Chief Justice Marshall, in the case of McCullough vs. State of Maryland (4 Wheat, 316), says:

We think the sound construction of the Constitution must allow the national
legislature that discretion with respect to the means by which the powers it confers
are carried into execution which will enable that body to perform the high duties
assigned to it in the manner most beneficial to the people. ... Such being the case,
the determination of these questions by the political department of the Government
must also necessarily be conclusive.
Chief Justice Taney, in the case of ex parte Merryman, 17 Federal Cases, 144 (Fed. Case No.
9487), said, in speaking of the power of the courts:

It is true that in the case mentioned Congress is of necessity the judge of whether the
public safety does or does not require it (the suspension of the writ of habeas
corpus), and their judgment is conclusive.

Chief Justice Taney, in the same decision, quotes the following language of Mr. Justice Story
approvingly:

It would seem as the power is given to Congress to suspend the writ of habeas
corpus in cases of rebellion or invasion, that the right to judge whether the exigency
had arisen must exclusively belong to that body.

In the case of McCall vs. McDowell, 15 Fed. Cases, 1235 (Fed. Case No. 8673), Judge Deady said:

When the occasion arises rebellion or invasion whether the "public service"
requires the suspension of the writ or not is confided to the judgment of Congress,
and their action in the premises is conclusive upon all courts and persons. . . .

The suspension enables the executive, without interference from the courts or the
law, to arrest and imprison persons against whom no legal crime can be proved, but
who may, nevertheless, be effectively engaged in forming the rebellion or inviting the
invasion, to the imminent danger of the public safety.

In the case of Ex parte Field (5 Blatchford, 63) this same question arose in the State of Vermont, and
the supreme court of that State, relying upon the decision of Mr. Justice Story in Luther vs. Borden
and that of Chief Justice Taney in Martin vs. Mott, decided that the President is the exclusive judge
of the existence of the exigency authorizing him to call forth the militia and declare martial law, in
pursuance of the power conferred on him by the act of Congress of 1795.

Judge Emmons, in the case of United States vs. 1,500 Bales of Cotton (Fed. Case No. 15958), in
discussing this general question, said, quoting from a decision of Chief Justice Chase:

The belligerent relation having once been recognized by the political power, all the
people of each State or district in insurrection must be regarded as enemies until, by
the action of the legislature and executive, that relation is thoroughly and
permanently changed. . . .

The statute devolved upon the President the political duty of determining whether
armed force should be called out to put down insurrection in the States. It was for
him to decide when the exigency occurred. The courts had no concern with it. ...
Whether there was any necessity for the exercise of the power of the President to
call out the militia the court could not determine. His decision was final ... If the
judicial power were thus extended, the guaranty in the Constitution of a republican
form of government was a guaranty of anarchy, not of order. Equally incongruous
results would follow if the courts instead of the Government, were to decide when
hostilities are ended and when trade and intercourse should be resumed.

Not only has it been decided in numerous cases that the power to call out the militia and to suspend
the writ of habeas corpus is entirely within the discretion of the legislative and executive branches of
the Government, but, when the executive and legislative departments have decided that the
conditions exist justifying these acts, the court will presume that such conditions continue to exist
until the same authority (legislative, etc.) has decided that such conditions no longer exist.

Judge Dillon, in the case of Philips vs. Hatch (Fed. Case No. 11094, said:

From the nature of the question, from the fair implication of the act of July 13, 1862
(an act authorizing the suspension of the writ of habeas corpus), from the confusion
that would ensue from any other rule, it is the opinion of the court that the rebellion
must be considered as in existence until the President declared it at an end in a
proclamation.

Judge Emmons, in the above case, discussing this same question, said:

These unquestioned doctrines have not been extemporized for the modern and
exceptional exigencies of the late rebellion. They belong to the jurisprudence of all
countries and were adopted as part of that of our own from its earliest history. Our
most conservative judges, Marshall, Story, and Taney, have been foremost in
announcing them. No citizen would challenge the justness and necessity of this rule.
Judges have their peculiar duties which, if faithfully and learned studied, have little
tendency to make them familiar with current and rapidly changing conditions upon
which depend the important political question of whether it is safe to relax, on the
instant, military rule and restore intercourse and trade.

The following cases are also cited:

Brown vs. Hiatt, Fed. Case No. 2011.


United States vs. 100 Barrels of Cement, Fed. Case No. 15945.
Gelston vs. Hoyt, 3 Wheat., 246.
The Divina Pastora, 4 Wheat., 52.
The Santissima Trinidad, 7 Wheat., 283.
Rose vs. Himely, 4 Cranch, 241.
Garcia vs. Lee, 12 Peters, 511.
Stewart vs. Kahn, 11 Wallace, 493.
Mrs. Alexander's Cotton, 2 Wallace, 404.

For a general discussion, see Sixth American Law Register, 766; 4 Chicago Legal News, 245.

No Government, past or present, has more carefully and watchfully guarded and protected, by law,
the individual rights of life and property of its citizens than the Government of the United States and
of the various States of the Union. Each of the three departments of the Government has had
separate and distinct functions to perform in this great labor. The history of the United States,
covering more than a century and a quarter, discloses the fact that each department has performed
its part well. No one department of the Government can or ever has claimed, within its discretionary
power, a greater zeal than the others in its desire to promote the welfare of the individual citizen.
They are all joined together in their respective spheres, harmoniously working to maintain good
government, peace, and order, to the end that the rights of each citizen be equally protected. No one
department can claim that it has a monopoly of these benign purposes of the Government. Each
department has an exclusive field within which it can perform its part, within certain discretionary
limits. No other department can claim a right to enter these discretionary limits and assume to act
there. No presumption of an abuse of these discretionary powers by one department will be
considered or entertained by another. Such conduct on the part of one department, instead of
tending to conserve the Government and the right of the people, would directly tend to destroy the
confidence of the people in the Government and to undermine the very foundations of the
Government itself.

For all of the foregoing reasons, the application for the writ of habeas corpus should be denied, and
it is so ordered.

Arellano, C.J., Mapa, and Carson, JJ., concur.

Separate Opinions

TORRES, J., concurring in part:

After considering the provisions of the Philippine bill of July 1, 1902, contained in paragraph 7,
section 5 of said act, I have concluded to concur in the grounds upon which the majority decision of
this case is based, and agree that the petition for a writ of habeas corpus should be denied. By virtue
of the decree of the 31st of January of this year the writ was suspended in the Provinces of Cavite
and Batangas. The Governor-General, with the approval of the Commission, had the exclusive
power and jurisdiction to suspend the writ, when in their opinion public safety should so require, in
cases of rebellion and invasion only.

The fact that the writ has been suspended can not, however, be used as a pretext for the
commission of crimes defined and punished in the Penal Code now in force in these islands. The
application of said code has not been suspended in said provinces.

Article 200 of the Penal Code now in force provides:

The public official who, unless it be by reason of a crime, should detain a person
without being duly authorized to do so by law or by regulations of a general character
in force in the Philippines, shall incur the penalty, etc.

Rules 27, 28, 30, and 34 of the provisional law for the application of the Penal Code in the Philippine
Islands give greater force to the above-quoted section of said code. It provides that no person shall
be deprived of his liberty, except by reason of the commission of some crime.

These provisions, although based upon different fundamental principles, are, nevertheless, in perfect
harmony with the provisions of section 5, subdivisions 1 and 3 of the said act of July 1, 1902, in that
they provide that no law shall be promulgated in these Islands that will deprive persons of their life,
liberty, or property without due process of law, and that no person shall be held to answer for the
commission of a crime except by due process of law.

Felix Barcelon has been detained for a long time in the town of Lipa, Province of Batangas, not for
the commission of any crime and by due process of law, but apparently for the purpose of protecting
him. This detention, unless it is shown that some good reason exists therefor, is absolutely illegal,
notwithstanding the factor that the writ of habeas corpus has been suspended in the Province of
Batangas.

The honorable Governor-General, with the approval of the Philippine Commission, decided, upon his
own responsibility, that a state of rebellion existed in the Provinces of Cavite and Batangas, and by
virtue of his authority suspended the writ of habeas corpus for the purpose of reestablishing peace,
insuring public safety, and facilitating the prosecution and repression of rebels.

The writ was suspended with a view to averting the commission of crimes, particularly those
affecting public peace, by depriving criminals of the privilege of the writ.

It would not be lawful, however, to violate the provisions of the Penal Code under the pretext that the
writ has been suspended. It would not be lawful to rob or commit any other trespass upon the
person, rights or property of citizens. The detention of Felix Barcelon is not due to the commission of
any crime. It is an actual trespass upon his liberty and personal safety, committed by the police
authorities, which under no circumstances can be excused or justified by the temporary suspension
of the writ of habeas corpus.

The fundamental laws of Spain, a monarchy, the spirit and principles of which are the basis of our
Penal Code, and the provisional law for its application, do not contain any provision in regard to the
privilege of habeas corpus, but they contain provisions which guarantee to the citizen his individual
rights. The supreme court of Spain has held that now even where constitutional guaranties are
suspended can the executive authority order that a person be detained, except for crime or for
breach of the public peace. (Judgment of the 15th of March, 1877.)

Barcelon, the petitioner in this case, is neither a rebel nor a criminal; therefore his detention is illegal.

For the foregoing reasons I am of the opinion that the petition for habeas corpus should be denied,
and that criminal proceedings should be instituted for the crime of illegal detention, defined and
punished in article 200 of the Penal Code, and that it is the duty of the judge of the Court of First
Instance of the Province of Batangas to proceed against those responsible for said crime.

WILLARD, J., dissenting:

The question in the case is this: Have the Governor-General and the Commission power to suspend
the writ of habeas corpus when no insurrection in fact exists? If tomorrow they should suspend the
writ in Manila, would that suspension be recognized by the courts?

That in such a case they ought not to suspend the writ and that where no insurrection in fact exists
they would have no right to do so, are propositions which have no bearing upon the case. The
question is, Have they the power to do it?

Prior to the passage of the act of Congress of July 1, 1902, the Commission had that power. They
could suspend the writ, take it away entirely from certain provinces, or repeal entirely the law which
authorized it to be issued. They had absolute control over it. (In re Calloway, 1 Phil. Rep., 11.)

By the decision of the majority in this case the Governor-General and the Commission still have that
power. The effect of this decision is to give them the same power which the Commission exercised
before the passage of the act of Congress of July 1, 1902. In other words, that part of the act which
relates to the writ of habeas corpus has produced no effect. It is repealed by this decision, and
Congress accomplished nothing by inserting it in the law. No construction which repeals it should be
given to this article. If a given construction leads to that result it seems to me that it must be certain
that the construction is wrong. No other argument to prove that it is wrong is needed. Congress must
have intended that this provision should produce some effect. To hold that it has produced no effect
is to defeat such intention.

But it is said that by the terms of the act, while the Governor-General and the Commissioners have
the power to suspend the writ, they should not do it except in cases where insurrection in fact exists,
and they, being men of character and integrity, would not do it except in such cases. As the
Government is at present constituted, this is undoubtedly true. This argument, however, is fully
answered by what was said by the Supreme Court of the United States in the case of Ex parte
Milligan (4 Wallace 2, 125):

This nation, as experience has proved, can not always remain at peace, and has no
right to expect that it will always have wise and humane rulers, sincerely attached to
the principles of the Constitution. Wicked men, ambitious of power, with hatred of
liberty and contempt of law; may fill the place once occupied by Washington and
Lincoln.

With the exception of one case decided by the supreme court of Idaho, no authorities are presented
involving directly the construction of the provision of the Constitution of the United States relating to
the suspension of the writ of habeas corpus, which provision is substantially the same as the one
embodied in the act of Congress of July 1, 1902.

That the judicial power has no authority to interfere with the executive power in the discharge of the
duties imposed upon the latter by law is a proposition that no one denies. The question, however, in
this case is, Has the law conferred upon the executive the power to decide conclusively whether a
state of insurrection exists or not?

In the case of Martin vs. Mott (12 Wheat., 19, 28) the court said that the construction which it gave to
the act of Congress authorizing the President to call out the militia "necessarily results from the
nature of the power itself, and from the manifest object contemplated by the act of Congress" that
is to say, in determining what the words of the law meant they relied almost entirely upon the nature
of the power given by the law, and the object contemplated by it. Those are the things which should
be considered in determining what construction is to be given to the provisions relating to habeas
corpus. The power given by an act of Congress to the President, who under the Constitution is the
commander in chief of the militia when called into the service of the United States, to call such men
into military service upon a sudden emergency, is in my opinion distinctly different from the power
given by the Constitution to Congress to suspend the writ of habeas corpus so as to prevent a
person already in custody from having the cause of his detention inquired into by a court of justice.
The reasons which would lead a court to say that the former power had been unreservedly intrusted
to the President should not, I think, be considered as controlling, when the extent of the latter power
is under discussion.

The effect of the suspension of the writ of habeas corpus, and as it seems to me its manifest
purpose, is to allow the Government to commit an illegal act. It allows it to imprison a person who
has committed no offense, and for whose arrest and detention no warrant has been issued by any
competent court, and it leaves that person without redress at the time for this unlawful act. In the
case at bar it appears from the return of the respondents that Barcelon is deprived of his liberty
without due process of law in violation of a provision of this same act of Congress.

The privilege of the writ of habeas corpus was given to protect the citizen from such arbitrary and
illegal acts of either the executive or the legislative power; the latter, that department which,
according to Madison in No. 47 of The Federalist, "is everywhere extending the sphere of its activity
and drawing all power into its impetuous vortex."
Is it probable that the people, in adopting the Constitution, intended to give up to these departments
of the Government against which they needed protection perhaps the most important right which
could furnish that protection?

I do not think that the authors of the Constitution or the authors of the act of Congress intended to so
place this right in the hands of these two departments that whether it should or should not be
enjoyed by the citizens would depend exclusively upon their will and pleasure.

For the reasons above stated, I dissent from the opinion of the court.

G.R. No. L-61016 April 26, 1983

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF HORACIO R. MORALES, JR.,
petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR,
respondents.

G.R. No. L-61107 April 26, 1983

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTONIO C. MONCUPA, JR.
ANTONIO C. MONCUPA, JR., petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR,
respondents.

Lorenzo M. Taada, Augusto Sanchez, Jejomar Binay and Antonio Quintos for petitioners.

The Solicitor General for respondents.

CONCEPCION, JR., J.:

1. The petitions are without merit and are hereby DISMISSED.

2. Petitioners were arrested on April 21, 1982 at about 9:45 a.m. while they were riding
together in a motor vehicle on Laong-Laan Street, Quezon City, by elements of Task Force
Makabansa of the Armed Forces of the Philippines. Since their arrest, they have been under
detention. Petitioner Morales filed his petition for habeas corpus with this Court on July 9,
1982, while petitioner Moncupa filed his on July 19, 1982. On July 20, 1982 petitioners,
together with several others, were charged with rebellion (Art. 134, Revised Penal Code)
before the Court of First Instance of Rizal in Criminal Case No. Q-21091 filed by the City
Fiscal of Quezon City. The trial of the case has yet to be terminated. The continued detention
of petitioners to answer for the offense charged is therefore legal.

3. Petitioners allege that they were arrested without any warrant of arrest; that their
constitutional rights were violated, among them the right to counsel, the right to remain
silent, the right to a speedy and public trial, and the right to bail. They also air the charge that
they were subjected to maltreatment and torture; that they did not have the opportunity to
present their defense before the inquest fiscal and therefore asked this Court to order the
reinvestigation of the charges against them. Acting on such plea, this Court in a resolution en
banc dated July 22, 1982 ordered the City Fiscal of Quezon City to conduct such
reinvestigation and at the same time appointed him "to act as commissioner of this Court and
receive evidence of the charges made by petitioners before this Court of alleged torture and
violation of their constitutional rights, particularly the right to counsel." On September 28,
1982, the City Fiscal submitted his report on the reinvestigation affirming the existence of a
prima facie case for rebellion against petitioners and several others. And on February 8, 1983
he submitted to this Court the transcript of the notes taken at the reception of the evidence
on the charges of petitioners.

4. If petitioners had been arrested in a communist country, they would have no rights to
speak of. However, the Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them. 1 We have a Constitution framed by a
constitutional convention and duly ratified by the people. We subscribe to the rule of law. We believe
in human rights and we protect and defend them. Petitioners are entitled to the full enjoyment of all
the rights granted to them by law. And this Court stands as the guarantor of those rights.

5. Our Constitution provides:

SEC. 20. No person shall be compelled to be a witness against himself. Any


person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence. 2

6. After a person is arrested and his custodial investigation begins a confrontation arises which at
best may be termed unequal. The detainee is brought to an army camp or police headquarters and
there questioned and cross-examined not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in a strange and un familiar surrounding, and
every person he meets he considers hostile to him. The investigators are well-trained and seasoned
in their work. They employ all the methods and means that experience and study has taught them to
extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are
not aware of their constitutional rights. And even if they were, the intimidating and coercive presence
of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill
of Rights seeks to remedy this imbalance.

7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the
reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his
constitutional rights to remain silent and to counsel, and that any statement he might make could be
used against him. The person arrested shall have the right to communicate with his lawyer, a
relative, or anyone he chooses by the most expedient means-by telephone if possible or by letter or
messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court upon petition either of the
detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall
not be valid unless made with the assistance of counsel. Any statement obtained in violation of the
procedure herein laid down, whether exculpatory or inculpatory, in whole or in part, shall be
inadmissible in evidence.
8. During the period of his detention, he shall have the right to confer with his counsel at any hour of
the day or, in urgent cases, of the night, alone and privately, in the jail or any other place of custody.
3

Arrest.

9. Arrest is the taking of a person into custody in order that he may be forthcoming to answer for the
commission of an offense.4

10. An arrest may be made with or without a warrant.

SEC. 3. The right of the people to be secure in their persons, houses,


papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined by
the judge, or such other responsible officer as may be authorized by law,
after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched, and the persons or things to be seized. 5

11. Our Constitution clearly defines the persons who may issue a warrant of arrest and limits them to
a "judge, or such other responsible officer as may be authorized by law." It also lays down in
unmistakable terms the procedure required before a search warrant or warrant of arrest may issue.

12. A Presidential Arrest and Commitment Order is a warrant of arrest issued by the President of the
Philippines. 6 Its issuance must therefore comply with the requirements of the Constitution, in the
same manner and to the same extent, as a warrant of arrest issued by a judge issuance must
therefore comply with the requirements of the Constitution, in the same manner and to the same
extent, as a warrant of arrest by a judge.

13. An arrest may also be made without a warrant.

SEC. 6. Arrest without warrant When lawful. A peace officer or a private


person may, without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or


is about to commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable
ground to believe that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.7

14. Care should be exercised in making an arrest without a warrant. Where there is no justification
for the arrest, the public officer could be criminally liable for arbitrary detention8 or unlawful arrest 9 or
for some other offense.
15. The petitioners claim they were arrested without a warrant. The Memorandum to the President
dated April 21, 1982 from Gen. Fabian C. Ver, Chief of Staff of the Armed Forces of the Philippines,
wherein he reported the arrest of petitioners, the subversive documents seized from them and the
results of the ensuing tactical interrogation, with a recommendation for the issuance of a Presidential
Arrest and Commitment Order, was approved by the President only on April 23, 1982. Indeed,
therefore, petitioners were arrested without a warrant. However, months before their arrest,
petitioners were already under surveillance on suspicion of committing rebellion. From the results of
the said surveillance, the evidence then at hand, and the documents seized from them at the time of
their arrest, it would appear that they had committed or were actually committing the offense of
rebellion. Their arrest without a warrant for the said offense is therefore clearly justified.

Procedure after Arrest.

16. After a person is arrested either without a warrant or by virtue of a warrant of arrest issued by a
judge or by virtue of a Presidential Arrest and Commitment Order, the proper complaint or
information against him must be filed with the courts of justice within the time prescribed by law, to
wit:

FURTHER AMENDING ARTICLE 125 OF THE REVISED PENAL CODE, AS


AMENDED (PRESIDENTIAL DECREE NO. 1404)

WHEREAS, the periods within which arrested persons shall be delivered to


the judicial authorities as provided in Article 125 of the Revised Penal Code,
as amended, are on occasions inadequate to enable the government to file
within the said periods the criminal information against persons arrested for
certain crimes against national security and public order.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Republic


of the Philippines, by virtue of the powers vested in me by the Constitution,
and in the interest of national security as well as public safety and order, do
hereby decree and order as part of the law of the land the following
amendment to Article 125 of the Revised Penal Code, as amended:

SECTION 1. Article 125 of the Revised Penal Code, as amended, is hereby


further amended to read as follows:

ART. 125. Delay in the delivery of detained persons. -The


penalties provided in the next preceding article shall be
imposed upon the public officer or employee who shall detain
any person for some legal ground and shall fail to deliver
such person to the proper judicial authorities within the period
of: six hours, for crimes or offenses punishable by light
penalties, or their equivalent; nine hours, for crimes or
offenses punishable by correctional penalties, or their
equivalent; and eighteen hours, for crimes or offenses
punishable by afflictive or capital penalties, or their
equivalent; Provided, however, That the President may, in the
interest of national security and public order, authorize by
Executive Order longer periods, which in no case shall
exceed 30 days, or for as long as the conspiracy to commit
the crime against national security and public order continues
or is being implemented, for the delivery of persons arrested
for crimes or offenses against public order as defined in Title
III, Book 11 of this Code, namely: Articles 134, 136, 138, 139,
141, 142, 143, 144, 146 and 147, and for acts in violation of
Republic Act No. 1700 as amended by Presidential Decree
No. 885, taking into consideration the gravity of the offense or
offenses, the number of persons arrested, the threat to
national security or to public safety and order, and/or the
occurrence of a public calamity or other emergency situation
preventing the early investigation of the cases and the filing of
the corresponding information before the civil courts.

In every case, the person detained shall be informed of the


cause of his detention and shall be allowed, upon his request,
to communicate and confer at any time with his attorney or
counsel, and to be visited by his immediate relatives.

SEC. 2. All acts, executive order, proclamations, Presidential Decrees,


General Orders, Letters of Instruction, rules and regulations, or parts thereof,
inconsistent with the provisions of this decree are hereby repealed or
modified accordingly.

SEC. 3. Transitory provision.-Pending the preparation and promulgation by


the President of the Executive Order referred to in Section 1 hereof, the
detention of persons arrested for any of the abovementioned offenses
against public order shall continue to be governed by the provisions of
General Orders No. 2, dated September 22, 1972 as amended by General
Order Nos. 60 and 62, dated September 24, 1977 and October 22, 1977,
respectively.

SEC 4. This decree shall take effect immediately.

Done in the City of Manila this 9th day of June, in the year of Our Lord,
nineteen hundred and seventy-eight."

17. Failure of the public officer to do so without any valid reason would constitute a violation of Art.
125, Revised Penal Code, as amended. And the person detained would be entitled to be released
on a writ of habeas corpus, unless he is detained under subsisting process issued by a competent
court.10

Power of the Courts.

18. The writ of habeas corpus has often been referred to as the great writ of liberty. It is the most
expeditious way of securing the release of one who has been illegally detained. The privilege of the
writ of habeas corpus may be suspended, but not the writ itself.

19. The Bill of Rights provides:

SECTION 1. No person shall be deprived of life, liberty, or property without


due process of law, nor shall any person be denied the equal protection of
the laws.
20. In Lansang vs.Garcia, 42 SCRA 448,473,We said:

In our resolution of October 5, 1972, 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 889A ... 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.

21. We reiterate this doctrine.

22. Furthermore, We hold that under the judicial power of review and by constitutional mandate, in
all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's
detention from the moment petitioner was taken into custody up to the moment the court passes
upon the merits of the petition. Only after such a scrutiny can the court satisfy itself that the due
process clause of our Constitution has in fact been satisfied.

23. The submission that a person may be detained indefinitely without any charges and the courts
cannot inquire into the legality of the restraint goes against the spirit and letter of the Constitution
and does violence to the basic precepts of human rights and a democratic society.

The Right to Bail.

24. Next to life a man loves his freedom. Some men love their freedom even more than their life.

25. In all criminal prosecutions the accused is presumed innocent. Because of this presumption and
inasmuch as every man has a natural desire to be free, our Constitution laid down the right to bail in
these words:

SEC. 18. All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties. Excessive bail shall not be required. 11

26. Although martial law was terminated on January 17, 1981, by virtue of Proclamation No. 2045 of
the President of the Philippines, the privilege of the writ of habeas corpus continues to be suspended
in the two autonomous regions in Mindanao and in all other places with respect to certain offenses,
thus:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister


of the Philippines, by virtue of the powers vested in me by the Constitution,
do hereby revoke Proclamation No. 1081 (Proclaiming a State of Martial Law
in the Philippines) and Proclamation No. 1104 (Declaring the Continuation of
Martial Law) and proclaim the termination of the state of martial law
throughout the Philippines; Provided, that the call to the Armed Forces of the
Philippines to prevent or suppress lawless violence, insurrection, rebellion
and subversion shall continue to be in force and effect; and Provided that in
the two autonomous regions in Mindanao, upon the request of the residents
therein, the suspension of the privilege of the writ of habeas corpus shall
continue; and in all other places the suspension of the privilege of the writ
shall also continue with respect to persons at present detained as well as
others who may hereafter be similarly detained for the crimes of insurrection
or rebellion, subversion, conspiracy or proposal to commit such crimes, and
for all other crimes and offenses committed by them in furtherance of or on
the occasion therefore, or incident thereto, or in connection therewith. ...
(Presidential Proclamation No. 2045).

27. Normally, rebellion being a non-capital offense is bailable. But because the privilege of the writ of
habeas corpus remains suspended "with respect to persons at present detained as well as other
who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by
them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith," the
natural consequence is that the right to bail for the commission of anyone of the said offenses is also
suspended. To hold otherwise would defeat the very purpose of the suspension. Therefore, where
the offense for which the detainee was arrested is anyone of the said offenses he has no right to bail
even after the charges are filed in court.

28. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes
or offenses committed in furtherance thereof or in connection therewith constitute direct attacks on
the life of the State.

29. Just as an individual has right to self-defense when his life is endangered, so does the State.
The suspension of the privilege of the writ is to enable the State to hold in preventive imprisonment
pending investigation and trial those persons who plot against it and commit acts that endanger the
State's very existence. For this measure of self-defense to be effective, the right to bail must also be
deemed suspended with respect to these offenses.

30. However, there is a difference between preventive and punitive imprisonment. Where the filing of
charges in court or the trial of such charges already filed becomes protracted without any justifiable
reason, the detention becomes punitive in character and the detainee regains his right to freedom.

The Charges of Torture.

31. When petitioners charged in their petitions that they had been tortured and maltreated, the Court
decided to appoint the City Fiscal of Quezon City to hear the charges and to receive the evidence.
Not because We are an investigating body. Nor are We a trier of facts. But because petitioners'
charges are material and relevant to the petitions before Us.

32. As mentioned earlier, the Court Commissioner submitted the transcript of the proceedings held
before him. We will not pass upon the merits of the torture charges. However, they should be filed
before the body which has jurisdiction over them as provided for in Presidential Decrees Nos. 1822,
1822-A and 1850.

33. The present form of our government, to all intents and purposes, merged the executive and
legislative branches into one. Members of parliament are at the same time cabinet ministers. Under
the system of checks and balances ordained by the Constitution, the judiciary serves as the check
and balance to the merged executive and legislative branches. The judiciary is therefore called upon
to express its thoughts on areas outside the traditional and narrow confines of decision making, with
the end in view that together we may explore the free market of Ideas and arrive at what is best for
our country and our people.
34. Our people cry out for a better life. They want more food in their stomachs, roofs over their
heads, health services for themselves and their families, education for their children, and other
necessities that make life worth living. They cannot be denied. They want it and they want it now.
Timely indeed are the thrusts of the KKK and the BLISS programs.

35. However, we cannot lead them to a truly better life, unless we achieve complete peace in our
land; and we cannot have complete peace unless we improve the administration of justice.

36. It was a wise man who once said: "Tell me how a country's poor receive their justice and I will tell
you how stable its government is." 12

37. Whenever we speak of the administration of justice we refer to four principal areas: the
preservation of peace and order which is the primary task of the Armed Forces of the Philippines
and the National Integrated Police, both under the Ministry of Defense; the investigation and
prosecution of offenses and the administration of our penal system which are under the Ministry of
Justice; the application and interpretation of laws and the trial and adjudication of cases which fall
under the jurisdiction of the courts; and appearance as counsel for the government particularly in
appealed criminal cases and as counsel for the Commission on Elections, Securities and Exchange
Commission, and others, which is the responsibility of the Office of the Solicitor General. In everyone
of these areas much can be done to achieve our ultimate goal-that in this fair land of ours, no man,
no matter how humble, no matter how poor shall thirst for justice.

38. Our machinery of justice should be geared towards helping and protecting the poor among us.
Not knowing their rights, not having the means to pay for the services of a lawyer, possessing no
influence whatsoever, they are invariably the victims of injustice. The affluent can take care of
themselves. They are better aware of their rights, they have influence, and they can engage the
services of the best counsel. But the poor can only pray to God and hope to find relief in the system
of justice established by their government.

39. We must open all avenues for complaints and keep them open so that the grievance procedure
may be made more readily available to the masses of our people. Only by knowing their needs can
we give them what they rightfully deserve.

40. It is undeniable that throughout the length and breadth of our land, lawlessness and disorder
have increased and continue to increase to undesirable proportions. It is wishful thinking to believe
otherwise. An efforts must be exerted now to reverse the trend. We cannot afford any delay. And we
should begin by bringing to the bar of justice the culprits in particular who burned and destroyed
public property, and attacked, kidnapped and killed public functionaries. For the questions may
validly be asked: If the government cannot protect public property, how can it protect private
property? If the government cannot guarantee the safety and lives of its officials, how can it
guarantee the safety and lives of private individuals?

41. The investigation and prosecution of cases should be further improved so that only meritorious
cases shall reach the courts, thus contributing to the unclogging of court dockets. Many criminal
cases initiated by complainants are just harassment suits and should never have been filed in court.
In the process, it is required that all fiscals be appointed in a permanent capacity. Their security of
tenure is the foundation stone of their independence. Our penal system should be further updated to
make more effective the rehabilitation of criminals. Let us do away with instances of first offenders
who serve sentence in order to be reformed but who come out instead as hardened criminals.

42. And with the judicial revamp just effected under B.P. 129, the trial and decision making process
has been modified and vastly improved to achieve better results. But it must be remembered that
courts which are not filled are as good as no courts at all. Therefore, more appointments to the
existing vacancies should be made.

43. One lesson our people have learned-painfully but well-is that politics and a good administration
of justice-like oil and water-do not mix; that when politics infiltrates the administration of justice,
injustice is often the outcome. In some jurisdictions of the United States, there are sheriffs (peace
officers) and district attorneys (prosecutors) who are elected by the voters and who run for office as
the candidates of a political party. In the Philippines such a system would never work because in our
culture we have values peculiarly our own-value like "utang na loob", "compadre", "pakikisama",
"tayu-tayo", "bigayan", "bata ko", "amo ko", and the "god- father mentality". Values like these have
derailed and may derail the administration of justice. Political followers commit abuses in the belief
that come what may their political bosses would shield them from punishment. Can you imagine how
criminal cases would be investigated and prosecuted if fiscals (prosecutors) were chosen by
election? How would our laws be enforced if policemen and members of the Armed Forces were
elected by the people? And yet the heads of the Ministries of Justice and Defense and the Office of
the Solicitor General are all active politicians.

44. The burdens of office fall heavily on their shoulders. Perhaps it is time we relieve them of the
additional burdens that being politicians entail. Our Constitution foresaw the need for heads of
ministries who are not active politicians in providing that ". . . . At least a majority of the Members of
the Cabinet who are heads of ministries shall come from the Regional Representations of the
Batasang Pambansa. . . ." 13

45. The campaign against venality in office-malfeasance, misfeasance and nonfesance should be
pursued with renewed vigor. For graft and corruption are like termites gnawing away the foundation
of government. The harm done is sometimes not realized; or even if realized, under- estimated. In
the process let us remember to stress preventive measures to save public property from loss.

46. The communist threat remains a nagging problem of government. Whether Marxist, Maoist,
Leninist, aided by the New People's Army, rebels, radicals, and lawless elements, they all have but
one aim-one single purpose-one defined objective: to bring down by violence the Government of the
Republic of the Philippines and to forcibly seize political power in order that they may replace our
existing political, social, economic, and legal order with an entirely new one based on communism.

47. Once before, in the early fifties, communists threatened the established order. They were driven
back by the Armed Forces, mainly because of the support of our people. We must keep, strengthen
and solidify the sympathy, faith, loyalty, and trust in the government of our brothers in the rural
areas. Guns and bullets alone will not do it. We can accomplish this only by giving them better
government. It is a condition sine qua non to achieve success in the fight against subversion.

48. By and large, the Armed Forces are composed of good and disciplined men. However, there are
those who are not worthy of the uniforms they wear. Not a few have enriched themselves by abusing
the powers of their position. Some are involved in extortion, smuggling, and kidnapping for ransom.
There are others who maintain gambling, drug rings, and prostitution dens. And still others have
committed robbery, rape, murder, and other offenses. The campaign to rid the organization of such
misfits should be carried out with missionary zeal. For indeed victims of abuse are often alienated
from the government.

49. The Filipinos are a God-loving and a God-fearing people. We believe in peace and freedom. We
believe in the family and its strong ties. We can never willingly accept communism and what it
stands for.
50. While the government should continue to repel the communists, the subversives, the rebels, and
the lawless with all the means at its command, it should always be remembered that whatever action
is taken must always be within the framework of our Constitution and our laws.

51. When the judgment of history is written, as leaders of our people, we shall be asked to account
not only for what we did, not only for what we did not do, but also for what visions we have today of
our tomorrow.

52. What will be our answer?

53. WHEREFORE, as aforestated, the petitions should be, as they are hereby, DISMISSED. With
costs against the petitioners.

54. SO ORDERED.

Aquino, J., concurs in the result.

Guerrero, J., I concur in the dismissal of the petitions.

Plana, J., Escolin J., Vasquez, J., concurs in the result.

Relova, J., I concur and will also add my own views in a separate opinion.

Separate Opinions

FERNANDO, C.J., concurring:

concurring in the dismissed of the petitions, expressing conformity with the reiteration of the doctrine
announced in Lansang v. Garcia, and dissenting on the question of the right to bail which for him
may be invoked whenever allowable under the Constitution:

Let me make clear at the outset that I limit myself to a concurrence in the dismissal of the petitions,
expressing conformity with the reiteration of the doctrine in Lansang v. Garcia,1 and a dissent on the
question of the right to bail during a period of suspension of the privilege of the writ of habeas
corpus, which for me may be invoked whenever allowable under the Constitution, a stand I took both
as counsel in Hernandez v. Montesa 2 and thereafter as a member of the Court in Lansang v. Garcia,
3
Buscayno v. Enrile, 4 and Garcia-Padilla v. Ponce Enrile. 5 This is by no means to indicate lack of
due recognition of the intensity of conviction and lucidity of expression so evident in the exhaustive
opinion of Justice Concepcion Jr. It is merely to adhere to the norm of limiting myself to an appraisal
of the constitutional rights invoked insofar as they have a bearing on these petitions. 6 Hence this
separate expression of my views.

1. The first paragraph of the decisions of this Court is worded as follows: "The petitions are without
merit and are hereby DISMISSED." 7 I am in full agreement. The authoritative doctrine followed by
this Court in accordance with well-settled jurisprudence is that the moment it can be shown that the
persons detained are being held in lawful custody by virtue of a judicial process, then an application
of the privilege of the writ of habeas corpus cannot succeed.8

2. There is equally to my mind no question about the validity as a legal proposition of paragraph 4 of
the opinion, which speaks of the Philippines being "a republican state. Sovereignty resides in the
people and all government authority emanates from them. We have a Constitution framed by a
constitutional convention and duly ratified by the people. We subscribe to the rule of law. We believe
in human rights and we protect and defend them. Petitioners are entitled to the full enjoyment of all
the rights granted to them by law. And this Court stands as the guarantor of those rights." 9 This
Court in normal times as well as under emergency conditions has displayed fealty to human rights,
as protected and safeguarded by the Constitution. It is a matter of legitimate pride that even under
the 1935 Charter, the Philippines has accorded full recognition not only to the traditional civil and
political rights but to social and economic rights. The autonomy of the human personality and the
assurance of his dignity are a matter of deep public concern. It is equally a matter of legitimate pride
that during the period of martial law, with fun recognition of the power of the government to maintain
peace and order and preserve its authority, the judiciary, was not recreant to such a trust. 10 For the
entire judiciary, not only this Court, stands as a guarantor of those rights. It does so when it has to
act in a proper case submitted to it. The political branches are equally, to my mind, guarantors of
human rights; the Batasan Pambansa in the enactment of laws and the President in their
enforcement whether through executive orders implementing them or the issuance of decrees
having the force and effect of law. In the sense, however, that decisions coming from this Court have
not merely an inter-partes but an erga omnes effect, binding not only the litigants but also others
finding themselves similarly situated, it is quite accurate to state that "this Court stands as a
guarantor of those rights."

3. It is by virtue of the respect for constitutional rights that in the resolutions of this Court in both
applications for the writ, it was made clear that counsel of petitioners can visit them and confer with
them in an atmosphere of confidentiality consistent with reasonable security measures to be
imposed by respondents. 11 Again, it is by virtue of deference to the Constitution that in succeeding
resolutions, their allegations as to other instances of violation of their rights were referred for
investigation to the City Fiscal of Quezon City. 12

4. Paragraphs 5 to 19 of the opinion of the Court elaborate further on the matter. They are notable
for the concern shown for constitutional rights, with full recognition of the power of the state to deal
effectively with rebellion or subversion. I view the matter similarly. The same thought was given
expression in Lansang v. Garcia. 13 In the memorable language of Chief Justice Concepcion:
"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 Rules 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 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." 14
5. In the opinion of Justice Concepcion Jr., paragraph 21 explicitly states: "We reiterate this
doctrine." There is thus a reaffirmance of the ruling in Lansang cited in paragraph 20 to the effect
that the suspension of the privilege of the writ raises a judicial rather than a political question. I am in
complete agreement. That was the point of my dissent in the recently decided case of Garcia-Padilla
v. Enrile.

6. There is also on my part conformity with the view set forth in paragraph 22 that "in all petitions for
habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the
moment petitioner was taken into custody up to the moment the court passes upon the merits of the
petition." 15

7. I am in agreement with the view expressed in paragraph 23 that there can be no indefinite
detention without charges being filed. It must be recognized, however, that in cases of invasion,
rebellion and insurrection, or imminent danger thereof, the power of preventive detention is
recognized by the Constitution, considering that when public safety requires, the privilege of the writ
of habeas corpus may be suspended or martial law, as a last resort, declared. I had occasion to
speak on the matter in my separate opinion in Garcia-Padilla v. Enrile, where I stated that when the
stage of punitive detention is reached, there can be reliance on the writ of habeas corpus. 16

8. The next five paragraphs deal with the right to bail. Paragraph 24 correctly noted: "Next to life,
man loves his freedom." In the next paragraph reference is made of the presumption of innocence
and then of the constitutional right to bail, after which it was noted in paragraph 26 that under
Presidential Proclamation No. 2045 lifting martial law, the privilege of the writ of habeas corpus
"continues to be suspended in the two autonomous regions in Mindanao and in all other places with
respect to certain offenses," namely "the crimes of insurrection or rebellion, subversion, conspiracy
or proposal to commit such crimes, and for all other crimes and offenses committed by them in
furtherance of or on the occasion thereof, or incident thereto, or in connection therewith." Paragraph
27 reaches the heart of the matter, the main opinion laying down the principle that due to the
privilege of the writ of habeas corpus remain suspended, "the natural consequence is that the right
to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise
would defeat the very purpose of the suspension. Therefore, where the offense for which the
detainee was arrested is anyone of the said offenses he has no right to bail even after the charges
are filed in court." Paragraph 28 sets forth the ratio decidendi: "The crimes of rebellion, subversion,
conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct attacks on the life of the State." Then an analogy
is made in the next paragraph in this wise: "Just as an individual has a right to self-defense when his
life is endangered, so does the State. The suspension of the privilege of the writ is to enable the
State to hold in preventive imprisonment pending investigation and trial those persons who plot
against it and commit acts that endanger the State's very existence. For this measure of self-defense
to be effective, the right to bail must also be deemed suspended with respect to these offenses."
With respect, I dissent. It is not necessary to repeat what I said right at the beginning of this opinion
why I am unable to agree to the proposition that the suspension of the privilege of the writ carries
with it the suspension of the right to bail. Nor is there need to quote from my concurring and
dissenting opinions both in the Lansang and the Garcia-Padilla cases. Briefly put, my perception of
the matter traces itself to what was said in the landmark Milligan decision where the American
Supreme Court said that only one great right may be suspended "leaving all the rest forever
inviolable." 17 This is not to ignore the practical consideration set forth in the opinion of retired Chief
Justice Concepcion in Lansang that militates against my approach. First he aptly summarized it in
the words of Justice Tuason in Henandez, "if and when formal complaint is presented, the court
steps in and the executive steps out." 18 After which came this portion of the opinion of the then Chief
Justice: "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 firing 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." 19

9. That brings us to paragraph 33 of the main opinion. The characterization of a "merged executive
and legislative branches" does not suffer from the taint of in accuracy, if viewed from the practical
standpoint. Viewed as a matter of legal theory, I am not prepared to go that far. This Court, in a
unanimous opinion, expressly held: "The adoption of certain aspects of a parliamentary system in
the amended Constitution does not alter its essentially presidential character." 20 There is therefore
no repudiation of the theory of separation of powers. Through the exercise of vigorous presidential
leadership, however, made manifest in party caucuses, there is attained both unity of purpose and
action. In that sense, it could be asserted with truth that there is to all intents and purposes fusion of
the executive and legislative branches. Hence the need for the maintenance of the concept of an
independent judiciary. So it was pointed out in Fortun v. Labang. 21

10. One last word. Doctrines have to be assessed in terms of its effect on the governmental process.
The rationale cannot be dissociated from the texture of the times. They cannot ignore the forces at
work which may either solidify or rent asunder the political community. A crisis situation has a
compulsion all its own. There may then be a conflict between the traditional formulations and the
coercion of events. That may render even more unavoidable the intrusion of the demands of the
hour into the domain of law. Adherence to what has been all along the accepted basic approach to
human rights calls for fealty. There must be also, however, recognition of a more fluid standard in
the assessment of governmental action to protect the security of the state. It is my submission,
however, that only when there may be grave public danger should reliance on the high estate
accorded constitutional rights be stigmatized as being in the grip of the suffocating orthodoxies of the
law.

GUTIERREZ, JR., J., concurring opinion:

I concur in the sharply perceptive and heartfelt main opinion penned by Mr. Justice Hermogenes
Concepcion, Jr. especially in the reminders about rights of the accused, the cry of our people for
material necessities to give them a better life, and the proper administration of justice. However, I
would like to add some qualifying observations to a few points discussed by the ponente.

I agree, that the issuance of a presidential arrest and commitment order (PCO) must comply with the
requirements of the Constitution. However, until the issue is placed squarely before us in a more
appropriate case, I hesitate to concur in a categorical statement that a PCO may be equated with a
warrant of arrest issued by a judge under Section 3, Article IV of the Constitution. An examination of
Letters of Instructions Nos. 1125-A and 1211 indicates that the PCO is issued by the President, not
as "such other responsible officers as may be authorized by law" under Section 3 of the Bill of Rights
but as Commander-in-Chief exercising exclusively executive powers under the Constitution to meet
problems of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety
requires it. Precisely, the letters of instructions call for preliminary examination or investigation by a
judge as the regular procedure. Only when resort to judicial process is not possible or expedient
without endangering public order and safety and when the release on bail of the person or persons
already under arrest by virtue of a judicial warrant would endanger said public order and safety may
the military commander or the head of the law enforcement agency apply to the President, through
the Minister of National Defense, for a presidential commitment order. The fact that the stated
procedure in the issuance of a PCO is an exception to and differs from the regular procedure before
a judge for the issuance of a warrant of arrest shows that a PCO may not be equated completely
with a warrant of arrest.
In Qua Chee Gan v. Deportation Board, (9 SCRA 27), the issue was raised that the President,
having been given the power to deport undesirable aliens, may not be denied power which is
essential to carry into effect the deportation. This Court did not categorically rule that the President
himself may order the arrest of an alien for deportation purposes, but neither did it rule that he may
not do so. The fact is the President has on various occasions, such as those involving among others,
Mr. Harry Stonehill and some associates and perhaps and Yuyiteng brothers, ordered the arrest of
aliens without having to secure a warrant of arrest from a judge at a time when under the
Constitution only a judge could issue such a warrant. The commander-in-chief's power in a situation
where the writ of habeas corpus has been suspended or martial law has been proclaimed is certainly
broader and less subject to constitutional restrictions than the power of deportation. I may also add
that the President does not personally examine the complainant and the witnesses the latter may
produce as the multifarious affairs of state prevent him from doing so. But as in the case of judges
relying on investigations conducted by the fiscal, the President may rely on his Minister of National
Defense or the recommending military commander or the head of the law enforcement agency to
conduct what would be the equivalent of the judicial examination for probable cause. Of course, the
rules in Amarga v. Abbas, (98 Phil. 739) which impose on the judge issuing the warrant of arrest the
legal duty to first satisfy himself that there is probable cause without relying completely or
ministerially upon the findings of the fiscal, should also apply and I believe are in fact applied to
PCO's.

It also hesitate to give concurrence to an unqualified reiteration of the Lansang v. Garcia (42 SCRA
448) doctrine on the Court's inquiring into the existence of factual bases for the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law to determine their
constitutional sufficiency. While the Court has not been very receptive lately to the invocation of the
political question doctrine by State lawyers, I believe that the doctrine does apply in cases where a
political department- either the President or the Batasang Pambansa-exercises powers expressly
granted in an exclusive manner by the Constitution and which are of a clearly political nature not
proper for judicial determination. If the proclamation of martial law or the suspension of the privilege
of the writ is so patently arbitrary and as Justice Abad Santos says, lacking in popular support, there
will always be constitutional foundation for Supreme Court action to rule against arbitrariness.
However, as a general principle, whenever the President exercises his powers under the
Constitution to meet the supreme dangers of invasion, insurrection, or rebellion or imminent danger
thereof when the public safety requires it, we should not assume a power, upon the mere filing of a
petition, to render a judicial interpretation of an exclusively constitutionally granted power of the
President. Paraphrasing Coleman v. Miller (307 US 433, 83 L. Ed. 1385), the question of the
sufficiency of factual bases for the suspension of the privilege of the writ or the proclamation of
martial law would involve an appraisal of a great variety of relevant conditions involving national
security which can hardly be said to be within the appropriate range of evidence receivable in a court
of justice and as to which it would be an extravagant extension of judicial authority to assert judicial
notice, which after all is what we would be asserting in most cases involving the exercise of this
extraordinary presidential power.

Relova, J., I vote with Mr. Justice Hugo E. Gutierrez, Jr.

MELENCIO-HERRERA, J., concurring in the result:

I concur with paragraph 1 of the Decision, dismissing the petitions filed in these cases. The term
petitioner as used herein shall refer not only to Horacio R. Morales, Jr,, but will also include Antonio
C. Moncupa, Jr. insofar as legal statements may be applicable to the latter.

Petitioner was detained on April 21, 1982 by the Armed Forces of the Philippines under a
Presidential Commitment Order approved on April 23, 1982. On July 9, 1982, he filed the petition for
habeas corpus alleging that he was being illegally detained by respondents Minister of National
Defense, Chief of Staff of the Armed Forces of the Philippines, and, specifically, by Colonel Galileo
Kintanar, Commanding Officer of the 15th Military Intelligence Group. Petitioner's prayer was for the
issuance of the Writ directing respondents "to show the cause of his imprisonment or restraint, and
after hearing, to order his release forthwith." The Court issued the Writ on July 13,1982.

In a Supplemental Return to the Writ, respondents informed the Court that petitioner, on July 20,
1982, had been charged with Rebellion in Criminal Case No. Q-21091 of the Court of First Instance
of Rizal, and they asked that the petition for habeas corpus be denied for the reason that "with the
pendency of the case against petitioner before the Court below for trial and before the City Fiscal for
reinvestigation, there is all the more reason to dismiss the petition.

Under the foregoing facts, it is my opinion that these cases have become moot. There is no longer
any cause of action against respondents who must be deemed to have lost custody of petitioner (In
re Lasam vs. Enrile, 67 SCRA 43 [1975]). I do not agree with the view that petitioner is still not within
the jurisdiction of the Court below. If that were a correct proposition, the Court below would be
without jurisdiction to try the rebellion case. In criminal law, "the Court must also have jurisdiction
over the subject matter, that is, jurisdiction of the offense, and must have jurisdiction of the person of
the accused" (U.S.-U.S. v. Simon, D.C. Pa., 248, cited in 22 C.J.S. 300). Even if there has been no
warrant of arrest issued by the Court below, the person of petitioner, who is now being tried, must be
deemed as already within its jurisdiction (Carrington vs. Peterson, 4 Phil. 134 [1905]).

As petitioner is now within the jurisdiction of the Court below, the question in regards to the
suspension of the Writ of habeas corpus has become irrelevant. Considering that the Writ is never
issuable to a Court (Nava v. Gatmaitan, 90 Phil. 172 [1951]), there should be no justification in these
cases to assail whatever has been said or resolved in Lansang v. Garcia, 42 SCRA 448 (1971). That
particular matter could have been raised, procedurally, if petitioner had not been charged with
Rebellion before the Court below. Of course, it would then be for this Court to give or not to give due
course to the question. After all, habeas corpus is a discretionary Writ (Engels vs. Amrine 155 Kan.
385, 125 P2d 379, cited in 39 Am. Jur. 2d, 269). Or, that would be the occasion for the Court to
express its present views in regards to Lansang-Garcia. The Constitution is a living institution, and
its interpretation and construction lives with changing times and circumstances.

On the other hand, in reference to whether or not petitioner is entitled to bail in the rebellion case, I
believe that the proper procedure should be for petitioners to apply for bail before the Court below,
and after his motion is granted or denied, the matter can thereafter be elevated to appellate
consideration.

Once prosecuted in Court the position should not be taken that petitioner cannot be bailed, the right
to bail being a fundamental right except for those charged with capital offenses when evidence of
guilt is strong. The Constitution limited the suspension of the privilege of the writ of habeas corpus to
only one great right leaving the rest to remain forever inviolable (Ex parte Milligan, 18 U.S. Law ed.,
281, 297). The power of the Courts to grant bail cannot be curtailed if the supremacy of the Judiciary
within its own sphere is to be preserved. (Angara vs. Electoral Commission 63 Phil. 139 [1936];
Fernandez Subido vs. Lacson, 2 SCRA 1054 [1961]).

The reason for the objection to bail poses the same risk should the Court acquit petitioner. The risk
need not be taken by continuing the detention under the Presidential Commitment Order, for a
reasonable period, in the exercise of executive discretion by way of precaution essential for the
public safety. "Public danger warrants the substitution of executive process for judicial process"
(Moyer vs. Peabody, 53 Law, Ed., US 211-214, p.411).
MAKASIAR, J., concurring and dissenting:

I join Justices De Castro and Abad Santos in their opinion to abandon the Lansang doctrine and to
adhere to the doctrine in the Montenegro and Barcelon cases that determination by the Chief
Executive of the existence of invasion, rebellion, insurrection or imminent danger thereof and that
public safety requires it, for the suspension of the privilege of writ of habeas corpus and for the
proclamation of martial law, is a political question and therefore beyond the sphere of judicial inquiry.
In addition to the reasons advanced by Justices De Castro and Abad Santos, it should be stressed
that the prime responsibility for the preservation of the territorial integrity and sovereignty of the
Republic as well as its security, rests on the commander- in-chief and not on the Judiciary. It is a
classical truism that there is no power under the sun that is not susceptible of abuse. Any abuse or
any arbitrary exercise by the President as commander-in-chief of his constitutional power to proclaim
martial law or to suspend the privilege of the writ of habeas corpus, can be repudiated or overruled
by the people in the exercise of their sovereign right of suffrage at the next election, and, pending
the holding of the next election, through their constitutional right of free expression to sway public
opinion against such abuse of power.

To repeat, only the Chief Executive is well-equipped with the intelligence services as commander-in-
chief to secure the desired information as to the existence of the requirements for the proclamation
of martial law or for the suspension of the privilege of the writ of habeas corpus. The Supreme Court
is bereft of such aids. This was clearly demonstrated at the executive session during one of the
hearings in the Lansang case where the lawyers for the petitioners were present. Counsel for the
petitioners had no means of rebutting the evidence and information gathered by the military
organization presented in said Lansang case before this Court, which had to rely on such evidence
and information submitted by the Armed Forces. It was clearly an exercise in futility.

II

Corollary to the doctrine in the case of Aquino vs. Enrile (59 SCRA 183), which was re-affirmed in
Gumaua vs. Espino (96 SCRA 402, 412), that the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus, the suspension of the privilege of the writ of
habeas corpus must necessarily include the suspension of the right to bail for crimes which are
grounds for the suspension of the privilege. This should be the ruling principle because, as well-
stated by Mr. Justice De Castro, to release on bail persons indicted for rebellion or insurrection
would be to nullify the very purpose of the suspension of the privilege, which is precisely to prevent
them from continuing with the rebellion or insurrection or abetting the same. The suspension of the
privilege is precisely to restore tranquility and prevent the shedding of blood by our own people,
more than just insuring the safety of public and private properties.

Executive process is as valid as judicial process. In the epigramatic language of Mr. Justice Holmes:

... when it comes to a decision involving its (state) life, the ordinary rights of
individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for
judicial process. (See Kelly vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327,
328). This was admitted with regard to killing men in the actual clash of arms.
And we think it is obvious, although it was disputed, that the same is true to
temporary detention to prevent apprehended harm. (Moyer vs, Peabody, 212
U.S. 77.85. 53 L ed., 411, 417).
ABAD SANTOS, J., concurring and dissenting:

I concur in the result, i.e. in the dismissal of the petitions. This is as far as I can go because I cannot
give my assent to some of the statements made in the main opinion. My list is not exhaustive but
among them are the following:

1. I reject the doctrine laid down in Lansang vs. Garcia, 42 SCRA 448 [1971] that this Court "has the
authority to inquire into the existence of said factual bases [for the issuance of Proclamations Nos.
889 and 889-A which suspended the privilege of the writ of habeas corpus] in order to determine the
constitutional sufficiency thereof." (At p. 473.) In other words, this Court, on the urging of the
petitioners, declared that it has the power to determine whether or not the President acted arbitrarily
in suspending the writ. In so doing, this Court did a complete turnabout from Barcelon vs. Baker, 5
Phil, 87 [1905] and Montenegro vs. Castaneda, 91 Phil. 882 [1952] which enunciated the doctrine
that the President's determination in suspending the privilege of the writ of habeas corpus is final
and conclusive upon the courts.

I submit that Barcelon and Montenegro laid down the correct doctrine. The Lansang doctrine is
based on naivete; it demonstrates a lack of contact with reality.

How can this Court determine the factual bases in order that it can ascertain whether or not the
President acted arbitrarily in suspending the writ when, in the truthful words of Montenegro, "with its
very limited machinery [it] cannot be in better position [than the Executive Branch] to ascertain or
evaluate the conditions prevailing in the Archipelago?" (At p. 887.) The answer is obvious. It must
rely on the Executive Branch which has the appropriate civil and military machinery for the facts.
This was the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained. For this Court
relied on the very branch of the government whose act was in question to obtain the facts. And as
should be expected the Executive Branch supplied information to support its position and this Court
was in no situation to disprove them. It was a case of the defendant judging the suit. After all is said
and done, the attempt by this Court to determine whether or not the President acted arbitrarily in
suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from
giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension
of the writ lacks popular support because of one reason or another. But when this Court declares
that the suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the
Executive Branch) it in effect participates in the decision-making process. It assumes a task which it
is not equipped to handle; it lends its prestige and credibility to an unpopular act.

Lansang was an empty victory for the petitioners. They won a battle but lost the war. It could be that
this Court also lost something in the process. It raised expectations which it could not fulfill.

2. I cannot accept the statement in paragraph 27 of the main opinion that "because the privilege of
the writ of habeas corpus remains suspended 'with respect to persons at present detained as well as
others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by
them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith', the
natural consequence is that the right to bail for the commission of the said offenses is also
suspended."

In the instant case, the petitioners were arrested without warrant on April 21, 1982. However, a
Presidential Commitment Order was issued against them on April 23, 1982 and on July 20, 1982
(after the petitions for the writ of habeas corpus had been filed) the petitioners were charged with
rebellion before the Court of First Instance of Rizal in Criminal Case No. Q-21091.

Are they entitled to be released on bail if they so apply?

The ponente says that they have no right to bail because "To hold otherwise would defeat the very
purpose of the suspension" of the writ of habeas corpus. Another reason given to deny bail is Letter
of Instructions No. 1211 issued on March 9, 1982, which stipulates that "4. When issued, the
Presidential Commitment Order shall constitute authority to arrest the subject person or persons and
keep him or them under detention until ordered released by the President or his duly authorized
representative.

I submit that the petitioners are entitled to bail as a matter of right if they should apply for it.

The nature of LOI No. 1211 has been raised. Does it have the force of law or is it a mere directive to
officers named therein, namely: The Minister of National Defense; The Chief of Staff, Armed Forces
of the Philippines; The Chief, Philippine Constabulary; The Chief, Criminal Investigation Service; The
Director-General, NISA; The Minister of Justice; The Director, National Bureau of Investigation; and
The Solicitor General. To me the nature of LOI No. 1211 is irrelevant for the right to bail is
guaranteed by a higher law-the Constitution.

The Constitution guarantees that "All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive bail
shall not be required. " (Art. IV, Sec. 18.) The penalty for rebellion is reclusion temporal. Hence
rebellion is a non-capital offense and the petitioners should be granted bail by the court where their
case is pending if they ask for it.

The suspension of the writ of habeas corpus and the fact that they are covered by a Presidential
Commitment Order are of no consequence. Since the respondents have elected to bring the case of
the petitioners to court, the court acquired complete jurisdiction over them. To say that the court
cannot grant them bail is to diminish the court's jurisdiction.

The eloquent words of Mr. Justice Pedro Tuason are completely relevant:

Under constitutional guarantee bail is a matter of right which no court or


judge could properly refuse in all cases beyond the exceptions specified in
the Constitution. The meaning of this fundamental provision is that a party
accused of any and every bailable offense shall have the inestimable
privilege of giving security for his attendance at court and shall not be
imprisoned. (6 C.J. 893.)

The Constitution will be searched in vain for any provision that abridges this
right. Any argument in support of the contention that the suspension of the
writ of habeas corpus carries with it the suspension of the right to bail is, and
has to be, based on inference. I do not believe that the curtailment of the
right to bail is a normal, legal, or logical outcome of the suspension of the
writ. The error, I am inclined to believe, arises from a confusion of terms and
misapprehension of the principles underlying the suspension of the writ.

The purpose of the suspension of the writ is to enable the executive, as a


precautionary measure, to detain without interference persons suspected of
harboring designs harmful to public safety. (Ex Parte Simmerman, 132 F. 2d,
442, 446.) The Constitution goes no further. (Ex parte Milligan, 4 Wallace 2,
18 Law. Ed. 281, 297.) If this is the purpose, the suspension can contemplate
only cases which, without the suspension, are open to interference; such
cases are arrests and detentions by the executive department. Since the
suspension of the writ is designed to prevent the issuance of this
extraordinary remedy, and since the writ issues from the courts but never to
the courts, it necessarily follows that arrests and detentions by order of the
courts are outside the purview of the constitutional scheme.

As stated, the theory of the prosecution stems from a misconception of the


ends pursued by the suspension of the writ. If it is to have any color of
validity, this theory must assume that the Constitution directs positive action
to be taken, orders arrests and detentions to be made. Unfortunately or
fortunately, the Constitution does not do so. The intent of the Constitution in
authorizing the suspension of the writ of habeas corpus is no other than to
given the authorities a free hand in dealing with persons bent on
overthrowing the Government. The effects of the suspension are negative,
not positive; permissive, not mandatory nor even directory. By the
suspension, arrests and detentions beyond the period allowed under normal
circumstances are tolerated or legalized. The Constitution is not in the least
concerned with the disposition of persons accused of rebellion or
insurrection, whether or how long they should be kept in confinement, or
whether they should be set at large. In the nature of the governmental set-up
under the Constitution, their immediate fate is left to the discretion, within
reasonable and legal limits, of the proper department.

With these distinctions in mind, the query is, on what department of


Government is entrusted the prerogative of deciding what is to be done with
the prisoners charged with or suspected of rebellion or insurrection? The
answser, as I shall endeavor presently to explain, is either the executive or
the Court, depending on who has jurisdiction over them.

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the courts to keep
their hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.

By the same token, 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. Thereupon the corresponding
court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Henceforward, the
accused is entitled to demand all the constitutional safeguards and privileges
essential to due process. 'The Constitution does not say that he shall be tried
otherwise than by the course of common law.' (Ex parte Milligan, ante, 297.)
The Bill of Rights, including the right to bail and the right to a fair trial, are
unaffected by the suspension of the writ of habeas corpus. The Constitution
'suspended one great right and left the rest to remain forever inviolable. (Ex
parte Milligan, ante, 297.) (Nava et al vs. Gatmaitan 90 Phil. 172, 202-205
[1951].)
It should be stated that Chief Justice Ricardo Paras and Justices Cesar Bengzon, Alex Reyes and
Fernando Jugo shared the above opinion of Justice Tuason. Incumbent Chief Justice Enrique M.
Fernando expressed the same opinion in Lansang.

It is also said that the view "if and when a formal complaint is presented, the court steps in and the
executive steps out," will tend to induce the executive to refrain from filing formal charges as long as
it may be possible. (See opinion of Chief Justice Concepcion in Lansang, op. cit. on p. 494.) The
answer has long been given by this Court in Teehankee vs. Rovira, 75 Phil. 634 (1954) as follows:

This constitutional mandate [on the right to bail] refers to all persons not only
to persons against whom a complaint or information has already been
formally filed. It lays down the rule that all persons shall before conviction be
bailable except those charged with capital offenses when evidence of guilt is
strong. According to this provision, the general rule is that any person, before
being convicted of any criminal offense, shall be bailable, except when he is
charged with a capital offense and the evidence of his guilt is strong, Of
course, only those persons who have been either arrested, detained or
otherwise deprived of their liberty will ever have occasion to seek the benefits
of said provision. But in order that a person can invoke this constitutional
precept, it is not necessary that he should wait until a formal complaint or
information is filed against him. From the moment he is placed under arrest,
detention or restraint by the officers of the law, he can claim this- guarantee
of the Bill of Rights, and this right he retains unless and until he is charged
with a capital offense and evidence of his guilt is strong. Indeed if, as
admitted on all sides, the precept protects those already charged under a
formal complaint or information, there seems to be no legal or just reason for
denying its benefits to one as against whom the proper authorities may even
yet conclude that there exists no sufficient evidence of guilt. To place the
former in a more favored position than the latter would be, to say the least,
anomalous and absurd. If there is a presumption of innocence in favor of one
already formally charged with criminal offense (Constitution, Article III,
Section 1[17], a fortiori, this presumption should be indulged in favor of one
not yet so charged, although already arrested or detained." (At pp. 640-64 1.)

What I have said above about the right of an accused to bail in non-capital cases applies mutatis
mutandis to a person accused of a capital offense if the evidence of his guilt is not strong to be
determined after a hearing as provided in the Rules of Court: "Sec. 7. Capital offense-Burden of
proof. -On the hearing of an application for admission to bail made by any person in custody for the
commission of a capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution. ..." (Rule 114.)

Addendum to concurring and dissenting opinion:

Long after I had written my separate opinion in the above-entitled cases, the newspapers reported
the arrest of Mayor Aquilino Pimentel of Cagayan de Oro City on grounds of national security. It was
said that the arrest of Mayor Pimentel was effected pursuant to a Presidential Commitment Order
(PCO).

It was also reported that Msgr. Patrick Cronin Archbishop of Cagayan de Oro City, requested
President Ferdinand E. Marcos to lift the PCO because Pimentel was innocent of any wrong-doing.
The issues dated April 20, 1983, of Bulletin Today, Daily Express and Times Journal all report that
President Marcos denied the request of Archbishop Cronin because he had no power to release
Pimentel who was arrested and charged before a Regional Trial Court in Cebu City on very strong
evidence that he provided arms, funds, and sanctuary to subversives.

President Marcos is reported to have told Msgr. Cronin

The disposal of the body of the accused, as any lawyer will inform you, is
now within the powers of the regional trial court of Cebu City, and not within
the powers of the President.

It should be recalled the main opinion holds that the petitioners herein cannot be granted bail by the
court where they stand charged with the crime of rebellion because to hold otherwise would defeat
the very purpose of the suspension of the writ of habeas corpus and also because under LOI No.
1211, the release of persons arrested pursuant to a PCO can be effected only by order of the
President or his duly authorized representative. And it should be noted that every PCO has the
following operative last paragraph:

I, therefore, hereby order the arrest and detention of the abovenamed


persons until the final disposition/termination of their cases unless sooner
ordered released by me or by my duly authorized representative.

And yet in the case of Mayor Pimentel who was arrested by virtue of a PCO, the President no less
said that the power to release Pimentel "as any lawyer will inform you," is not his but of the Regional
Trial Court of Cebu City.

I am happy to be counted among the "any lawyer" mentioned by President Marcos for I believe, as I
have stated in my separate opinion, that the petitioners herein are entitled to bail after they were
charged in court with rebellion because "the court steps in and the executive steps out."

DE CASTRO, J., concurring and dissenting:

I concur in the dismissal of the petition. It is my considered opinion, as I have set forth in my
ponencia in the case for Habeas Corpus-Josefina Garcia, petitioner, G.R. No. 61388, hereafter
referred to as the Parong case, that when a person is arrested by virtue of a PCO or a PCO is
issued after his arrest effected without warrant or with one issued by court, his detention becomes
one without right to bail, even after charges have been filed against him in court. This is so because,
under the circumstance that the rebellion is still continuing, perhaps with greater intensity, a captured
or arrested rebel, or one in conspiracy with the rebels by acts in pursuance or in furtherance of the
rebellion, is not arrested and detained with a view to his immediate prosecution. It is more for the
purpose of detaining him as a military measure to suppress the rebellion. The suspension of the
privilege of the writ of habeas corpus has the effect of deferring trial for certain specified crimes
during the existence of the emergency, as I stated, citing legal writers and publicists, 1 in the
aforecited case of Parong, et al.

The reason is that a person cannot be prosecuted for a crime the commission of which has not yet
come to an end as in the case of the existing rebellion. A person who kills another can and should
immediately be prosecuted, because the killing itself constitutes the termination of the commission of
the crime, as is generally true with the common statutory offenses. But a rebel, even when already
captured or arrested and placed under detention, by reason of conspiracy with the rebels and their
co-conspirators who are free, continues in a state of committing the crime of rebellion which is a
continuing offense. If immediately prosecuted and by virtue thereof, allowed to be released on bail,
the crime of rebellion being bailable, the detainee would certainly join his comrades in the field to the
jeopardy of government efforts to suppress the rebellion, which is the rationale for the President
being constitutionally empowered to suspend the privilege of habeas corpus in case of invasion,
rebellion or insurrection, even mere imminent danger thereof, when public safety so requires. The
President, however, may order the filing of charges in court and trial thereof forthwith held, or even
release on bail, as his best judgment will dictate to him. But this is for the President alone to decide,
without interference from the courts, he being in the exercise of his military power.

It is for this reason that I dissent from the majority opinion insofar as it would reiterate the doctrine of
the Lansang case, being of the view that the earlier doctrine in the case of Barcelon vs. Baker and
Montenegro vs. Castaneda which was superseded by the Lansang doctrine should be reverted to,
as the more practical and realistic ruling, and more in consonance with the grant by the Constitution
to the President of the power to suspend the privilege of the writ of habeas corpus in the case of the
contingencies mentioned in the Constitution. Such power could be easily rendered nugatory if
interference by the Supreme Court were allowed as when it is given the power of judicial review over
the exercise of this particular presidential power. The doctrine of "political question" comes in to
make it improper for the power of judicial review to be exercise by the said Court, which doctrine
renders the exercise of the presidential power referred to non-justiciable. Justiciability of the
controversy is the basic requirement for the exercise of the power of judicial review.

Moreover, the Lansang doctrine could easily be viewed as discriminatory against our incumbent
President whose proclamation suspending the privilege of habeas corpus was held subject to judicial
review, where similar proclamations of former Chiefs Executive, Governor General Wright and
President Quirino, were held binding and conclusive upon the courts and all other persons. If this is
so, as it can be safely surmised that the incumbent President cannot but feel discriminated against
with the pronouncement of the Lansang doctrine, rectification is called for. Needless to state, I am
one with Justice Abad Santos in his vigorous dissent against the reiteration of the Lansang doctrine
as proposed in the majority opinion in the instant case.

In the Parong case (G.R. No. 61388), I stated, inter alia, the following:

In times of war or national emergency, the legislature may surrender a part of


its power of legislation to the President. Would it not be as proper and wholly
acceptable to lay down the principle that during such crises, the judiciary
should be less jealous of its power and more trusting of the Executive in the
exercise of its emergency powers in recognition of the same necessity?
Verily, the existence of the emergencies should be left to President's sole
and unfettered determination. His exercise of the power to suspend the
privilege of the writ of habeas corpus on the occasion thereof, should also be
beyond judicial review, Arbitrariness, as a ground for judicial inquiry of
presidential acts and decisions, sounds good in theory but impractical and
unrealistic, considering how well-nigh impossible it is for the courts to
contradict the finding of the President on the existence of the emergency that
gives occasion for the exercise of the power to suspend the privilege of the
writ. For the Court to insist on reviewing Presidential action on the ground of
arbitrariness may only result in a violent collision of two jealous powers with
tragic consequences, by all means to be avoided, in favor of adhering to the
more desirable and long-tested doctrine of "political question" in reference to
the power of judicial review."

Indeed, while the Supreme Court is said to be the Guardian of the Constitution, not all questions
arising therefrom may be brought to it for judicial review as to whether a constitutional violation has
been committed. The power of the President as the defender of the State has to be granted by the
Constitution, for how else could such power be granted except by the instrument which is the
repository of the sovereign will of the people. But certainly, the exercise of such power of defending
the Nation is not to be subordinated to that of the Supreme Court acting as Guardian of the
Constitution, for of what use is it to preserve the Constitution if We lose the Nation?

TEEHANKEE, J., dissenting:

The bench and bar and law scholars and students are in debt to the writer of the main opinion, Mr.
Justice Concepcion, Jr., for his thorough and perceptive restatement of the constitutional and basic
human rights of accused persons and detainees. The main opinion spotlights the grievances that
persons detained or charged for the crimes of insurrection, rebellion, subversion, conspiracy or
proposal to commit such crimes invariably bring to this Court. They complain, as petitioners do here,
of being arrested without any warrant of arrest; of being kept in isolation and being denied of their
constitutional right to counsel and to silence; of prolonged detention without any charges; of having
been subjected to maltreatment and torture; and of their counsel and families undergoing great
difficulties in locating or having access to them.

The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded decent
and humane treatment, further countering that such claims are merely calculated to arouse
sympathy and as propaganda against the Government and its institutions.

Upon the filing of the petition at bar on July 13, 1982, the Court, in issuing the writ of habeas corpus,
Resolved "to allow counsel for petitioner to visit and confer with the detainee in an atmosphere of
confidentiality, consistent with reasonable security measures which respondents may impose." At
the hearing held on July 22, 1982, the Court granted petitioner's plea for reinvestigation of the
charges and to "appoint the (Quezon) City Fiscal to act as Commissioner of the Court and receive
evidence of the charges made by petitioners before this Court of alleged torture and violation of their
constitutional rights, particularly the right to counsel." The City Fiscal in due time submitted his report
on the reinvestigation, affirming the existence of a prima facie case for rebellion against petitioner. In
February this year, he submitted the voluminous transcript of the proceedings held before him and
the evidence submitted to him without comment or recommendation on petitioner's charges of
alleged torture and violation of constitutional rights. The "material and relevant" charges have not
been taken up nor deliberated upon by the Court, but apparently will no longer be resolved by the,
Court, as was expected at the time, since the main opinion directs now that "they should be filed
before the body which has jurisdiction over them." 1 On my part, I believe that the Court should go
over the transcript and make some authoritative pronouncements on the charges at least of violation
of petitioners' right to counsel.

I. The vital problem is to assure the enjoyment of such constitutional and basic human rights of the
persons arrested, detained or charged, be they mere dissenters, subversives or hardened criminals.
As observed in the main opinion, this is what distinguishes our country as a republican and
democratic state from those arrested in totalitarian states who have no rights to speak of. This Court
stands as the guarantor of the constitutional rights of all persons within its jurisdiction and must see
to it that the rights are respected and not treated as paper rights.

These are the great rights guaranteed in the Bill of Rights (Article IV) of the Constitution:

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

The right to due process and equal protection of law:

Sec. 1. No person shall be deprived of life, liberty, or property without due


process of law, nor shall any person be denied the equal protection of the
laws.

xxx xxx xxx

Sec. 17. No person shall be held to answer for a criminal offense without due
process of law.

The right of free association:

Sec. 7. The right to form associations or societies for purposes not contrary
to law shall not be abridged.

Freedom of speech and press and assembly and petition:

Sec. 9. No law shall be passed abridging the freedom of speech, or of the


press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances.

The great writ of liberty:

Sec. 15. The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, rebellion, or imminent danger
thereof, when the public safety requires it.

The right to bail:

Sec. 8. All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties. Excessive bail shall not be required.

Presumption of innocence and Rights of speedy and impartial trial and confrontation:

Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and his failure to
appear is unjustified.

The right to counsel and silence.

Sec. 20n No person shall be compelled to be a witness against himself. Any


person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence.

The main opinion deals with the scope and extent of these rights and a number of passages bears
emphasis and reiteration, as follows:

The arresting officers, upon making the arrest, must inform the subject of the reason for the arrest
and show him the warrant of arrest, if any. They must inform him of his constitutional rights to remain
silent and to counsel. They must respect his right to communicate with his lawyer. No custodial
investigation shall be conducted unless it be in the presence of his counsel. The right to counsel may
be waived knowingly and intelligently and for such reason the waiver should be recognized only if
made with the assistance of counsel. The detainee's right to confer with counsel at any hour of the
day, alone and privately, should be respected.

Care should be exercised in making an arrest without a warrant. Where there


is no justification for the arrest, the public officer could be criminally liable for
arbitrary detention (under Article 124, Revised Penal Code) or unlawful arrest
(under Article 269, Idem) or for some other offense.2

Furthermore, we hold that under the judicial power of review and by


constitutional mandate, in all petitions for habeas corpus the court must
inquire into every phase and aspect of petitioner's detention-from the moment
petitioner was taken into custody up to the moment the court passes upon
the merits of the petition. Only after such a scrutiny can the court satisfy itself
that the due process clause of our Constitution has in fact been satisfied.

The submission that a person may be detained indefinitely without any


charges and the courts cannot inquire into the legality of the restraint goes
against the spirit and letter of the Constitution and is contrary to the basic
precepts of human rights and a democratic society. 3

However, there is a difference between preventive and punitive


imprisonment. Where the filing of charges in court or the trial of such charges
already filed becomes protracted without any justifiable reason, the detention
becomes punitive in character and the detainee regains his right to freedom. 4

II. Respondents' return in these cases, in asserting that "the allegations that petitioners have been
denied their right to counsel are not true. They simply did not ask for one, " disregards the consistent
injunction of the Court and of the law that the detainees need not bear the burden of asking for
counsel but should be informed of their right to counsel. The return's assertion that "petitioners also
waived the assistance of counsel during the investigation of their cases" also falls short of the
requirement that such waiver be made with the assistance of counsel to assure the validity thereof.
The late Chief Justice Fred Ruiz Castro, in maintaining in his dissenting opinion in Magtoto vs.
Manguera5 that the 1973 constitutional ban on uncounselled confessions should operate
retrospectively to June 15, 1954 when Republic Act 1083 (amending Article 125 of the Revised
Penal Code) was enacted recognizing the right of a detained person to counsel in any custodial
inquest, and not prospectively only as to such confessions obtained after the effectivity of the 1973
Constitution, stressed anew that it is "the obligation on the part of any detaining officer to inform the
person detained of his right to counsel before the very inception of custodial inquest." He enjoined us
eloquently that "(I) hold no brief against custodial interrogation per se. But I do entertain mortal fear
that when a detained person is subjected, without the assistance of counsel, to custodial
interrogation by peace officers, official lawlessness could be the rule and not the exception. Witness
the innumerable cases in the annals of adjudication where this Court has set at naught and declared
inadmissible confessions obtained from detained persons thru official lawlessness. It is a verity in the
life of our nation that people without influence and without stature in society have, more often than
not, been subjected to brutal and brutalizing third-degree methods, if not actually framed, by many
police agencies in this country. Instead of blinking our eyes shut to this reality, we must recognize it
for what it is, (and) I am completely conscious of the need for a balancing of the interests of society
with the rights and freedoms of the individual. I have advocated the balancing-of-interests rule in all
situations which call for an appraisal of the interplay of conflicting interests of consequential
dimensions. But I reject any proposition that would blindly uphold the interests of society at the
sacrifice of the dignity of any human being," and echoed Justice Douglas' aphorism that the rights of
none are safe unless the rights of all are protected.

In the recent case of Sobremonte vs. Enrile, 6 the Court did not rule on the therein detailed
assertions of maltreatment of the detainee, stating only that "redress for the alleged violation of
Socorro's constitutional rights may be secured through appropriate civil, criminal or administrative
charges." 7 The case was dismissed for having become moot with the detainee's release from
detention upon her filing the recommended P l,000.00-bail bond. But the Court decried that "all the
effort, energy and manhours expended by the parties and their counsel, including this Court, ... could
have been avoided had the officers of the AVSECOM and the ISAFP responded promptly to the
inquiries of petitioner instead of giving her the 'run-round' by referring her from one office to another."

III. I join Mr. Justice Abad Santos' stand that notwithstanding the suspension of the privilege of the
writ of habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No. 1211 that the
Presidential Commitment Order (PCO) constitutes authority to keep the subject person under
detention "until ordered released by the President or his duly authorized representative," the higher
and superior mandate of the Constitution guarantees the right to bail and vests the courts with the
jurisdiction and judicial power to grant bail which may not be removed nor diminished nor abdicated.
We cannot but so hold, if we are to be true to the fundamental precept that "The Constitution is a law
for rulers and for people equally in war and in peace and covers with the shield of its protection all
classes of men at all times and under all circumstances. "

The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep suspects
under surveillance and the courts' imposition of reasonable conditions in granting bail, such as
periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.

In my dissenting opinion in Buscayno vs. Military Commission, 8 Ireiterated my adherence to the


majority holding in the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs. Montesa 9
(although it failed one vote short of the required majority of six affirmative votes at the time) as
expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief Justice) Cesar
Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo that after formal
indictment in court by the filing against them of an information charging rebellion with multiple
murder, etc., accused persons covered by the proclamation of suspension of the privilege of the writ
of habeas corpus are entitled to the right to bail. As stressed by then Chief Justice Ricardo Paras.
"(T)he right to bail, along with the right of an accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct right to bail or to be
provisionally at liberty, it would a fortiori imply the suspension of all his other rights (even the rights to
be tried by a court) that may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable, "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to
bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of
the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or
implies the suspension of the right to bail, they would have very easily provided that all persons shall
before conviction be bailable by sufficient sureties, except those charged with capital offenses when
evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended.
As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable." 10 It is noteworthy
and supportive of the prevailing stand since 1951 that the other great constitutional rights remain
forever inviolable since the Constitution limited the suspension to only one great right (of the
privilege of the writ of habeas corpus), that there has been no amendment of the Constitution to
curtail the right to bail in case of such suspension notwithstanding the numerous constitutional
amendments adopted after the 1973 Constitution.

The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, -yielding to no pressure of convenience,
expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 11

And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law
would help in the fight against rebellion and movement for national reconciliation, thus: "And in my
opinion, one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an impartial application
thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinglupa, without benefit of those
fundamental privileges which the experience of the ages has deemed essential for the protection of
all persons accused of crime before the tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru faulty or misplaced devotion, uphold any
doubtful claims of Governmental power in diminution of individual rights, but will always cling to the
principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, 'the Courts will favor personal liberty.'" 12

IV. The most authoritative pronouncement in regard to the courts' judicial power to grant the
constitutional right to bail is of course none other than the President's himself. In all the metropolitan
newspapers of April 20, 1983, the President is reported to have "said that Pimentel has been
charged with rebellion before the regional trial court of Cebu City and is therefore under the
jurisdiction of the civil court and not only under the jurisdiction of the military by virtue of the PCO " In
a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of Cagayan de Oro and
Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the
President said that "(T)he disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City and not within the powers of the President."

The statement of the now Chief Justice in his separate opinion in Gumaua vs. Espino 13 referring to
his earlier concurring and dissenting opinion in Aquino vs. Military Commission No. 2,14 is most
relevant, mutatis mutandis, thus: " 'Were it not for the above mandate of the Transitory Provisions
[Article XVII, section 3, par. (2), 1973 Constitution], the submission of petitioner as to a military
commission being devoid of jurisdiction over civilians elicits approval. The controlling principle, to my
mind, is that supplied in the opinion of the United States Supreme Court in Duncan v. Kahanamoku
[327 U.S. 304, 322 (1946)], a decision impressed with the greatest relevance inasmuch as it
interpreted the specific section found in the Hawaiian Organic Act, which was also a feature of the
Philippine Autonomy Act, the source of the martial law provision in the 1935 Constitution.' As was
pointed out in the Duncan opinion penned by Justice Black: 'Courts and their procedural safeguards
are indispensable to our system of government. They were set up by our founders to protect the
liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S. Ct. at page 6, 87 L. Ed. 3.
Our system of government clearly is the antithesis of total military rule and the founders of this
country are not likely to have contemplated complete military dominance within the limits of a
Territory made part of this country and not recently taken from an enemy. They were opposed to
governments that placed in the hands of one man the power to make, interpret and enforce the laws.
Their philosophy has been the people's throughout the history. For that reason we have maintained
legislatures chosen by citizens or their representatives and courts and juries to try those who violate
legislative enactments. We have always been especially concerned about the potential evils of
summary criminal trials and have guarded against them by provisions embodied in the constitution
itself.' ... The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the
military to act vigorously for the maintenance of an orderly civil government and for the defense of
the island against actual or threatened rebellion or invasion, [it] was not intended to authorize the
supplanting of courts by military courts."

V. The courts, and ultimately the Supreme Court, are therefore called upon to review all such cases
and the accused's right to bail, pending trial and conviction or acquittal, on a case by case basis. The
courts with their procedural safeguards are then called upon to apply the Constitution and the Law
and to grant bail for clearly bailable (non-capital) offenses and in capital offenses to determine
whether or not evidence of guilt is strong, in consonance with guidelines laid down by the Supreme
Court, as in the leading case of Montano vs. Ocampo 15 (involving Senator Montano who was
charged with multiple murders and frustrated murders), as follows:

Brushing aside the charge that the preliminary investigation of this case by
the aforesaid Judge was railroaded, the same having been conducted at
midnight, a few hours after the complaint was filed, we are of the opinion that,
upon the evidence adduced in the application for bail in the lower court, as
such evidence is recited lengthily in the present petition and the answer
thereto, and extensively analyzed and discussed in the oral argument, there
is not such clear showing of guilt as would preclude all reasonable probability
of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise


absolute right guaranteed by the constitution, the natural tendency of the
courts has been toward a fair and liberal appreciation rather than otherwise,
of the evidence in the determination of the degree of proof and presumption
of guilt necessary to warrant a deprivation of that right.
Besides, to deny bail it is not enough that the evidence of guilt is strong; it
must also appear that in case of conviction the defendant's criminal liability
would probably call for a capital punishment. No clear or conclusive showing
before this Court has been made.

In the evaluation of the evidence the probability of flight is one other


important factor to be taken into account. The sole purpose of confining
accused in jail before conviction, it has been observed, is to assure his
presence at the trial. In other words, if denial of bail is authorized in capital
cases, it is only on the theory that the proof being strong, the defendant
would flee, if he has the opportunity, rather than face the verdict of the jury.
Hence, the exception to the fundamental right to be bailed should be applied
in direct ratio to the extent of the probability of evasion of prosecution.

The possibility of escape in this case, bearing in mind the defendant's official
and social standing and his other personal circumstances, seems remote if
not nil.

As editorially commented in one daily, 16 "(T)he danger, however, lies in the possibility that such
means (PCO's) may not always be employed judiciously. In issuing a PCO the President in most
cases must rely on field reports and recommendations filed by his subordinates, usually the military
and the intelligence community. No one can totally dismiss the possibility that the President may be
fed with false information in some instances. The consequences of such an error can only aggravate
further the country's security problems." When such cases occur and executive relief is not obtained,
the courts provide the means of securing redress from erroneous or wrongful arrests and detentions,
and at the very least, as shown from past experience, serve as the means for bringing the matter to
the President's attention and securing the needed relief.

Separate Opinions

FERNANDO, C.J., concurring:

concurring in the dismissed of the petitions, expressing conformity with the reiteration of the doctrine
announced in Lansang v. Garcia, and dissenting on the question of the right to bail which for him
may be invoked whenever allowable under the Constitution:

Let me make clear at the outset that I limit myself to a concurrence in the dismissal of the petitions,
expressing conformity with the reiteration of the doctrine in Lansang v. Garcia,1 and a dissent on the
question of the right to bail during a period of suspension of the privilege of the writ of habeas
corpus, which for me may be invoked whenever allowable under the Constitution, a stand I took both
as counsel in Hernandez v. Montesa 2 and thereafter as a member of the Court in Lansang v. Garcia,
3
Buscayno v. Enrile, 4 and Garcia-Padilla v. Ponce Enrile. 5 This is by no means to indicate lack of
due recognition of the intensity of conviction and lucidity of expression so evident in the exhaustive
opinion of Justice Concepcion Jr. It is merely to adhere to the norm of limiting myself to an appraisal
of the constitutional rights invoked insofar as they have a bearing on these petitions. 6 Hence this
separate expression of my views.
1. The first paragraph of the decisions of this Court is worded as follows: "The petitions are without
merit and are hereby DISMISSED." 7 I am in full agreement. The authoritative doctrine followed by
this Court in accordance with well-settled jurisprudence is that the moment it can be shown that the
persons detained are being held in lawful custody by virtue of a judicial process, then an application
of the privilege of the writ of habeas corpus cannot succeed.8

2. There is equally to my mind no question about the validity as a legal proposition of paragraph 4 of
the opinion, which speaks of the Philippines being "a republican state. Sovereignty resides in the
people and all government authority emanates from them. We have a Constitution framed by a
constitutional convention and duly ratified by the people. We subscribe to the rule of law. We believe
in human rights and we protect and defend them. Petitioners are entitled to the full enjoyment of all
the rights granted to them by law. And this Court stands as the guarantor of those rights." 9 This
Court in normal times as well as under emergency conditions has displayed fealty to human rights,
as protected and safeguarded by the Constitution. It is a matter of legitimate pride that even under
the 1935 Charter, the Philippines has accorded full recognition not only to the traditional civil and
political rights but to social and economic rights. The autonomy of the human personality and the
assurance of his dignity are a matter of deep public concern. It is equally a matter of legitimate pride
that during the period of martial law, with fun recognition of the power of the government to maintain
peace and order and preserve its authority, the judiciary, was not recreant to such a trust. 10 For the
entire judiciary, not only this Court, stands as a guarantor of those rights. It does so when it has to
act in a proper case submitted to it. The political branches are equally, to my mind, guarantors of
human rights; the Batasan Pambansa in the enactment of laws and the President in their
enforcement whether through executive orders implementing them or the issuance of decrees
having the force and effect of law. In the sense, however, that decisions coming from this Court have
not merely an inter-partes but an erga omnes effect, binding not only the litigants but also others
finding themselves similarly situated, it is quite accurate to state that "this Court stands as a
guarantor of those rights."

3. It is by virtue of the respect for constitutional rights that in the resolutions of this Court in both
applications for the writ, it was made clear that counsel of petitioners can visit them and confer with
them in an atmosphere of confidentiality consistent with reasonable security measures to be
imposed by respondents. 11 Again, it is by virtue of deference to the Constitution that in succeeding
resolutions, their allegations as to other instances of violation of their rights were referred for
investigation to the City Fiscal of Quezon City. 12

4. Paragraphs 5 to 19 of the opinion of the Court elaborate further on the matter. They are notable
for the concern shown for constitutional rights, with full recognition of the power of the state to deal
effectively with rebellion or subversion. I view the matter similarly. The same thought was given
expression in Lansang v. Garcia. 13 In the memorable language of Chief Justice Concepcion:
"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 Rules 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 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." 14

5. In the opinion of Justice Concepcion Jr., paragraph 21 explicitly states: "We reiterate this
doctrine." There is thus a reaffirmance of the ruling in Lansang cited in paragraph 20 to the effect
that the suspension of the privilege of the writ raises a judicial rather than a political question. I am in
complete agreement. That was the point of my dissent in the recently decided case of Garcia-Padilla
v. Enrile.

6. There is also on my part conformity with the view set forth in paragraph 22 that "in all petitions for
habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the
moment petitioner was taken into custody up to the moment the court passes upon the merits of the
petition." 15

7. I am in agreement with the view expressed in paragraph 23 that there can be no indefinite
detention without charges being filed. It must be recognized, however, that in cases of invasion,
rebellion and insurrection, or imminent danger thereof, the power of preventive detention is
recognized by the Constitution, considering that when public safety requires, the privilege of the writ
of habeas corpus may be suspended or martial law, as a last resort, declared. I had occasion to
speak on the matter in my separate opinion in Garcia-Padilla v. Enrile, where I stated that when the
stage of punitive detention is reached, there can be reliance on the writ of habeas corpus. 16

8. The next five paragraphs deal with the right to bail. Paragraph 24 correctly noted: "Next to life,
man loves his freedom." In the next paragraph reference is made of the presumption of innocence
and then of the constitutional right to bail, after which it was noted in paragraph 26 that under
Presidential Proclamation No. 2045 lifting martial law, the privilege of the writ of habeas corpus
"continues to be suspended in the two autonomous regions in Mindanao and in all other places with
respect to certain offenses," namely "the crimes of insurrection or rebellion, subversion, conspiracy
or proposal to commit such crimes, and for all other crimes and offenses committed by them in
furtherance of or on the occasion thereof, or incident thereto, or in connection therewith." Paragraph
27 reaches the heart of the matter, the main opinion laying down the principle that due to the
privilege of the writ of habeas corpus remain suspended, "the natural consequence is that the right
to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise
would defeat the very purpose of the suspension. Therefore, where the offense for which the
detainee was arrested is anyone of the said offenses he has no right to bail even after the charges
are filed in court." Paragraph 28 sets forth the ratio decidendi: "The crimes of rebellion, subversion,
conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance
thereof or in connection therewith constitute direct attacks on the life of the State." Then an analogy
is made in the next paragraph in this wise: "Just as an individual has a right to self-defense when his
life is endangered, so does the State. The suspension of the privilege of the writ is to enable the
State to hold in preventive imprisonment pending investigation and trial those persons who plot
against it and commit acts that endanger the State's very existence. For this measure of self-defense
to be effective, the right to bail must also be deemed suspended with respect to these offenses."
With respect, I dissent. It is not necessary to repeat what I said right at the beginning of this opinion
why I am unable to agree to the proposition that the suspension of the privilege of the writ carries
with it the suspension of the right to bail. Nor is there need to quote from my concurring and
dissenting opinions both in the Lansang and the Garcia-Padilla cases. Briefly put, my perception of
the matter traces itself to what was said in the landmark Milligan decision where the American
Supreme Court said that only one great right may be suspended "leaving all the rest forever
inviolable." 17 This is not to ignore the practical consideration set forth in the opinion of retired Chief
Justice Concepcion in Lansang that militates against my approach. First he aptly summarized it in
the words of Justice Tuason in Henandez, "if and when formal complaint is presented, the court
steps in and the executive steps out." 18 After which came this portion of the opinion of the then Chief
Justice: "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 firing 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." 19

9. That brings us to paragraph 33 of the main opinion. The characterization of a "merged executive
and legislative branches" does not suffer from the taint of in accuracy, if viewed from the practical
standpoint. Viewed as a matter of legal theory, I am not prepared to go that far. This Court, in a
unanimous opinion, expressly held: "The adoption of certain aspects of a parliamentary system in
the amended Constitution does not alter its essentially presidential character." 20 There is therefore
no repudiation of the theory of separation of powers. Through the exercise of vigorous presidential
leadership, however, made manifest in party caucuses, there is attained both unity of purpose and
action. In that sense, it could be asserted with truth that there is to all intents and purposes fusion of
the executive and legislative branches. Hence the need for the maintenance of the concept of an
independent judiciary. So it was pointed out in Fortun v. Labang. 21

10. One last word. Doctrines have to be assessed in terms of its effect on the governmental process.
The rationale cannot be dissociated from the texture of the times. They cannot ignore the forces at
work which may either solidify or rent asunder the political community. A crisis situation has a
compulsion all its own. There may then be a conflict between the traditional formulations and the
coercion of events. That may render even more unavoidable the intrusion of the demands of the
hour into the domain of law. Adherence to what has been all along the accepted basic approach to
human rights calls for fealty. There must be also, however, recognition of a more fluid standard in
the assessment of governmental action to protect the security of the state. It is my submission,
however, that only when there may be grave public danger should reliance on the high estate
accorded constitutional rights be stigmatized as being in the grip of the suffocating orthodoxies of the
law.

GUTIERREZ, JR., J., concurring opinion:

I concur in the sharply perceptive and heartfelt main opinion penned by Mr. Justice Hermogenes
Concepcion, Jr. especially in the reminders about rights of the accused, the cry of our people for
material necessities to give them a better life, and the proper administration of justice. However, I
would like to add some qualifying observations to a few points discussed by the ponente.

I agree, that the issuance of a presidential arrest and commitment order (PCO) must comply with the
requirements of the Constitution. However, until the issue is placed squarely before us in a more
appropriate case, I hesitate to concur in a categorical statement that a PCO may be equated with a
warrant of arrest issued by a judge under Section 3, Article IV of the Constitution. An examination of
Letters of Instructions Nos. 1125-A and 1211 indicates that the PCO is issued by the President, not
as "such other responsible officers as may be authorized by law" under Section 3 of the Bill of Rights
but as Commander-in-Chief exercising exclusively executive powers under the Constitution to meet
problems of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety
requires it. Precisely, the letters of instructions call for preliminary examination or investigation by a
judge as the regular procedure. Only when resort to judicial process is not possible or expedient
without endangering public order and safety and when the release on bail of the person or persons
already under arrest by virtue of a judicial warrant would endanger said public order and safety may
the military commander or the head of the law enforcement agency apply to the President, through
the Minister of National Defense, for a presidential commitment order. The fact that the stated
procedure in the issuance of a PCO is an exception to and differs from the regular procedure before
a judge for the issuance of a warrant of arrest shows that a PCO may not be equated completely
with a warrant of arrest.

In Qua Chee Gan v. Deportation Board, (9 SCRA 27), the issue was raised that the President,
having been given the power to deport undesirable aliens, may not be denied power which is
essential to carry into effect the deportation. This Court did not categorically rule that the President
himself may order the arrest of an alien for deportation purposes, but neither did it rule that he may
not do so. The fact is the President has on various occasions, such as those involving among others,
Mr. Harry Stonehill and some associates and perhaps and Yuyiteng brothers, ordered the arrest of
aliens without having to secure a warrant of arrest from a judge at a time when under the
Constitution only a judge could issue such a warrant. The commander-in-chief's power in a situation
where the writ of habeas corpus has been suspended or martial law has been proclaimed is certainly
broader and less subject to constitutional restrictions than the power of deportation. I may also add
that the President does not personally examine the complainant and the witnesses the latter may
produce as the multifarious affairs of state prevent him from doing so. But as in the case of judges
relying on investigations conducted by the fiscal, the President may rely on his Minister of National
Defense or the recommending military commander or the head of the law enforcement agency to
conduct what would be the equivalent of the judicial examination for probable cause. Of course, the
rules in Amarga v. Abbas, (98 Phil. 739) which impose on the judge issuing the warrant of arrest the
legal duty to first satisfy himself that there is probable cause without relying completely or
ministerially upon the findings of the fiscal, should also apply and I believe are in fact applied to
PCO's.

It also hesitate to give concurrence to an unqualified reiteration of the Lansang v. Garcia (42 SCRA
448) doctrine on the Court's inquiring into the existence of factual bases for the suspension of the
privilege of the writ of habeas corpus or the proclamation of martial law to determine their
constitutional sufficiency. While the Court has not been very receptive lately to the invocation of the
political question doctrine by State lawyers, I believe that the doctrine does apply in cases where a
political department- either the President or the Batasang Pambansa-exercises powers expressly
granted in an exclusive manner by the Constitution and which are of a clearly political nature not
proper for judicial determination. If the proclamation of martial law or the suspension of the privilege
of the writ is so patently arbitrary and as Justice Abad Santos says, lacking in popular support, there
will always be constitutional foundation for Supreme Court action to rule against arbitrariness.
However, as a general principle, whenever the President exercises his powers under the
Constitution to meet the supreme dangers of invasion, insurrection, or rebellion or imminent danger
thereof when the public safety requires it, we should not assume a power, upon the mere filing of a
petition, to render a judicial interpretation of an exclusively constitutionally granted power of the
President. Paraphrasing Coleman v. Miller (307 US 433, 83 L. Ed. 1385), the question of the
sufficiency of factual bases for the suspension of the privilege of the writ or the proclamation of
martial law would involve an appraisal of a great variety of relevant conditions involving national
security which can hardly be said to be within the appropriate range of evidence receivable in a court
of justice and as to which it would be an extravagant extension of judicial authority to assert judicial
notice, which after all is what we would be asserting in most cases involving the exercise of this
extraordinary presidential power.

Relova, J., I vote with Mr. Justice Hugo E. Gutierrez, Jr.

MELENCIO-HERRERA, J., concurring in the result:


I concur with paragraph 1 of the Decision, dismissing the petitions filed in these cases. The term
petitioner as used herein shall refer not only to Horacio R. Morales, Jr,, but will also include Antonio
C. Moncupa, Jr. insofar as legal statements may be applicable to the latter.

Petitioner was detained on April 21, 1982 by the Armed Forces of the Philippines under a
Presidential Commitment Order approved on April 23, 1982. On July 9, 1982, he filed the petition for
habeas corpus alleging that he was being illegally detained by respondents Minister of National
Defense, Chief of Staff of the Armed Forces of the Philippines, and, specifically, by Colonel Galileo
Kintanar, Commanding Officer of the 15th Military Intelligence Group. Petitioner's prayer was for the
issuance of the Writ directing respondents "to show the cause of his imprisonment or restraint, and
after hearing, to order his release forthwith." The Court issued the Writ on July 13,1982.

In a Supplemental Return to the Writ, respondents informed the Court that petitioner, on July 20,
1982, had been charged with Rebellion in Criminal Case No. Q-21091 of the Court of First Instance
of Rizal, and they asked that the petition for habeas corpus be denied for the reason that "with the
pendency of the case against petitioner before the Court below for trial and before the City Fiscal for
reinvestigation, there is all the more reason to dismiss the petition.

Under the foregoing facts, it is my opinion that these cases have become moot. There is no longer
any cause of action against respondents who must be deemed to have lost custody of petitioner (In
re Lasam vs. Enrile, 67 SCRA 43 [1975]). I do not agree with the view that petitioner is still not within
the jurisdiction of the Court below. If that were a correct proposition, the Court below would be
without jurisdiction to try the rebellion case. In criminal law, "the Court must also have jurisdiction
over the subject matter, that is, jurisdiction of the offense, and must have jurisdiction of the person of
the accused" (U.S.-U.S. v. Simon, D.C. Pa., 248, cited in 22 C.J.S. 300). Even if there has been no
warrant of arrest issued by the Court below, the person of petitioner, who is now being tried, must be
deemed as already within its jurisdiction (Carrington vs. Peterson, 4 Phil. 134 [1905]).

As petitioner is now within the jurisdiction of the Court below, the question in regards to the
suspension of the Writ of habeas corpus has become irrelevant. Considering that the Writ is never
issuable to a Court (Nava v. Gatmaitan, 90 Phil. 172 [1951]), there should be no justification in these
cases to assail whatever has been said or resolved in Lansang v. Garcia, 42 SCRA 448 (1971). That
particular matter could have been raised, procedurally, if petitioner had not been charged with
Rebellion before the Court below. Of course, it would then be for this Court to give or not to give due
course to the question. After all, habeas corpus is a discretionary Writ (Engels vs. Amrine 155 Kan.
385, 125 P2d 379, cited in 39 Am. Jur. 2d, 269). Or, that would be the occasion for the Court to
express its present views in regards to Lansang-Garcia. The Constitution is a living institution, and
its interpretation and construction lives with changing times and circumstances.

On the other hand, in reference to whether or not petitioner is entitled to bail in the rebellion case, I
believe that the proper procedure should be for petitioners to apply for bail before the Court below,
and after his motion is granted or denied, the matter can thereafter be elevated to appellate
consideration.

Once prosecuted in Court the position should not be taken that petitioner cannot be bailed, the right
to bail being a fundamental right except for those charged with capital offenses when evidence of
guilt is strong. The Constitution limited the suspension of the privilege of the writ of habeas corpus to
only one great right leaving the rest to remain forever inviolable (Ex parte Milligan, 18 U.S. Law ed.,
281, 297). The power of the Courts to grant bail cannot be curtailed if the supremacy of the Judiciary
within its own sphere is to be preserved. (Angara vs. Electoral Commission 63 Phil. 139 [1936];
Fernandez Subido vs. Lacson, 2 SCRA 1054 [1961]).
The reason for the objection to bail poses the same risk should the Court acquit petitioner. The risk
need not be taken by continuing the detention under the Presidential Commitment Order, for a
reasonable period, in the exercise of executive discretion by way of precaution essential for the
public safety. "Public danger warrants the substitution of executive process for judicial process"
(Moyer vs. Peabody, 53 Law, Ed., US 211-214, p.411).

MAKASIAR, J., concurring and dissenting:

I join Justices De Castro and Abad Santos in their opinion to abandon the Lansang doctrine and to
adhere to the doctrine in the Montenegro and Barcelon cases that determination by the Chief
Executive of the existence of invasion, rebellion, insurrection or imminent danger thereof and that
public safety requires it, for the suspension of the privilege of writ of habeas corpus and for the
proclamation of martial law, is a political question and therefore beyond the sphere of judicial inquiry.
In addition to the reasons advanced by Justices De Castro and Abad Santos, it should be stressed
that the prime responsibility for the preservation of the territorial integrity and sovereignty of the
Republic as well as its security, rests on the commander- in-chief and not on the Judiciary. It is a
classical truism that there is no power under the sun that is not susceptible of abuse. Any abuse or
any arbitrary exercise by the President as commander-in-chief of his constitutional power to proclaim
martial law or to suspend the privilege of the writ of habeas corpus, can be repudiated or overruled
by the people in the exercise of their sovereign right of suffrage at the next election, and, pending
the holding of the next election, through their constitutional right of free expression to sway public
opinion against such abuse of power.

To repeat, only the Chief Executive is well-equipped with the intelligence services as commander-in-
chief to secure the desired information as to the existence of the requirements for the proclamation
of martial law or for the suspension of the privilege of the writ of habeas corpus. The Supreme Court
is bereft of such aids. This was clearly demonstrated at the executive session during one of the
hearings in the Lansang case where the lawyers for the petitioners were present. Counsel for the
petitioners had no means of rebutting the evidence and information gathered by the military
organization presented in said Lansang case before this Court, which had to rely on such evidence
and information submitted by the Armed Forces. It was clearly an exercise in futility.

II

Corollary to the doctrine in the case of Aquino vs. Enrile (59 SCRA 183), which was re-affirmed in
Gumaua vs. Espino (96 SCRA 402, 412), that the proclamation of martial law automatically
suspends the privilege of the writ of habeas corpus, the suspension of the privilege of the writ of
habeas corpus must necessarily include the suspension of the right to bail for crimes which are
grounds for the suspension of the privilege. This should be the ruling principle because, as well-
stated by Mr. Justice De Castro, to release on bail persons indicted for rebellion or insurrection
would be to nullify the very purpose of the suspension of the privilege, which is precisely to prevent
them from continuing with the rebellion or insurrection or abetting the same. The suspension of the
privilege is precisely to restore tranquility and prevent the shedding of blood by our own people,
more than just insuring the safety of public and private properties.

Executive process is as valid as judicial process. In the epigramatic language of Mr. Justice Holmes:

... when it comes to a decision involving its (state) life, the ordinary rights of
individuals must yield to what he (the President) deems the necessities of the
moment. Public danger warrants the substitution of executive process for
judicial process. (See Kelly vs. Sanders, 99 U.S. 441, 446, 25 L ed. 327,
328). This was admitted with regard to killing men in the actual clash of arms.
And we think it is obvious, although it was disputed, that the same is true to
temporary detention to prevent apprehended harm. (Moyer vs, Peabody, 212
U.S. 77.85. 53 L ed., 411, 417).

ABAD SANTOS, J., concurring and dissenting:

I concur in the result, i.e. in the dismissal of the petitions. This is as far as I can go because I cannot
give my assent to some of the statements made in the main opinion. My list is not exhaustive but
among them are the following:

1. I reject the doctrine laid down in Lansang vs. Garcia, 42 SCRA 448 [1971] that this Court "has the
authority to inquire into the existence of said factual bases [for the issuance of Proclamations Nos.
889 and 889-A which suspended the privilege of the writ of habeas corpus] in order to determine the
constitutional sufficiency thereof." (At p. 473.) In other words, this Court, on the urging of the
petitioners, declared that it has the power to determine whether or not the President acted arbitrarily
in suspending the writ. In so doing, this Court did a complete turnabout from Barcelon vs. Baker, 5
Phil, 87 [1905] and Montenegro vs. Castaneda, 91 Phil. 882 [1952] which enunciated the doctrine
that the President's determination in suspending the privilege of the writ of habeas corpus is final
and conclusive upon the courts.

I submit that Barcelon and Montenegro laid down the correct doctrine. The Lansang doctrine is
based on naivete; it demonstrates a lack of contact with reality.

How can this Court determine the factual bases in order that it can ascertain whether or not the
President acted arbitrarily in suspending the writ when, in the truthful words of Montenegro, "with its
very limited machinery [it] cannot be in better position [than the Executive Branch] to ascertain or
evaluate the conditions prevailing in the Archipelago?" (At p. 887.) The answer is obvious. It must
rely on the Executive Branch which has the appropriate civil and military machinery for the facts.
This was the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained. For this Court
relied on the very branch of the government whose act was in question to obtain the facts. And as
should be expected the Executive Branch supplied information to support its position and this Court
was in no situation to disprove them. It was a case of the defendant judging the suit. After all is said
and done, the attempt by this Court to determine whether or not the President acted arbitrarily in
suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from
giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension
of the writ lacks popular support because of one reason or another. But when this Court declares
that the suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the
Executive Branch) it in effect participates in the decision-making process. It assumes a task which it
is not equipped to handle; it lends its prestige and credibility to an unpopular act.

Lansang was an empty victory for the petitioners. They won a battle but lost the war. It could be that
this Court also lost something in the process. It raised expectations which it could not fulfill.

2. I cannot accept the statement in paragraph 27 of the main opinion that "because the privilege of
the writ of habeas corpus remains suspended 'with respect to persons at present detained as well as
others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion,
conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by
them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith', the
natural consequence is that the right to bail for the commission of the said offenses is also
suspended."

In the instant case, the petitioners were arrested without warrant on April 21, 1982. However, a
Presidential Commitment Order was issued against them on April 23, 1982 and on July 20, 1982
(after the petitions for the writ of habeas corpus had been filed) the petitioners were charged with
rebellion before the Court of First Instance of Rizal in Criminal Case No. Q-21091.

Are they entitled to be released on bail if they so apply?

The ponente says that they have no right to bail because "To hold otherwise would defeat the very
purpose of the suspension" of the writ of habeas corpus. Another reason given to deny bail is Letter
of Instructions No. 1211 issued on March 9, 1982, which stipulates that "4. When issued, the
Presidential Commitment Order shall constitute authority to arrest the subject person or persons and
keep him or them under detention until ordered released by the President or his duly authorized
representative.

I submit that the petitioners are entitled to bail as a matter of right if they should apply for it.

The nature of LOI No. 1211 has been raised. Does it have the force of law or is it a mere directive to
officers named therein, namely: The Minister of National Defense; The Chief of Staff, Armed Forces
of the Philippines; The Chief, Philippine Constabulary; The Chief, Criminal Investigation Service; The
Director-General, NISA; The Minister of Justice; The Director, National Bureau of Investigation; and
The Solicitor General. To me the nature of LOI No. 1211 is irrelevant for the right to bail is
guaranteed by a higher law-the Constitution.

The Constitution guarantees that "All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive bail
shall not be required. " (Art. IV, Sec. 18.) The penalty for rebellion is reclusion temporal. Hence
rebellion is a non-capital offense and the petitioners should be granted bail by the court where their
case is pending if they ask for it.

The suspension of the writ of habeas corpus and the fact that they are covered by a Presidential
Commitment Order are of no consequence. Since the respondents have elected to bring the case of
the petitioners to court, the court acquired complete jurisdiction over them. To say that the court
cannot grant them bail is to diminish the court's jurisdiction.

The eloquent words of Mr. Justice Pedro Tuason are completely relevant:

Under constitutional guarantee bail is a matter of right which no court or


judge could properly refuse in all cases beyond the exceptions specified in
the Constitution. The meaning of this fundamental provision is that a party
accused of any and every bailable offense shall have the inestimable
privilege of giving security for his attendance at court and shall not be
imprisoned. (6 C.J. 893.)

The Constitution will be searched in vain for any provision that abridges this
right. Any argument in support of the contention that the suspension of the
writ of habeas corpus carries with it the suspension of the right to bail is, and
has to be, based on inference. I do not believe that the curtailment of the
right to bail is a normal, legal, or logical outcome of the suspension of the
writ. The error, I am inclined to believe, arises from a confusion of terms and
misapprehension of the principles underlying the suspension of the writ.

The purpose of the suspension of the writ is to enable the executive, as a


precautionary measure, to detain without interference persons suspected of
harboring designs harmful to public safety. (Ex Parte Simmerman, 132 F. 2d,
442, 446.) The Constitution goes no further. (Ex parte Milligan, 4 Wallace 2,
18 Law. Ed. 281, 297.) If this is the purpose, the suspension can contemplate
only cases which, without the suspension, are open to interference; such
cases are arrests and detentions by the executive department. Since the
suspension of the writ is designed to prevent the issuance of this
extraordinary remedy, and since the writ issues from the courts but never to
the courts, it necessarily follows that arrests and detentions by order of the
courts are outside the purview of the constitutional scheme.

As stated, the theory of the prosecution stems from a misconception of the


ends pursued by the suspension of the writ. If it is to have any color of
validity, this theory must assume that the Constitution directs positive action
to be taken, orders arrests and detentions to be made. Unfortunately or
fortunately, the Constitution does not do so. The intent of the Constitution in
authorizing the suspension of the writ of habeas corpus is no other than to
given the authorities a free hand in dealing with persons bent on
overthrowing the Government. The effects of the suspension are negative,
not positive; permissive, not mandatory nor even directory. By the
suspension, arrests and detentions beyond the period allowed under normal
circumstances are tolerated or legalized. The Constitution is not in the least
concerned with the disposition of persons accused of rebellion or
insurrection, whether or how long they should be kept in confinement, or
whether they should be set at large. In the nature of the governmental set-up
under the Constitution, their immediate fate is left to the discretion, within
reasonable and legal limits, of the proper department.

With these distinctions in mind, the query is, on what department of


Government is entrusted the prerogative of deciding what is to be done with
the prisoners charged with or suspected of rebellion or insurrection? The
answser, as I shall endeavor presently to explain, is either the executive or
the Court, depending on who has jurisdiction over them.

All persons detained for investigation by the executive department are under
executive control. It is here where the Constitution tells the courts to keep
their hands off-unless the cause of the detention be for an offense other than
rebellion or insurrection, which is another matter.

By the same token, 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. Thereupon the corresponding
court assumes its role and the judicial process takes its course to the
exclusion of the executive or the legislative departments. Henceforward, the
accused is entitled to demand all the constitutional safeguards and privileges
essential to due process. 'The Constitution does not say that he shall be tried
otherwise than by the course of common law.' (Ex parte Milligan, ante, 297.)
The Bill of Rights, including the right to bail and the right to a fair trial, are
unaffected by the suspension of the writ of habeas corpus. The Constitution
'suspended one great right and left the rest to remain forever inviolable. (Ex
parte Milligan, ante, 297.) (Nava et al vs. Gatmaitan 90 Phil. 172, 202-205
[1951].)

It should be stated that Chief Justice Ricardo Paras and Justices Cesar Bengzon, Alex Reyes and
Fernando Jugo shared the above opinion of Justice Tuason. Incumbent Chief Justice Enrique M.
Fernando expressed the same opinion in Lansang.

It is also said that the view "if and when a formal complaint is presented, the court steps in and the
executive steps out," will tend to induce the executive to refrain from filing formal charges as long as
it may be possible. (See opinion of Chief Justice Concepcion in Lansang, op. cit. on p. 494.) The
answer has long been given by this Court in Teehankee vs. Rovira, 75 Phil. 634 (1954) as follows:

This constitutional mandate [on the right to bail] refers to all persons not only
to persons against whom a complaint or information has already been
formally filed. It lays down the rule that all persons shall before conviction be
bailable except those charged with capital offenses when evidence of guilt is
strong. According to this provision, the general rule is that any person, before
being convicted of any criminal offense, shall be bailable, except when he is
charged with a capital offense and the evidence of his guilt is strong, Of
course, only those persons who have been either arrested, detained or
otherwise deprived of their liberty will ever have occasion to seek the benefits
of said provision. But in order that a person can invoke this constitutional
precept, it is not necessary that he should wait until a formal complaint or
information is filed against him. From the moment he is placed under arrest,
detention or restraint by the officers of the law, he can claim this- guarantee
of the Bill of Rights, and this right he retains unless and until he is charged
with a capital offense and evidence of his guilt is strong. Indeed if, as
admitted on all sides, the precept protects those already charged under a
formal complaint or information, there seems to be no legal or just reason for
denying its benefits to one as against whom the proper authorities may even
yet conclude that there exists no sufficient evidence of guilt. To place the
former in a more favored position than the latter would be, to say the least,
anomalous and absurd. If there is a presumption of innocence in favor of one
already formally charged with criminal offense (Constitution, Article III,
Section 1[17], a fortiori, this presumption should be indulged in favor of one
not yet so charged, although already arrested or detained." (At pp. 640-64 1.)

What I have said above about the right of an accused to bail in non-capital cases applies mutatis
mutandis to a person accused of a capital offense if the evidence of his guilt is not strong to be
determined after a hearing as provided in the Rules of Court: "Sec. 7. Capital offense-Burden of
proof. -On the hearing of an application for admission to bail made by any person in custody for the
commission of a capital offense, the burden of showing that evidence of guilt is strong is on the
prosecution. ..." (Rule 114.)

Addendum to concurring and dissenting opinion:

Long after I had written my separate opinion in the above-entitled cases, the newspapers reported
the arrest of Mayor Aquilino Pimentel of Cagayan de Oro City on grounds of national security. It was
said that the arrest of Mayor Pimentel was effected pursuant to a Presidential Commitment Order
(PCO).
It was also reported that Msgr. Patrick Cronin Archbishop of Cagayan de Oro City, requested
President Ferdinand E. Marcos to lift the PCO because Pimentel was innocent of any wrong-doing.

The issues dated April 20, 1983, of Bulletin Today, Daily Express and Times Journal all report that
President Marcos denied the request of Archbishop Cronin because he had no power to release
Pimentel who was arrested and charged before a Regional Trial Court in Cebu City on very strong
evidence that he provided arms, funds, and sanctuary to subversives.

President Marcos is reported to have told Msgr. Cronin

The disposal of the body of the accused, as any lawyer will inform you, is
now within the powers of the regional trial court of Cebu City, and not within
the powers of the President.

It should be recalled the main opinion holds that the petitioners herein cannot be granted bail by the
court where they stand charged with the crime of rebellion because to hold otherwise would defeat
the very purpose of the suspension of the writ of habeas corpus and also because under LOI No.
1211, the release of persons arrested pursuant to a PCO can be effected only by order of the
President or his duly authorized representative. And it should be noted that every PCO has the
following operative last paragraph:

I, therefore, hereby order the arrest and detention of the abovenamed


persons until the final disposition/termination of their cases unless sooner
ordered released by me or by my duly authorized representative.

And yet in the case of Mayor Pimentel who was arrested by virtue of a PCO, the President no less
said that the power to release Pimentel "as any lawyer will inform you," is not his but of the Regional
Trial Court of Cebu City.

I am happy to be counted among the "any lawyer" mentioned by President Marcos for I believe, as I
have stated in my separate opinion, that the petitioners herein are entitled to bail after they were
charged in court with rebellion because "the court steps in and the executive steps out."

DE CASTRO, J., concurring and dissenting:

I concur in the dismissal of the petition. It is my considered opinion, as I have set forth in my
ponencia in the case for Habeas Corpus-Josefina Garcia, petitioner, G.R. No. 61388, hereafter
referred to as the Parong case, that when a person is arrested by virtue of a PCO or a PCO is
issued after his arrest effected without warrant or with one issued by court, his detention becomes
one without right to bail, even after charges have been filed against him in court. This is so because,
under the circumstance that the rebellion is still continuing, perhaps with greater intensity, a captured
or arrested rebel, or one in conspiracy with the rebels by acts in pursuance or in furtherance of the
rebellion, is not arrested and detained with a view to his immediate prosecution. It is more for the
purpose of detaining him as a military measure to suppress the rebellion. The suspension of the
privilege of the writ of habeas corpus has the effect of deferring trial for certain specified crimes
during the existence of the emergency, as I stated, citing legal writers and publicists, 1 in the
aforecited case of Parong, et al.

The reason is that a person cannot be prosecuted for a crime the commission of which has not yet
come to an end as in the case of the existing rebellion. A person who kills another can and should
immediately be prosecuted, because the killing itself constitutes the termination of the commission of
the crime, as is generally true with the common statutory offenses. But a rebel, even when already
captured or arrested and placed under detention, by reason of conspiracy with the rebels and their
co-conspirators who are free, continues in a state of committing the crime of rebellion which is a
continuing offense. If immediately prosecuted and by virtue thereof, allowed to be released on bail,
the crime of rebellion being bailable, the detainee would certainly join his comrades in the field to the
jeopardy of government efforts to suppress the rebellion, which is the rationale for the President
being constitutionally empowered to suspend the privilege of habeas corpus in case of invasion,
rebellion or insurrection, even mere imminent danger thereof, when public safety so requires. The
President, however, may order the filing of charges in court and trial thereof forthwith held, or even
release on bail, as his best judgment will dictate to him. But this is for the President alone to decide,
without interference from the courts, he being in the exercise of his military power.

It is for this reason that I dissent from the majority opinion insofar as it would reiterate the doctrine of
the Lansang case, being of the view that the earlier doctrine in the case of Barcelon vs. Baker and
Montenegro vs. Castaneda which was superseded by the Lansang doctrine should be reverted to,
as the more practical and realistic ruling, and more in consonance with the grant by the Constitution
to the President of the power to suspend the privilege of the writ of habeas corpus in the case of the
contingencies mentioned in the Constitution. Such power could be easily rendered nugatory if
interference by the Supreme Court were allowed as when it is given the power of judicial review over
the exercise of this particular presidential power. The doctrine of "political question" comes in to
make it improper for the power of judicial review to be exercise by the said Court, which doctrine
renders the exercise of the presidential power referred to non-justiciable. Justiciability of the
controversy is the basic requirement for the exercise of the power of judicial review.

Moreover, the Lansang doctrine could easily be viewed as discriminatory against our incumbent
President whose proclamation suspending the privilege of habeas corpus was held subject to judicial
review, where similar proclamations of former Chiefs Executive, Governor General Wright and
President Quirino, were held binding and conclusive upon the courts and all other persons. If this is
so, as it can be safely surmised that the incumbent President cannot but feel discriminated against
with the pronouncement of the Lansang doctrine, rectification is called for. Needless to state, I am
one with Justice Abad Santos in his vigorous dissent against the reiteration of the Lansang doctrine
as proposed in the majority opinion in the instant case.

In the Parong case (G.R. No. 61388), I stated, inter alia, the following:

In times of war or national emergency, the legislature may surrender a part of


its power of legislation to the President. Would it not be as proper and wholly
acceptable to lay down the principle that during such crises, the judiciary
should be less jealous of its power and more trusting f the Executive in the
exercise of its emergency powers in recognition of the same necessity?
Verily, the existence of the emergencies should be left to President's sole
and unfettered determination. His exercise of the power to suspend the
privilege of the writ of habeas corpus on the occasion thereof, should also be
beyond judicial review, Arbitrariness, as a ground for judicial inquiry of
presidential acts and decisions, sounds good in theory but impractical and
unrealistic, considering how well-nigh impossible it is for the courts to
contradict the finding of the President on the existence of the emergency that
gives occasion for the exercise of the power to suspend the privilege of the
writ. For the Court to insist on reviewing Presidential action on the ground of
arbitrariness may only result in a violent collision of two jealous powers with
tragic consequences, by all means to be avoided, in favor of adhering to the
more desirable and long-tested doctrine of "political question" in reference to
the power of judicial review."
Indeed, while the Supreme Court is said to be the Guardian of the Constitution, not all questions
arising therefrom may be brought to it for judicial review as to whether a constitutional violation has
been committed. The power of the President as the defender of the State has to be granted by the
Constitution, for how else could such power be granted except by the instrument which is the
repository of the sovereign will of the people. But certainly, the exercise of such power of defending
the Nation is not to be subordinated to that of the Supreme Court acting as Guardian of the
Constitution, for of what use is it to preserve the Constitution if We lose the Nation?

TEEHANKEE, J., dissenting:

The bench and bar and law scholars and students are in debt to the writer of the main opinion, Mr.
Justice Concepcion, Jr., for his thorough and perceptive restatement of the constitutional and basic
human rights of accused persons and detainees. The main opinion spotlights the grievances that
persons detained or charged for the crimes of insurrection, rebellion, subversion, conspiracy or
proposal to commit such crimes invariably bring to this Court. They complain, as petitioners do here,
of being arrested without any warrant of arrest; of being kept in isolation and being denied of their
constitutional right to counsel and to silence; of prolonged detention without any charges; of having
been subjected to maltreatment and torture; and of their counsel and families undergoing great
difficulties in locating or having access to them.

The State through the Solicitor General on the other hand invariably denies all such charges and
submits affidavits of the arresting officers and detention custodian that detainees are afforded decent
and humane treatment, further countering that such claims are merely calculated to arouse
sympathy and as propaganda against the Government and its institutions.

Upon the filing of the petition at bar on July 13, 1982, the Court, in issuing the writ of habeas corpus,
Resolved "to allow counsel for petitioner to visit and confer with the detainee in an atmosphere of
confidentiality, consistent with reasonable security measures which respondents may impose." At
the hearing held on July 22, 1982, the Court granted petitioner's plea for reinvestigation of the
charges and to "appoint the (Quezon) City Fiscal to act as Commissioner of the Court and receive
evidence of the charges made by petitioners before this Court of alleged torture and violation of their
constitutional rights, particularly the right to counsel." The City Fiscal in due time submitted his report
on the reinvestigation, affirming the existence of a prima facie case for rebellion against petitioner. In
February this year, he submitted the voluminous transcript of the proceedings held before him and
the evidence submitted to him without comment or recommendation on petitioner's charges of
alleged torture and violation of constitutional rights. The "material and relevant" charges have not
been taken up nor deliberated upon by the Court, but apparently will no longer be resolved by the,
Court, as was expected at the time, since the main opinion directs now that "they should be filed
before the body which has jurisdiction over them." 1 On my part, I believe that the Court should go
over the transcript and make some authoritative pronouncements on the charges at least of violation
of petitioners' right to counsel.

I. The vital problem is to assure the enjoyment of such constitutional and basic human rights of the
persons arrested, detained or charged, be they mere dissenters, subversives or hardened criminals.
As observed in the main opinion, this is what distinguishes our country as a republican and
democratic state from those arrested in totalitarian states who have no rights to speak of. This Court
stands as the guarantor of the constitutional rights of all persons within its jurisdiction and must see
to it that the rights are respected and not treated as paper rights.

These are the great rights guaranteed in the Bill of Rights (Article IV) of the Constitution:

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

The right to due process and equal protection of law:

Sec. 1. No person shall be deprived of life, liberty, or property without due


process of law, nor shall any person be denied the equal protection of the
laws.

xxx xxx xxx

Sec. 17. No person shall be held to answer for a criminal offense without due
process of law.

The right of free association:

Sec. 7. The right to form associations or societies for purposes not contrary
to law shall not be abridged.

Freedom of speech and press and assembly and petition:

Sec. 9. No law shall be passed abridging the freedom of speech, or of the


press, or the right of the people peaceably to assemble and petition the
Government for redress of grievances.

The great writ of liberty:

Sec. 15. The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, rebellion, or imminent danger
thereof, when the public safety requires it.

The right to bail:

Sec. 8. All persons, except those charged with capital offenses when
evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties. Excessive bail shall not be required.

Presumption of innocence and Rights of speedy and impartial trial and confrontation:

Sec. 19. In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence
of the accused provided that he has been duly notified and his failure to
appear is unjustified.

The right to counsel and silence.

Sec. 20. No person shall be compelled to be a witness against himself. Any


person under investigation for the commission of an offense shall have the
right to remain silent and to counsel, and to be informed of such right. No
force, violence, threat, intimidation, or any other means which vitiates the free
will shall be used against him. Any confession obtained in violation of this
section shall be inadmissible in evidence.

The main opinion deals with the scope and extent of these rights and a number of passages bears
emphasis and reiteration, as follows:

The arresting officers, upon making the arrest, must inform the subject of the reason for the arrest
and show him the warrant of arrest, if any. They must inform him of his constitutional rights to remain
silent and to counsel. They must respect his right to communicate with his lawyer. No custodial
investigation shall be conducted unless it be in the presence of his counsel. The right to counsel may
be waived knowingly and intelligently and for such reason the waiver should be recognized only if
made with the assistance of counsel. The detainee's right to confer with counsel at any hour of the
day, alone and privately, should be respected.

Care should be exercised in making an arrest without a warrant. Where there


is no justification for the arrest, the public officer could be criminally liable for
arbitrary detention (under Article 124, Revised Penal Code) or unlawful arrest
(under Article 269, Idem) or for some other offense.2

Furthermore, we hold that under the judicial power of review and by


constitutional mandate, in all petitions for habeas corpus the court must
inquire into every phase and aspect of petitioner's detention-from the moment
petitioner was taken into custody up to the moment the court passes upon
the merits of the petition. Only after such a scrutiny can the court satisfy itself
that the due process clause of our Constitution has in fact been satisfied.

The submission that a person may be detained indefinitely without any


charges and the courts cannot inquire into the legality of the restraint goes
against the spirit and letter of the Constitution and is contrary to the basic
precepts of human rights and a democratic society. 3

However, there is a difference between preventive and punitive


imprisonment. Where the filing of charges in court or the trial of such charges
already filed becomes protracted without any justifiable reason, the detention
becomes punitive in character and the detainee regains his right to freedom. 4

II. Respondents' return in these cases, in asserting that "the allegations that petitioners have been
denied their right to counsel are not true. They simply did not ask for one, " disregards the consistent
injunction of the Court and of the law that the detainees need not bear the burden of asking for
counsel but should be informed of their right to counsel. The return's assertion that "petitioners also
waived the assistance of counsel during the investigation of their cases" also falls short of the
requirement that such waiver be made with the assistance of counsel to assure the validity thereof.
The late Chief Justice Fred Ruiz Castro, in maintaining in his dissenting opinion in Magtoto vs.
Manguera5 that the 1973 constitutional ban on uncounselled confessions should operate
retrospectively to June 15, 1954 when Republic Act 1083 (amending Article 125 of the Revised
Penal Code) was enacted recognizing the right of a detained person to counsel in any custodial
inquest, and not prospectively only as to such confessions obtained after the effectivity of the 1973
Constitution, stressed anew that it is "the obligation on the part of any detaining officer to inform the
person detained of his right to counsel before the very inception of custodial inquest." He enjoined us
eloquently that "(I) hold no brief against custodial interrogation per se. But I do entertain mortal fear
that when a detained person is subjected, without the assistance of counsel, to custodial
interrogation by peace officers, official lawlessness could be the rule and not the exception. Witness
the innumerable cases in the annals of adjudication where this Court has set at naught and declared
inadmissible confessions obtained from detained persons thru official lawlessness. It is a verity in the
life of our nation that people without influence and without stature in society have, more often than
not, been subjected to brutal and brutalizing third-degree methods, if not actually framed, by many
police agencies in this country. Instead of blinking our eyes shut to this reality, we must recognize it
for what it is, (and) I am completely conscious of the need for a balancing of the interests of society
with the rights and freedoms of the individual. I have advocated the balancing-of-interests rule in all
situations which call for an appraisal of the interplay of conflicting interests of consequential
dimensions. But I reject any proposition that would blindly uphold the interests of society at the
sacrifice of the dignity of any human being," and echoed Justice Douglas' aphorism that the rights of
none are safe unless the rights of all are protected.

In the recent case of Sobremonte vs. Enrile, 6 the Court did not rule on the therein detailed
assertions of maltreatment of the detainee, stating only that "redress for the alleged violation of
Socorro's constitutional rights may be secured through appropriate civil, criminal or administrative
charges." 7 The case was dismissed for having become moot with the detainee's release from
detention upon her filing the recommended P l,000.00-bail bond. But the Court decried that "all the
effort, energy and manhours expended by the parties and their counsel, including this Court, ... could
have been avoided had the officers of the AVSECOM and the ISAFP responded promptly to the
inquiries of petitioner instead of giving her the 'run-round' by referring her from one office to another."

III. I join Mr. Justice Abad Santos' stand that notwithstanding the suspension of the privilege of the
writ of habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No. 1211 that the
Presidential Commitment Order (PCO) constitutes authority to keep the subject person under
detention "until ordered released by the President or his duly authorized representative," the higher
and superior mandate of the Constitution guarantees the right to bail and vests the courts with the
jurisdiction and judicial power to grant bail which may not be removed nor diminished nor abdicated.
We cannot but so hold, if we are to be true to the fundamental precept that "The Constitution is a law
for rulers and for people equally in war and in peace and covers with the shield of its protection all
classes of men at all times and under all circumstances. "

The argument that otherwise the purpose of the suspension of the privilege would be defeated
ignores the overwhelming capability of the State and its military and police forces to keep suspects
under surveillance and the courts' imposition of reasonable conditions in granting bail, such as
periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.

In my dissenting opinion in Buscayno vs. Military Commission, 8 Ireiterated my adherence to the


majority holding in the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs. Montesa 9
(although it failed one vote short of the required majority of six affirmative votes at the time) as
expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief Justice) Cesar
Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo that after formal
indictment in court by the filing against them of an information charging rebellion with multiple
murder, etc., accused persons covered by the proclamation of suspension of the privilege of the writ
of habeas corpus are entitled to the right to bail. As stressed by then Chief Justice Ricardo Paras.
"(T)he right to bail, along with the right of an accused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct right to bail or to be
provisionally at liberty, it would a fortiori imply the suspension of all his other rights (even the rights to
be tried by a court) that may win for him ultimate acquittal and, hence, absolute freedom. The latter
result is not insisted upon for being patently untenable, "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to
bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of
the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or
implies the suspension of the right to bail, they would have very easily provided that all persons shall
before conviction be bailable by sufficient sureties, except those charged with capital offenses when
evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended.
As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever inviolable." 10 It is noteworthy
and supportive of the prevailing stand since 1951 that the other great constitutional rights remain
forever inviolable since the Constitution limited the suspension to only one great right (of the
privilege of the writ of habeas corpus), that there has been no amendment of the Constitution to
curtail the right to bail in case of such suspension notwithstanding the numerous constitutional
amendments adopted after the 1973 Constitution.

The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible, -yielding to no pressure of convenience,
expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and
no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended,
or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository
of civil liberty are bound to protect and maintain undiluted individual rights." 11

And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by
men of goodwill that respect for constitutional and human rights and adherence to the rule of law
would help in the fight against rebellion and movement for national reconciliation, thus: "And in my
opinion, one of the surest means to ease the uprising is a sincere demonstration of this
Government's adherence to the principles of the Constitution together with an impartial application
thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that
their comrades now under custody are being railroaded into Muntinglupa, without benefit of those
fundamental privileges which the experience of the ages has deemed essential for the protection of
all persons accused of crime before the tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru faulty or misplaced devotion, uphold any
doubtful claims of Governmental power in diminution of individual rights, but will always cling to the
principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the
Constitution, 'the Courts will favor personal liberty.'" 12

IV. The most authoritative pronouncement in regard to the courts' judicial power to grant the
constitutional right to bail is of course none other than the President's himself. In all the metropolitan
newspapers of April 20, 1983, the President is reported to have "said that Pimentel has been
charged with rebellion before the regional trial court of Cebu City and is therefore under the
jurisdiction of the civil court and not only under the jurisdiction of the military by virtue of the PCO " In
a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of Cagayan de Oro and
Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the
President said that "(T)he disposal of the body of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City and not within the powers of the President."

The statement of the now Chief Justice in his separate opinion in Gumaua vs. Espino 13 referring to
his earlier concurring and dissenting opinion in Aquino vs. Military Commission No. 2,14 is most
relevant, mutatis mutandis, thus: " 'Were it not for the above mandate of the Transitory Provisions
[Article XVII, section 3, par. (2), 1973 Constitution], the submission of petitioner as to a military
commission being devoid of jurisdiction over civilians elicits approval. The controlling principle, to my
mind, is that supplied in the opinion of the United States Supreme Court in Duncan v. Kahanamoku
[327 U.S. 304, 322 (1946)], a decision impressed with the greatest relevance inasmuch as it
interpreted the specific section found in the Hawaiian Organic Act, which was also a feature of the
Philippine Autonomy Act, the source of the martial law provision in the 1935 Constitution.' As was
pointed out in the Duncan opinion penned by Justice Black: 'Courts and their procedural safeguards
are indispensable to our system of government. They were set up by our founders to protect the
liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S. Ct. at page 6, 87 L. Ed. 3.
Our system of government clearly is the antithesis of total military rule and the founders of this
country are not likely to have contemplated complete military dominance within the limits of a
Territory made part of this country and not recently taken from an enemy. They were opposed to
governments that placed in the hands of one man the power to make, interpret and enforce the laws.
Their philosophy has been the people's throughout the history. For that reason we have maintained
legislatures chosen by citizens or their representatives and courts and juries to try those who violate
legislative enactments. We have always been especially concerned about the potential evils of
summary criminal trials and have guarded against them by provisions embodied in the constitution
itself.' ... The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the
military to act vigorously for the maintenance of an orderly civil government and for the defense of
the island against actual or threatened rebellion or invasion, [it] was not intended to authorize the
supplanting of courts by military courts."

V. The courts, and ultimately the Supreme Court, are therefore called upon to review all such cases
and the accused's right to bail, pending trial and conviction or acquittal, on a case by case basis. The
courts with their procedural safeguards are then called upon to apply the Constitution and the Law
and to grant bail for clearly bailable (non-capital) offenses and in capital offenses to determine
whether or not evidence of guilt is strong, in consonance with guidelines laid down by the Supreme
Court, as in the leading case of Montano vs. Ocampo 15 (involving Senator Montano who was
charged with multiple murders and frustrated murders), as follows:

Brushing aside the charge that the preliminary investigation of this case by
the aforesaid Judge was railroaded, the same having been conducted at
midnight, a few hours after the complaint was filed, we are of the opinion that,
upon the evidence adduced in the application for bail in the lower court, as
such evidence is recited lengthily in the present petition and the answer
thereto, and extensively analyzed and discussed in the oral argument, there
is not such clear showing of guilt as would preclude all reasonable probability
of any other conclusion.

Exclusion from bail in capital offenses being an exception to the otherwise


absolute right guaranteed by the constitution, the natural tendency of the
courts has been toward a fair and liberal appreciation rather than otherwise,
of the evidence in the determination of the degree of proof and presumption
of guilt necessary to warrant a deprivation of that right.
Besides, to deny bail it is not enough that the evidence of guilt is strong; it
must also appear that in case of conviction the defendant's criminal liability
would probably call for a capital punishment. No clear or conclusive showing
before this Court has been made.

In the evaluation of the evidence the probability of flight is one other


important factor to be taken into account. The sole purpose of confining
accused in jail before conviction, it has been observed, is to assure his
presence at the trial. In other words, if denial of bail is authorized in capital
cases, it is only on the theory that the proof being strong, the defendant
would flee, if he has the opportunity, rather than face the verdict of the jury.
Hence, the exception to the fundamental right to be bailed should be applied
in direct ratio to the extent of the probability of evasion of prosecution.

The possibility of escape in this case, bearing in mind the defendant's official
and social standing and his other personal circumstances, seems remote if
not nil.

As editorially commented in one daily, 16 "(T)he danger, however, lies in the possibility that such
means (PCO's) may not always be employed judiciously. In issuing a PCO the President in most
cases must rely on field reports and recommendations filed by his subordinates, usually the military
and the intelligence community. No one can totally dismiss the possibility that the President may be
fed with false information in some instances. The consequences of such an error can only aggravate
further the country's security problems." When such cases occur and executive relief is not obtained,
the courts provide the means of securing redress from erroneous or wrongful arrests and detentions,
and at the very least, as shown from past experience, serve as the means for bringing the matter to
the President's attention and securing the needed relief.

[G.R. Nos. L-6025-26. July 18, 1956.]


THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. AMADO V. HERNANDEZ,
ET AL., Defendants-Appellants.

RESOLUTION
CONCEPCION, J.:
This refers to the petition for bail filed by Defendant Appellant Amado Hernandez on June 26,
1954, and renewed on December 22, 1955. A similar petition, filed on December 28, 1953, had
been denied by a resolution of this court dated February 2, 1954. Although not stated in said
resolution, the same was due mainly to these circumstances: The prosecution maintains that
chanroblesvirtuallawlibrary

Hernandez is charged with, and has been convicted of, rebellion complexed with murders, arsons
and robberies, for which the capital punishment, it is claimed, may be imposed, although the lower
court sentenced him merely to life imprisonment. Upon the other hand, the defense contends,
among other things, that rebellion cannot be complexed with murder, arson, or robbery. Inasmuch
as the issue thus raised had not been previously settled squarely, and this court was then unable,
as yet, to reach a definite conclusion thereon, it was deemed best not to disturb, for the time being,
the course of action taken by the lower court, which denied bail to the movant. After mature
deliberation, our considered opinion on said issue is as follows: chanroblesvirtuallawlibrary
The first two paragraphs of the amended information in this case read: chanrobles virtuallawlibrary

The undersigned accuses (1) Amado V. Hernandez alias Victor alias Soliman alias Amado alias
AVH alias Victor Soliman, (2) Guillermo Capadocia alias Huan Bantiling alias Cap alias G.
Capadocia, (3) Mariano P. Balgos alias Bakal alias Tony Collantes alias Bonifacio, (4) Alfredo
Saulo alias Elias alias Fred alias A.B.S. alias A.B., (5) Andres Baisa, Jr. alias Ben alias Andy (6)
Genaro de la Cruz alias Gonzalo alias Gorio alias Arong, (7) Aquilino Bunsol alias Anong, (8)
Adriano Samson alias Danoy, (9) Juan J. Cruz alias Johnny 2, alias Jessie Wilson alias William,
(10) Jacobo Espino, (11) Amado Racanday, (12) Fermin Rodillas, and (13) Julian Lumanog alias
Manue, of the crime of rebellion with multiple murder, arsons and robberies committed as
follows:chanroblesvirtuallawlibrary

That on or about March 15, 1945, and for some time before the said date and continuously
thereafter until the present time, in the City of Manila, Philippines, and the place which they had
chosen as the nerve center of all their rebellious activities in the different parts of the Philippines,
the said accused, conspiring, confederating, and cooperating with each other, as well as with the
thirty-one (31) Defendants charged in criminal cases Nos. 14071, 14082, 14270, 14315, and 14344
of the Court of First Instance of Manila (decided May 11, 1951) and also with others whose
whereabouts and identities are still unknown, the said accused and their co-conspirators, being
then officers and/or members of, or otherwise associated with the Congress of Labor Organizations
(CLO) formerly known as the Committee on Labor Organization (CLO), an active agency, organ,
and instrumentality of the Communist Party of the Philippines (P.K.P.), with central offices in
Manila and chapters and affiliated or associated labor unions and other mass organizations in
different places in the Philippines, and as such agency, organ, and instrumentality, fully cooperates
in, and synchronizes its activities with the rebellious activities of the Hukbong Magpalayang
Bayan, (H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the
Philippines (P.K.P.) to thereby assure, facilitate, and effect the complete and permanent success of
the armed rebellion against the Republic of the Philippines, as the herein Defendants and their co-
conspirators have in fact synchronized the activities of the CLO with the rebellious activities of
the HMB and other agencies, organs and instrumentalities of the Communist Party of the
Philippines and have otherwise master- minded or promoted the cooperative efforts between the
CLO and HMB and other agencies, organs, and instrumentalities of the P.K.P. in the prosecution
of the rebellion against the Republic of the Philippines, and being then also high ranking officers
and/or members of, or otherwise affiliated with, the Communist Party of the Philippines (P.K.P.),
which is now actively engaged in an armed rebellion against the Government of the Philippines
through acts therefor committed and planned to be further committed in Manila and other places
in the Philippines, and of which party the Hukbong Mapagpalaya ng Bayan (HMB), otherwise
or formerly known as the Hukbalahaps (Huks), is the armed force, did then and there willfully,
unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the
Hukbong Mapagpalaya ng Bayan (HMB) or the Hukbalahaps (Huks) to rise publicly and take
arms against the Republic of the Philippines, or otherwise participate in such armed public
uprising, for the purpose of removing the territory of the Philippines from the allegiance to the
government and laws thereof as in fact the said Hukbong Mapagpalaya ng Bayan or
Hukbalahaps have risen publicly and taken arms to attain the said purpose by then and there
making armed raids, sorties and ambushes, attacks against police, constabulary and army
detachments as well as innocent civilians, and as a necessary means to commit the crime of
rebellion, in connection therewith and in furtherance thereof, have then and there committed acts
of murder, pillage, looting, plunder, arson, and planned destruction of private and public property
to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the
aforesaid purpose, as follows, to wit: chanroblesvirtuallawlibrary

Then follows a description of the murders, arsons and robberies allegedly perpetrated by the
accused as a necessary means to commit the crime of rebellion, in connection therewith and in
furtherance thereof.
Article 48 of the Revised Penal Code provides that: chanroblesvirtuallawlibrary

When a single act constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious crime shall be imposed,
the same to be applied in its maximum period.
It is obvious, from the language of this article, that the same presupposes the commission of two
(2) or more crimes, and, hence, does not apply when the culprit is guilty of only one crime.
Article 134 of said code reads: chanroblesvirtuallawlibrary

The crime of rebellion or insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body of land, naval or other armed
forces, or of depriving the Chief Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.
Pursuant to Article 135 of the same code any person, merely participating or executing the
commands of others in a rebellion shall suffer the penalty of prision mayor in its minimum period.
The penalty is increased to prision mayor and a fine not to exceed P20,000 for any person who
promotes, maintains or heads a rebellion or insurrection or who, while holding any public office
or employment, takes part therein: chanroblesvirtuallawlibrary

1. engaging in war against the forces of the government,


2. destroying property, or
3. committing serious violence,
4. exacting contributions or
5. diverting public funds from the lawful purpose for which they have been appropriated.
Whether performed singly or collectively, these five (5) classes of acts constitute only one offense,
and no more, and are, altogether, subject to only one penalty prision mayor and a fine not to
exceed P20,000. Thus for instance, a public officer who assists the rebels by turning over to them,
for use in financing the uprising, the public funds entrusted to his custody, could neither be
prosecuted for malversation of such funds, apart from rebellion, nor accused and convicted of the
complex crime of rebellion with malversation of public funds. The reason is that such malversation
is inherent in the crime of rebellion committed by him. In fact, he would not be guilty of rebellion
had he not so misappropriated said funds. In the imposition, upon said public officer, of the penalty
for rebellion it would even be improper to consider the aggravating circumstance of advantage
taken by the offender of his public position, this being an essential element of the crime he had
perpetrated. Now, then, if the office held by said offender and the nature of the funds malversed
by him cannot aggravate the penalty for his offense, it is clear that neither may it worsen the very
crime committed by the culprit by giving rise, either to an independent crime, or to a complex
crime. Needless to say, a mere participant in the rebellion, who is not a public officer, should not
be placed at a more disadvantageous position than the promoters, maintainers or leaders of the
movement, or the public officers who join the same, insofar as the application of Article 48 is
concerned.
One of the means by which rebellion may be committed, in the words of said Article 135, is by
engaging in war against the forces of the government and committing serious violence in the
prosecution of said war. These expressions imply everything that war connotes, namely; resort chan roblesvirtualawlibrary

to arms, requisition of property and services, collection of taxes and contributions, restraint of
liberty, damage to property, physical injuries and loss of life, and the hunger, illness and
unhappiness that war leaves in its wake except that, very often, it is worse than war in the
international sense, for it involves internal struggle, a fight between brothers, with a bitterness and
passion or ruthlessness seldom found in a contest between strangers. Being within the purview of
engaging in war and committing serious violence, said resort to arms, with the resulting
impairment or destruction of life and property, constitutes not two or more offense, but only one
crime that of rebellion plain and simple. Thus, for instance, it has been held that the crime of
treason may be committed by executing either a single or similar intentional overt acts, different
or similar but distinct, and for that reason, it may be considered one single continuous offense.
(Guinto vs. Veluz, 77 Phil., 801, 44 Off. Gaz., 909.) (People vs. Pacheco, 93 Phil., 521.)
Inasmuch as the acts specified in said Article 135 constitute, we repeat, one single crime, it follows
necessarily that said acts offer no occasion for the application of Article 48, which requires therefor
the commission of, at least, two crimes. Hence, this court has never in the past, convicted any
person of the complex crime of rebellion with murder. What is more, it appears that in every one
of the cases of rebellion published in the Philippine Reports, the Defendants were convicted of
simple rebellion, although they had killed several persons, sometimes peace officers (U. S. vs.
Lagnason, 3 Phil., 472; U. S. vs. Baldello, 3 Phil., 509, U. S. vs. Ayala, 6 Phil., 151; League
chan roblesvirtualawlibrary chan roblesvirtualawlibrary

vs. People, 73 Phil., 155).


Following a parallel line are our decisions in the more recent cases of treason, resulting from
collaboration with the Japanese during the war in the Pacific. In fact, said cases went further than
the aforementioned cases of rebellion, in that the theory of the prosecution to the effect that the
accused in said treason cases were guilty of the complex crime of treason with murder and other
crimes was expressly and repeatedly rejected therein. Thus, commenting on the decision of the
Peoples Court finding the accused in People vs. Prieto (80 Phil., 138, 45 Off. Gaz., 3329) guilty
of the crime of treason complexed by murder and physical injuries and sentencing him to death,
cralaw

and on the contention of the Solicitor General that Prieto had committed the complex crime of
treason with homicide, this court, speaking through Mr. Justice Tuason, said: chanroblesvirtuallawlibrary

The execution of some of the guerrilla suspects mentioned in these counts and the infliction of
physical injuries on others are not offenses separate from treason. Under the Philippine treason
law and under the United States constitution defining treason, after which the former was
patterned, there must concur both adherence to the enemy and giving him aid and comfort. One
without the other does not make treason.
In the nature of things, the giving of aid and comfort can only be accomplished by some kind of
action. Its very nature partakes, of a deed or physical activity as opposed to a mental operation.
(Cramer vs. U.S., ante.) This deed or physical activity may be, and often is, in itself a criminal
offense under another penal statute or provision. Even so, when the deed is charged as an element
of treason it becomes identified with the latter crime and cannot be the subject of a separate
punishment, or used in combination with treason to increase the penalty as Article 48 of the
Revised Penal Code provides. Just as one cannot be punished for possessing opium in a
prosecution for smoking the identical drug, and a robber cannot be held guilty of coercion or
trespass to a dwelling in a prosecution for robbery, because possession of opium and force and
trespass are inherent in smoking and in robbery respectively, so may not a Defendant be made
liable for murder as a separate crime or in conjunction with another offense where, as in this case,
it is averred as a constitutive ingredient of treason . Where murder or physical injuries are charged
cralaw

as overt acts of treason they cannot be regarded separately under their general denomination.
cralaw

(Italics supplied.)
Accordingly, we convicted the accused of simple treason and sentenced him to life imprisonment.
In People vs. Labra, 81 Phil., 377, 46 Off. Gaz., Supp. No. 1, p. 159, we used the following
language: chanroblesvirtuallawlibrary

The lower court found Appellant guilty not only of treason, but of murder, for the killing of Tomas
Abella, and, following the provisions of Article 48 of the Revised Penal Code sentenced him to
death, the maximum penalty provided by article 114.
The lower court erred in finding Appellant guilty of the murder of Tomas Abella. The arrest and
killing of Tomas Abella for being a guerilla, is alleged in count 3 of the information, as one of the
elements of the crime of treason for which Appellant is prosecuted. Such element constitute a part
of the legal basis upon which Appellant stands convicted of the crime of treason. The killing of
Tomas Abella cannot be considered as legal ground for convicting Appellant of any crime other
than treason. The essential elements of a given crime cannot be disintegrated in different parts,
each one stand as a separate ground to convict the accused of a different crime or criminal offense.
The elements constituting a given crime are integral and inseparable parts of a whole. In the
contemplation of the law, they cannot be used for double or multiple purposes. They can only be
used for the sole purpose of showing the commission of the crime of which they form part. The
factual complexity of the crime of treason does not endow it with the functional ability of worm
multiplication or amoeba reproduction. Otherwise, the accused will have to face as many
prosecutions and convictions as there are elements in the crime of treason, in open violation of the
constitutional prohibition against double jeopardy. (Italics supplied.)
The same conclusion was reached in People vs. Alibotod 82 Phil., 164, 46 Off. Gaz., 1005, despite
the direct participation of the Defendant therein in the maltreatment and killing of several persons.
In People vs. Vilo 82 Phil., 524, 46 Off. Gaz., 2517, we held: chanroblesvirtuallawlibrary

The Peoples Court, however, erred in classifying the crime as treason with murder. The killing
of Amado Satorre and one Segundo is charged as an element of treason, and it therefore becomes
identified with the latter crime, and cannot be the subject of a separate punishment or used in
combination with treason to increase the penalty as Article 48 of the Revised Penal Code
provides. (People vs. Prieto, L-399, 45 Off. Gaz. 3329. See, also People vs. Labra, L-886, 46 Off.
Gaz., [Supp. to No. 1], 159.) (Italics supplied.)
To the same effect was our decision in People vs. Roble 83 Phil., 1, 46 Off. Gaz., 4207. We stated
therein:
chanroblesvirtuallawlibrary

The court held that the facts alleged in the information is a complex crime of treason with
murders, with the result that the penalty provided for the most serious offense was to be imposed
on its maximum degree. Viewing the case from the standpoint of modifying circumstances, the
court believed that the same result obtained. It opined that the killings were murders qualified by
treachery and aggravated by the circumstances of evident premeditation, superior strength, cruelty,
and an armed band.
We think this is error. The tortures and murders set forth in the information are merged in and
formed part of the treason. They were in this case the overt acts which, besides traitorous intention
supplied a vital ingredient in the crime. (Italics supplied.)
The accused in People vs. Delgado 83 Phil., 9, 46 Off. Gaz., 4213, had been convicted by the
Peoples Court of the crime of treason complexed with the crime of murder and sentenced to the
extreme penalty. In our decision, penned by Mr. Justice Montemayor, we expressed ourselves as
follows: chanroblesvirtuallawlibrary

The Appellant herein was and is a Filipino citizen. His adherence to the Japanese forces of
occupation and giving them aid and comfort by acting as their spy, undercover man, investigator,
and even killer when necessary to cow and compel the inhabitants to surrender their firearms and
disclose information about the guerrillas has been fully established. His manner of investigation
and maltreatment of some of his victims like Tereso Sanchez and Patricio Suico, was so cruel,
brutal and inhuman that it is almost unbelievable that a Filipino can commit and practice such
atrocities especially on his own countrymen. But, evidently, war, confusion and opportunism can
and do produce characters and monster unknown during peace and normal times.
The Peoples Court found the Appellant guilty of treason complexed with murder. The Solicitor
General, however, maintains that the offense committed is simple treason, citing the doctrine laid
down by this court in the case of People vs. Prieto, (L-399, 45 Off. Gaz., 3329) but accompanied
by the aggravating circumstance under Article 14, paragraph 21, of the Revised Penal Code, and
not compensated by any mitigating circumstance, and he recommends the imposition of the
penalty of death. We agree with the Solicitor General that on the basis of the ruling of this court
in the case of People vs. Prieto, supra, the Appellant may be convicted only a treason, and that the
killing and infliction of physical injuries committed by him may not be separated from the crime
of treason but should be regarded as acts performed in the commission of treason, although, as
stated in said case, the brutality with which the killing or physical injuries were carried out may
be taken as an aggravating circumstance. (Italics supplied.)
and reduced the penalty from death to life imprisonment and a fine of P20,000.
Identical were the pertinent features of the case of People vs. Adlawan, 83 Phil., 194, 46 Off. Gaz.,
4299, in which, through Mr. Justice Reyes (A), we declared: chanroblesvirtuallawlibrary

we find merit in the contention that Appellant should have not been convicted of the so called
cralaw

Complex crime of treason with murder, robbery, and rape. The killings, robbery, and raping
mentioned in the information are therein alleged not as specific offenses but as mere elements of
the crime of treason for which the accused is being prosecuted. Being merged in and identified
with the general charged they cannot be used in combination with the treason to increase the
penalty under Article 48 of the Revised Penal Code. (People vs. Prieto, L-399, January 29, 1948,
45 Off. Gaz., 3329.) Appellant should, therefore, be held guilty of treason only. (Italics supplied.)
In People vs. Suralta, 85 Phil., 714, 47 Off. Gaz., 4595, the language used was: chanroblesvirtuallaw library
But the Peoples Court erred in finding the Appellant guilty of the complex crime of treason
cralaw

with murder, because murder was an ingredient of the crime of treason, as we have heretofore held
in several cases. (Italics supplied.)
This was reiterated in People vs. Navea, 87 Phil., 1, 47 Off. Gaz., Supp. No. 12, p. 252: chanroblesvirtuallawlibrary

The Solicitor General recommends that the Appellant be sentenced for the complex crime of
treason with murder. We have already ruled, however, that where, as in the present case, the killing
is charged as an element of treason, it becomes identified with the latter crime and cannot be the
subject of a separate punishment, or used in combination with treason to increase the penalty as
Article 48 of the Revised Penal Code provides. (Italics supplied.)
The question at bar was, also, taken up in the case of Crisologo vs. People and Villalobos (94 Phil.,
477), decided on February 26, 1954. The facts and the rule therein laid down are set forth in our
unanimous decision in said case, from which we quote: chanroblesvirtuallawlibrary

The Petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war and at the
time of the filing of the present petition a lieutenant colonel in the Armed Forces of the Philippines,
was on March 12, 1946, accused of treason under Article 114 of the Revised Penal Code in an
information filed in the Peoples Court. But before the accused could be brought under the
jurisdiction of the court, he was on January 13, 1947, indicted for violations of Commonwealth
Act No. 408, otherwise known as the Articles of War, before a military court created by authority
of the Army Chief of Staff, the indictment containing three charges, two of which, the first and
third, were those of treason consisting in giving information and aid to the enemy leaving to the
capture of USAFFE officers and men and other persons with anti-Japanese reputation and in urging
members of the USAFFE to surrender and cooperate with the enemy, while the second was that of
having certain civilians filled in time of war. Found innocent of the first and third charges but
guilty of the second, he was on May, 8, 1947, sentenced by the military court to life imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311 abolishing the Peoples Court, the
criminal case in that court against the Petitioner was, pursuant to the provisions of said Act,
transferred to the Court of First Instance of Zamboanga and there the charges of treason were
amplified. Arraigned in that court upon the amended information, Petitioner presented a motion
to quash, challenging the jurisdiction of the court and pleading double jeopardy because of his
previous sentence in the military court. But the court denied the motion and, after Petitioner had
pleaded not guilty, proceeded to trial, whereupon, the present petition for certiorari and prohibition
was filed in this court to have the trial judge desist from proceeding with the trial and dismiss the
case.
It is, however, claimed that the offense charged in the military court different from that charged
in the civil court and that even granting that the offense was identical the military court had no
jurisdiction to take cognizance of the same because the Peoples Court had previously acquired
jurisdiction over the case with the result that the conviction in the court martial was void. In support
of the first point, it is urged that the amended information filed in the Court of First Instance of
Zamboanga contains overt acts distinct from those charged in the military court. But we note that
while certain overt acts specified in the amended information in the Zamboanga court were not
specified in the indictment in the court martial, they all are embraced in the general charge of
treason, which is a continuous offense and one who commits it is not criminally liable for as many
crimes as there are overt acts, because all overt act he has done or might have done for that purpose
constitute but a single offense. (Guinto vs. Veluz, 44. Off. Gaz., 909; People vs. Pacheco, L-
chan roblesvirtualawlibrary
4750, promulgated July 31, 1953.) In other words, since the offense charged in the amended
information in the Court of First Instance of Zamboanga is treason, the fact that the said
information contains an enumeration of additional ovart acts not specifically mentioned in the
indictment before the military court is immaterial since the new alleged overt acts do not in
themselves constitute a new and distinct offense from that of treason, and this court has repeatedly
held that a person cannot be found guilty of treason and at the same time also guilty of overt acts
specified in the information for treason even if those overt acts, considered separately, are
punishable by law, for the simple reason that those overt acts are not separate offenses distinct
from that of treason but constitute ingredients thereof. (Italics supplied.)
Thus, insofar as treason is concerned, the opinion of this court, on the question whether said crime
may be complexed with murder, when the former was committed through the latter, and it is so
alleged in the information, had positively and clearly crystalized itself in the negative as early as
January 29, 1948.
We have not overlooked the decision in People vs. Labra (L-1240, decided on May 12, 1949), the
dispositive part of which partly reads: chanroblesv irtuallawlibrary

Wherefore, the verdict of guilty must be affirmed. Articles 48, 114 and 248 of the Revised Penal
Code are applicable to the offense of treason with murder. However for lack of sufficient votes to
impose the extreme penalty, the Appellant will be sentenced to life imprisonment .. cralaw

Although it mentions Articles 48 and 248 of the Revised Penal Code and the offense of treason
with murder, it should be noted that we affirmed therein the action of the Peoples Court, which,
according to the opening statement of our decision, convicted Labra of treason aggravated with
murder. Besides, the applicability of said articles was not discussed in said decision. It is obvious,
from a mere perusal thereof, that this court had no intention of passing upon such question.
Otherwise, it would have explained why it did not follow the rule laid down in the previous cases
of Prieto, Labra (August 10, 1948), Alibotod, Vilo, Roble, Delgado and Adlawan (supra), in which
the issue was explicitly examined and decided in the negative. Our continued adherence to this
view in the subsequent cases of Suralta, Navea, Pacheco and Crisologo, without even a passing
reference to the second Labra case, shows that we did not consider the same as reflecting the
opinion of the court on said question. At any rate, insofar as it suggests otherwise, the position
taken in the second Labra case must be deemed reversed by our decisions in said cases of Suralta,
Navea, Pacheco and Crisologo.
It is true that treason and rebellion are distinct and different from each other. This does not detract,
however, from the rule that the ingredients of a crime form part and parcel thereof, and, hence, are
absorbed by the same and cannot be punished either separately therefrom or by the application of
Article 48 of the Revised Penal Code. Besides there is more reason to apply said rule in the crime
of rebellion than in that of treason, for the law punishing rebellion (Article 135, Revised Penal
Code) specifically mentions the act of engaging in war and committing serious violence among its
essential elements thus clearly indicating that everything done in the prosecution of said war,
as a means necessary therefor, is embraced therein unlike the provision on treason (Article 114,
Revised Penal Code) which is less explicit thereon.
It is urged that, if the crime of assault upon a person in authority or an agent of a person in authority
may be committed with physical injuries (U. S. vs. Montiel, 9 Phil., 162), homicide (People vs.
Lojo, 52 Phil., 390) and murder (U. S. vs. Ginosolongo, 23 Phil., 171; U. S. vs. Baluyot, 40
chan roblesvirtualawlibrary

Phil., 385), and rape may be perpetrated with physical injuries (U. S. vs. Andaya, 34 Phil., 690),
then rebellion may, similarly, be complexed with murder, arson, or robbery. The conclusion does
not follow, for engaging in war, serious violence, physical injuries and destruction of life and
property are inherent in rebellion, but not in assault upon persons in authority or agents of persons
in authority or in rape. The word rebellion evokes, not merely a challenge to the constituted
authorities, but, also, civil war, on a bigger or lesser scale, with all the evils that go with it, whereas,
neither rape nor assault upon persons in authority connotes necessarily, or even generally, either
physical injuries, or murder. 1
In support of the theory that a rebel who kills in furtherance of the insurrection is guilty of the
complex crime of rebellion with murder, our attention has been called to Article 244 of the old
Penal Code of the Philippines, reading: chanroblesvirtuallawlibrary

Los delitos particulares cometidos en una rebelion o sedicion, o con motivo de ellas, seran
castigados respectivamente segun las disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores seran penados como tales los jefes principales de la
rebelion o sedicion.
and to the following observations of Cuello Calon (Derecho Penal, Vol. II, p. 110), in relation
thereto:chanroblesvirtuallawlibrary

Se establece aqui que el en una rebelion o sedicion, o con motivo de ellas, comete otros delitos
(v.g., roba, mata o lesiona), sera responsable de estos ademas de los delitos de rebelion o sedicion.
La dificultad consiste en estos casos en separar los accidentes de la rebelion o sedicion de los
delitos independientes de estas, y como las leyes no contienen en este punto precepto alguno
aplicable, su solucion ha quedado encomendada a los tribunales. La jurisprudencia que estos han
sentado considera como accidentes de la rebelion o sedicion cuya criminalidad queda embedida
en la de estos delitos, y, por tanto, no son punibles especialmente los hechos de escasa gravedad
(v.g., atentados, desacatos, lesiones menos graves); por el contrario, las infracciones graves, chan roblesvirtualawlibrary

como el asesinato o las lesiones graves, se consideran como delitos independientes de la rebelion
o de la sedicion.
It should be noted, however, that said Article 244 of the old Penal Code of the Philippines has not
been included in our Revised Penal Code. If the applicability of Article 48 to rebellion was
determined by the existence of said Article 244, then the elimination of the latter would be
indicative of the contrary.
Besides, the crime of rebellion, referred to by Cuello Calon, was that punished in the Spanish Penal
Code, Article 243 of which provides: chanroblesvirtuallawlibrary

Son reos de rebelion los que se alzaren publicamente y en abierta hostilidad contra el Gobierno
para cualquiera de los objetossiguientes: chanroblesvirtua llawlibrary

1. Destronar al Rey, deponer al Regente o Regencia del Reino, o privarles de su libertad personal
u obligarles a ejecutar un acto contrario a su voluntad.
2. Impedir la celebracion dc las elecciones para Diputados a Cortes o Senadores en todo el Reino,
o la reunion legitima de las mismas.
3. Disolver las Cortes o impedir la deliberacion de alguno de los Cuerpos Colegisladores o
arrancarles alguna resolucion.
4. Ejecutar cualquiera de los delitos previstos en el articulo 165.
5. Sustraer el Reino o parte de el o algun cuerpo de tropa de tierra o de mar, o cualquiera otra
clase de fuerza armada, de la obediencia del Supremo Gobierno.
6. Usar y ejercer por si o despojar a los Ministros de la Corona de sus facultades constitucionales,
o impedirles o coartarles su libre ejercicio. (Articulo 167, Codigo Penal de 1850. Veanse las
demas concordancias del articulo 181.)
Thus, the Spanish Penal Code did not specifically declare that rebellion includes the act of
engaging in war against the forces of the Government and of using serious violence for the
purposes stated in Article 134 of the Revised Penal Code. In view of this express statutory
inclusion of the acts of war and serious violence among the ingredients of rebellion in the
Philippines, it is clear that the distinction made by Cuello Calon between grave and less grave
offenses committed in the course of an insurrection cannot be accepted in this jurisdiction. Again,
if both classes of offenses are part and parcel of a rebellion, or means necessary therefor, neither
law nor logic justifies the exclusion of the one and the inclusion of the other. In fact, Cuello Calon
admits that the difficulty lies in separating the accidents of rebellion or sedition from the offenses
independent therefrom. Ergo, offenses that are not independent therefrom, but constituting an
integral part thereof committed, precisely, to carry out the uprising to its successful conclusion
are beyond the purview of Article 244. Indeed, the above quoted statement of Cuello Calon to
the effect that grave felonies committed in the course of an insurrection are independent therefrom
was based upon a decision of the Supreme Court of Spain of February 5, 1872, which we find
reported in the Codigo Penal de Filipinas, by Jose Perez Rubio, as follows: chanroblesvirtuallawlibrary

El Tribunal Supremo de Justicia en sentencia de 5 de Febrero de 1872, tiene declarado: Que chanroblesvirtuallawlibrary

segun los articulos 184 del Codigo Penal de 1830, y 259 del reformado (1870), los delitos
particulares cometidos en una rebelion o sedicion o con motivo de ellas se castigan
respectivamente segun las disposiciones de los mismos Codigos; y con arreglo al decreto de chan roblesvirtualawlibrary

amnistia de 9 de Agosto de 1876 estan solo comprendidos en aquella gracia las personas
sentenciadas, procesadas o sujatas a responsabilidad por delitos politicos de cualquiera especie -
cometidos desde el 29 de Septiembre de 1868; Que el asesinato del Gobernador Civil de Burgos chan roblesv irtualawlibrary

no fue resultado de movimiento alguno politico, sino de un mero tumulto que imprimio el
fanatismo, y cuya unica aparente tendencia era impedir que aquel funcionario inventariase ciertos
objetos artisticos que se decian existentes en la Catedral: Que esto lo demuestran las salvajes chanroblesvir tuallawlibrary

voces de muerte proferidas por los asesinos contra la persona del Gobernador; sin que al ejecutar chan roblesvirtualawlibrary

en el mismo recinto del templo los horrorosos hechos que aparecen en la causa, alzasen bandera
politica alguna ni dieran otro grito que el, en aquel momento sacrilego e impio, de Viva la
religion: Que la apreciar la Sala sentenciadora los hechos referentes al Gobernador Civil de
chanroblesvir tuallawlibrary

delito de asesinato, penarlo con arreglo al Codigo y declarar inaplicable el citado Decreto de
Amnistia, no ha cometido el error de derecho sealado en los casos 1. 3. del articulo 4. de la ley
sobre establecimiento de la casacion criminal, ni infringido los articulos 250 y 259 del Codigo
Penal de 1870. (Page 239; Italics supplied.) (See, also, El Codigo Penal, by Hidalgo Garcia,
chan roblesvirtualawlibrary

Vol. I, p. 623.)
It is apparent that said case is not in point. There was no issue therein on whether murder may be
complexed with rebellion or sedition. The question for determination was whether the killers of
the victim were guilty of the common crime of murder, or should have been convicted only of
rebellion or sedition. The court adopted the first alternative, not because of the gravity of the acts
performed by the accused, but because they had no political motivation. Moreover, the Endnote: cha nrob lesvirtuallawlibra ry

to said quotation from Cuello Calon reads: chanroblesvirtuallawlibrary


Los atentados desacatos y lesiones a la autoridad u otros delitos contra el orden publico cometidos
en la sedicion o con motivo de ella, no son delitos distintos de la sedicion, 3 octubre 1903, 19
noviembre 1906; la resistencia o acometimiento a la fuerza publica por los sediciosos es
chan roblesvirtualawlibrary

accidente de la rebelion, 23 mayo 1890.


El asesinato de un gobernador cometido en el curso de un tumulto debe penarse como un delito
comun de asesinato, 5 febrero 1872. Sin embargo, la jurisprudencia, tratandose de ciertos delitos,
es vacilante; asi, v. g., el acometimiento al teniente de alcalde se ha declarado en un fallo
chan roblesvirtualawlibrary

independiente de la perturbacion tumultuaria promovida para impedir al alcalde el cumplimiento


de sus providencias, 16 marzo 1885, mientras que un hecho analogo se ha considerado en otra
sentenda ya citada como accidente de la rebelion, 3 Octubre 1903. El acometimiento de los
sediciosos a la fuerza publica es accidente de la sedicion y no uno de los delitos particulares a que
se refiere este articulo, 23 de mayo 1890. Entre estos delitos a que alude el precepto se hallan las
lesiones que puedan causar los sediciosos, 19 noviembre 1906. (Endnote: 21, II Cuelo Calon, chanroble svirtualla wlibrary

Derecho Penal, pp. 110-111.) (Italics supplied.)


Thus in a decision, dated May 2, 1934, the Supreme Court of Spain held: chanroblesvirtuallawlibrary

Considerando que la nota deferencial entre los delitos de rebelion y sedicion, de una parte, y el
de atentado, esta constituida por la circunstancia de alzamiento publico que caracteriza a los
primeros, los cuales, por su indole generica, absorben a los de atentado y demas infracciones que
durante su comision y con su motivo se cometan, y afirmandose como hecho en la sentencia
recurrida que el procesado Mariano Esteban Martinez realizo, en union de otros, el atendado que
se le imputa sin alzarse publicamente, cae por su base el recurso fundado en supuesto distinto.
(Jurisprudencia Criminal, Tomo 130, p. 551.) (Italics supplied.)
To the same effect are, likewise, the following: chanroblesvirtuallawlibrary

La provocacion y el ataque a la Guardia Civil por paisanos alzadoz tumultuariamente para impedir
al Delegado de un Gobernador civil el cumplimiento de sus providencias, no pueden estimarse
constitutivos de un delito distinto del de sedicion, ni ser, por tanto, perseguidos y penados
separadamente.
La resistencia o el acometimiento de los sublevados a la fuerza publica constituye, en su caso,
una circunstancia o accidente de la sedicion y no es delito de los que el Codigo Penal en este
articulo (formerly Article 244, now Article 227) supone que pueden cometerse en ella o con su
motivo, los cuales denomina delitos particulares, y manda que se penen conforme a las
disposiciones del propio Codigo. (S. 23-5-890; G. 23-6-890; t. 44; pagina 671) (II Doctrina chan roblesvirtualawlibrary chan roblesvirtualawlibrary chan roblesvirtualawlibrary

Penal del Tribunal Supremo, p. 2411.) (Italics supplied.)


La Audiencia condeno como autores de atentado a dos de los amotinados que agredieron al
alcalde, e interpuesto recurso de casacion contra la sentencia, el Tribunal Supremo la casa y anula,
teniendo en cuenta lo dispuesto en el articulo 250 (numero 3.) del Codigo Penal;
Considerando que el acto llevado a cabo por el grupo constituye una verdadera sedicion, sin que
sea licito el dividir este hecho y calificarlo de atentado respecto a las personas que agredieron a
dicho alcalde, porque el acometimiento fue un accidente de la sedicion, de la cual eran todos
responsables, ya se efectuara por los agrupados en conjunto o por uno solo, por ser comun el objeto
que se proponian y no individual; y al calificar y penar este hecho la Audencia de Gerona, de
chan roblesvirtualawlibrary

atentado , ha incurrido en error de derecho e infringido los articulos 250 y siguientes del Codigo
cralaw

Penal, por no haberlos aplicado, y el 263, numero 2., en relacion con el 264, numeros 1. y 3.,
por su aplicacion (Sent. 3 octubre 1903. Gac. 12 Diciembre) (Enciclopedia Juridica Espaola,
cralaw

Tomo xxviii p. 250).


These cases are in accord with the text of said Article 244, which refers, not to all offenses
committed in the course of a rebellion or on the occasion thereof, but only to delitos particulares
or common crimes. Now, what are delitos particulares as the phrase is used in said article 244?
We quote from Viada: chanroblesv irtuallawlibrary

Las disposicion del primer parrafo de este articulo no puede ser mas justa; con arreglo a ella,
chan roblesvirtualawlibrary

los delitos particulares o comunes cometidos en una rebelion er sedicion no deberan reputarse
como accidentes inherentes a estas, sino como delitos especiales, a dicha rebelion y sedicion
ajenos, los que deberan ser respectivamente castigados con las penas que en este Codigo se las
sealan. Pero, que delitos deberan considerarse como comunes, y cuales como constitutivos de la
propia rebelion o sedicion? En cuanto a la rebelion, no ofrece esta cuestion dificultad alguna, pues
todo hecho que no este comprendido en uno y otro de los objetos especificados en los seis numeros
del articulo 243 sera extrao a la rebelion, y si se hallare definido en algun otro articulo del Codigo,
con arreglo a este debera ser castigado como delito particular. Pero tratandose de la sedicion,
comprendiendose como objetos de la misma, en los numeros 3., 4. y 5. del articulo 250, hechos
que constituyen otros tantos ataques a las personas o a la propiedad, cuales se consideran como
accidentes inherentes a la propria sedicion, y cuales deberan reputarse como delitos particulares o
comunes? En cuanto a los casos de los numeros 4. y 5., estimanos que el objeto politico y social
que se requiera para la realizacion de los actos en aquellos comprendidos es el que debe servirnos
de norma y guia para distinguir lo inherente a la sedicion de lo que es ajeno o extrao a ella.
Cuando no exista ese objeto politico y social, el acto de odio o venganza ejercido contra los
particulares o cualquiera clase del Estado, y el atentado contra las propiedades de los ciudadanos
o corporaciones mentados en el numero 5. del articulo 250, no seran constitutivos del delito de
sedicion, sino que deberan ser apreciados y castigados como delitos comunes, segun las
disposiciones respectivas de este Codigo y por lo que toca a los actos de odio o venganza
ejercidos en la persona o bienes de alguna Autoridad o sus agentes, estimamos que deberan
reputarse como delitos comunes todos aquellos hechos innecesarios 2 para la consecucion del fin
particular que se propusieran los sediciosos y como esenciales, constitutivos de la propia
sedicion todos aquellos actos de odio o venganza que sean medio racionalmente necesario para el
logro del objeto especial a que se encaminaran los esfuerzos de los sublevados. Asi, en el caso de
la Cuestion 1 expuesta en el comentario del articulo 258, es evidente que el fin que se propusieron
los sediciosos fue no pagar el impuesto a cuya cobranza iba a proceder el comisionado; pero chan roblesvirtualawlibrary

para lograr este objeto, como lo lograron, fue preciso hacer salir del pueblo al ejecutor, y a este
efecto, lo amenazaron, lo persiguieron y llegaron hasta lesionarle. Esas amenazas y lesiones no
pudieron apreciarse, ni las aprecio tampoco la Sala sentenciadora, como delito comun, sino como
accidente inherente a la misma sedicion, por cuanto fueron un medio racionalmente necesario para
la consecucion del fin determinado que se propusieron los culpables.
Pero cuando tal necesidad desaparece, cuando se hiere por herir, cuando se mata por matar, el
hecho ya, no puede ser considerado como un accidente propio de la sedicion, sino como un delito
especial, al que debe aplicarse la pena al mismo correspondiente. (III Viada, pp. 311-312.) (Italics
supplied.)
Cuello Calon is even more illuminating. He says: chanroblesv irtuallawlibrary
La doctrina cientifica considera los delitos llamados politicos como infracciones de un caracter
especial distintas de los denominados delitos comunes. De esta apreciacion ha nacido la division
de los delitos, desde el punto de vista de su naturaleza intrinseca, en delitos politicos y delitos
comunes o de derecho comun.
Se reputan delitos comunes aquellos que lesionan bienes juridicos individuales (v. gr., los delitos
contra la vida, contra la honestidad, contra la propiedad, etc.)
La nocion del delito politico no parece tan clara. Desde luego revisten este caracter los que atentan
contra el orden politico del Estado, contra su orden externo (independencia de la nacion, integridad
del territorio, etc.), o contra el interno (delitos contra el Jefe del Estado, contra la forma de
Gobierno, etc.). Pero tambien pueden ser considerados como politicos todos los delitos,
cualesquiera que sean incluso los de derecho comun, cuando fueron cometidos por moviles
politicos. Deben, por tanto, estimarse como infracciones de esta clase, no solo las que
objetivamente tengan tal caracter por el interes politico que lesionan, sino tambien las que,
apreciadas subjetivamente, manifiestan una motivacion de caracter politico.
Asi podria formulares esta definicion: es delito politico el cometido contra el orden politico del
chanroblesvirtuallawlibrary

Estado, asi como todo delito de cualquiera otra clase determinado por moviles politicos. (Cuello
Calon, Derecho Penal, Tomo I, pp. 247-249.)
In short, political crimes are those directly aimed against the political order, as well as such
common crimes as may be committed to achieve a political purpose. The decisive factor is the
intent or motive. If a crime usually regarded as common like homicide, is perpetrated for the
purpose of removing from the allegiance to the Government the territory of the Philippines
Islands or any part thereof, then said offense becomes stripped of its common complexion,
inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political
character of the latter.
Conformably with the foregoing, the case of murder against the Defendant in U. S. vs. Lardizabal
(1 Phil., 729) an insurgent who killed a prisoner of war because he was too weak to march with
the retreating rebel forces, and could not be left behind without endangering the safety of the latter
was dismissed upon the ground that the execution of said prisoner of war formed part of, and
was included in, the crime of sedition, which, in turn, was covered by an amnesty, to the benefits
of which said Defendant was entitled.
True, in U. S. vs. Alfont (1 Phil., 115), the commander of an unorganized group of insurgents was,
pursuant to Article 244 of our old Penal Code, convicted of homicide for having shot and killed a
woman who was driving a vehicle. But the complex crime of rebellion with homicide was not
considered in that case. Apart from this, the accused failed to established the relation between her
death and the insurrection. What is more, it was neither proved nor alleged that he had been
prompted by political reasons. In other words, his offense was independent from the rebellion. The
latter was merely the occasion for the commission of the former.
It is noteworthy that the aforementioned decisions of this court and the Supreme Court of Spain in
cases of treason, rebellion and sedition, are in line with the trend in other countries, as well as in
the field of international relations. Referring to the question as to what offenses are political in
nature, it was said in In re Ezeta (62 Fed. Rep., 972): chanroblesvirtuallawlibrary

What constitutes an offense of a political character has not yet been determined by judicial
authority. Sir James Stephens, in his work, History of the Criminal Law of England (Volume 2, p.
71), thinks that it should be interpreted to mean that fugitive criminals are not to be surrendered
for extradition crimes if those crimes were incidental to and formed a part of political
disturbances. Mr. John Stuart Mill, in the house of commons, in 1866, while discussing an
amendment to the act of extradition, on which the treaty between England and France was
founded, gave this definition: Any offense committed in the course of or furthering of civil war,
chanroblesvirtuallawlibrary

insurrection, or political commotion. Hansards Debates Vol. 184, p. 2115. In the Castioni Case,
supra, decided in 1891, the question was discussed by the most eminent counsel at the English bar,
and considered by distinguished judges, without a definition being framed that would draw a fixed
and certain line between a municipal or common crime and one of political character. I do not
think, said Denman, J., it is necessary or desirable that we should attempt to put into language,
in the shape of an exhaustive definition, exactly the whole state of things, or every state of things,
which might bring a particular case within the description of an offense of a political character.
In that case, Castioni was charged with the murder of one Rossi, by shooting him with a revolver,
in the town of Bellinzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a
member of the state council of the canton of Ticino. Castioni was a citizen of the same canton. For
some time previous to the murder, much dissatisfaction had been felt and expressed by a large
number of inhabitants of Ticino at the mode in which the political party then in power were
conducting the government of the canton. A request was presented to the government for a revision
of the constitution of the canton and, the government having declined to take a popular vote on
that question, a number of the citizens of Bellinzona, among whom was Castioni, seized the arsenal
of the town, from which they took rifles and ammunition, disarmed the gendarmes, arrested and
bound or handcuffed several persons connected with the government, and forced them to march in
front of the armed crowd to the municipal palace. Admission to the palace was demanded in the
name of the people, and was refused by Rossi and another member of the government, who were
in the palace. The crowd then broke open the outer gate of the palace, and rushed in, pushing before
them the government officials whom they had arrested and bound. Castioni, who was armed with
a revolver, was among the first to enter. A second door, which was locked, was broken open, and
at this time, or immediately after, Rossi, who was in the passage, was shot through the body with
a revolver, and died, very soon afterwards. Some other shots were fired, but no one else was
injured. Castioni fled to England. His extradition was requested by the federal council of
Switzerland. He was arrested and taken before a police magistrate, as provided by the statute, who
held him for extradition. Application was made by the accused to the high court of justice of
England for a writ of habeas corpus. He was represented by Sir Charles Russell, now lord chief
justice. The attorney general, Sir Richard Webster, appeared for the crown, and the solicitor
general, Sir Edward Clarke, and Robert Woodfal, for the federal council of Switzerland. This array
of distinguished counsel, and the high character of the court, commends the case as one of the
highest authority. It appeared from an admission by one of the parties engaged in the disturbances
that the death of Rossi was a misfortune, and not necessary for the rising. The opinions of the
judges as to the political character of the crime charged against Castioni, upon the facts stated, is
exceedingly interesting, but I need only refer to the following passages. Judge Denman says: chanroblesv irtuallawlibrary

The question really is whether, upon the facts, it is clear that the man was acting as one of a
number of persons engaged in acts of violence of a political character with a political object, and
as part of the political movement and rising in which he was taking part.
Judge Hawkins, in commenting upon the character of political offenses, said: chanroblesvirtuallawlibrary
I cannot help thinking that everybody knows there are many acts of a political character done
without reason, done against all reason; but at the same time one cannot look too hardly, and chan roblesvirtualawlibrary

weigh in golden scales the acts of men hot in their political excitement. We know that in heat, and
in heated blood, men often do things which are against and contrary to reason; but none the less chan roblesvirtualawlibrary

an act of this description may be done for the purpose of furthering and in furtherance of a political
rising, even though it is an act which may be deplored and lamented, as even cruel and against all
reason, by those who can calmly reflect upon it after the battle is over.
Sir James Stephens, whose definition as an author has already been cited, was one of the judges,
and joined in the views taken as to the political character of the crime charged against Castioni.
The prisoner was discharged. Applying, by analogy, the action of the English court in that case to
the four cases now before me, under consideration, the conclusion follows that the crimes charged
here, associated as they are with the actual conflict of armed forces, are of a political character.
The draft of a treaty on International Penal Law, adopted by the congress of Montevideo in 1888,
and recommended by the International American Conference to the governments of the Latin-
American nations in 1890, contains the following provisions (Article 23): chanroblesvirtuallawlibr ary

Political offenses, offenses subversive of the internal and external safety of a state or common
offenses connected with these, shall not warrant extradition. The determination of the character of
the offense is incumbent upon the nations upon which the demand for extradition is made; and chan roblesvirtualawlibrary

its decision shall be made under and according to the provisions of the law which shall prove to
be most favorable to the accused: chanrobles virtuallawlibrary

I am not aware that any part of this Code has been made the basis of treaty stipulations between
any of the American nations, but the article cited may be at least accepted as expressing the wisdom
of leading jurists and diplomats. The article is important with respect to two of its features: (1) chanroblesvirtuallawlibrary

provides that a fugitive shall not be extradited for an offense connected with a political offense, or
with an offense subversive of the internal or external safety of the state; and (2) the decision as chan roblesvir tualawlibrary

to the character of the offense shall be made under and according to the provisions of the law which
shall prove most favorable to the accused. The first provision is sanctioned by Calvo, who,
speaking of the exemption from extradition of persons charged with political offenses, says: chanroblesvirtuallawlibrary

The exemption even extends to acts connected with political crimes or offenses, and it is enough,
as says Mr. Fuastin Helio; that a common crime be connected with a political act, that it be the
chan roblesvirtualawlibrary

outcome of or be in the outcome of or be in the execution of such, to be covered by the privilege


which protects the latter Calvo, Droit Int. (3me ed.) p. 413, section 1262.
The second provision of the article is founded on the broad principles of humanity found
everywhere in the criminal law, distinguishing its administration with respect to even the worst
features of our civilization from the cruelties of barbarism. When this article was under discussion
in the international American conference in Washington, Mr. Silva, of Colombia, submitted some
observations upon the difficulty of drawing a line between an offense of a political character and
a common crime, and incidentally referred to the crime of robbery, in terms worthy of some
consideration here. He said: chanroblesvirtuallawlibrary

In the revolutions, as we conduct them in our countries, the common offenses are necessarily
mixed up with the political in many cases. A colleague General Caamao (of Ecuador) knows how
we carry on wars. A revolutionist needs horses for moving, beef to feed his troops, etc.; and chan roblesvirtualawlibrary

since he does not go into the public markets to purchase these horses and that beef, nor the arms
and saddles to mount and equip his forces, he takes them from the first pasture or shop he find at
hand. This is called robbery everywhere, and is a common offense in time of peace, but in time of
war it is a circumstance closely allied to the manner of waging it. International American
Conference, Vol. 2, p. 615. (Italics supplied.)
We quote the following from Endnote: cha nrob lesvirtuallawlibr ary (23) on pages 249-250, Vol. I, of Cuello Calons
aforesaid work on Derecho Penal.
En algunos Codigo y leyes de fecha proxima ya se halla una definicion de estos delitos. El Codigo
penal ruso, en el articulo 58, define como delitos contra revolucionarios los hechos encaminados
a derrocar o debilitar el poder de los Consejos de trabajadores y campesinos y de los gobiernos de
la Union de Republicas socialistas sovieticas, a destruir o debilitar la seguridad exterior de la Union
de Republicas Sovieticas y las conquistas economicas, politicas y nacionales fundamentales de la
revolucion proletaria. El Codigo Penal italiano de 1930 considera en eu articulo 8. como delito
politico todo delito que ofenda un interes politico del Estado o un derecho politico del ciudadano.
Tambien se reputa politico el delito comun deteminado, en todo o en parte por motivos politicos.
En la ley alemana de extradicion de 25 diciembre 1929 se definen asi: Son delitos politicos los chanroblesvirtuallawlibrary

atentados punibles directamente ejecutados contra la existencia o la seguridad del Estado, contra
el jefe o contra un miembro del gobierno del Estado como tal, contra una corporacion
constitucional, contra los derechos politicos las buenas relaciones con el extranjero. parrafo 3.,
2.
La 6a. Conferencia para la Unificacion del Derecho penal (Copenhague, 31 agosto 3
septiembre 1935) adopto la siguiente nocion del delito politico: chanroblesvirtuallawlibrary

1. Por delitos politicos se entienden los dirigidos contra la organizacion y funcionamiento del
Estado o contra los derechos que de esta organizacion y funcionamiento provienen para el
culpable.
2. Tambien se consideran como delitos politicos los delitos de derecho comun que constituyen
hechos conexos con la ejecucion de los delitos previstos en seccion 1.: como los hechos chanroblesvirtuallawlibrary

dirigidos a favorecer la ejecucion de un delito politico o a permitir al autor de este delito sustraerse
a la aplicacion de la ley penal.
3. No se consideraran delitos politicos aquellos a los que su autor sea inducido por un motivo
egoista y vil.
4. No se consideraran delitos los que creen un peligro para la comunidad o un estado de terror.
(Italics supplied.)
Thus, national, as well as international, laws and jurisprudence overwhelmingly favor the
proposition that common crimes, perpetrated in furtherance of a political offense, are divested of
their character as common offenses and assume the political complexion of the main crime of
which they are mere ingredients, and, consequently, cannot be punished separately from the
principal offense, or complexed with the same, to justify the imposition of a graver penalty.
There is one other reason and a fundamental one at that why Article 48 of our Penal Code
cannot be applied in the case at bar. If murder were not complexed with rebellion, and the two
crimes were punished separately (assuming that this could be done), the following penalties would
be imposable upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding
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P20,000 and prision mayor, in the corresponding period, depending upon the modifying
circumstances present, but never exceeding 12 years of prision mayor; and (2) for the crime of chan roblesvirtualawlibrary
murder, reclusion temporal in its maximum period to death, depending upon the modifying
circumstances present. In other words, in the absence of aggravating circumstances, the extreme
penalty could not be imposed upon him. However, under Article 48, said penalty would have to
be meted out to him, even in the absence of a single aggravating circumstance. Thus, said
provision, if construed in conformity with the theory of the prosecution, would be unfavorable to
the movant.
Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of
sentencing him to a penalty more severe than that which would be proper if the several acts
performed by him were punished separately. In the word of Rodriguez Navarro: chanroblesvirtuallawlibrary

La unificacion de penas en los casos de concurso de delitos a que hace referencia este articulo
(75 del Codigo de 1932), esta basado francamente en el principio pro reo. (II Doctrina Penal del
Tribunal Supremo de Espaa, p. 2168.) 3
We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal
Code (the counterpart of our Article 48), as amended in 1908 and then in 1932, reading: chanroblesvirtuallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado maximo,
hasta el limite que represente la suma de las que pudieran imponerse, penando separadamente los
delitos.
Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por separado.
(Rodriguez Navarro, Doctrino Penal del Tribunal Supremo, Vol. II, p. 2163.)
and that our Article 48 does not contain the qualification inserted in said amendment, restricting
the imposition of the penalty for the graver offense in its maximum period to the case when it does
not exceed the sum total of the penalties imposable if the acts charged were dealt with separately.
The absence of said limitation in our Penal Code does not, to our mind, affect substantially the
spirit of said Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason
to inflict a punishment graver than that prescribed for each one of said offenses put together. In
directing that the penalty for the graver offense be, in such case, imposed in its maximum period,
Article 48 could have had no other purpose than to prescribe a penalty lower than the aggregate of
the penalties for each offense, if imposed separately. The reason for this benevolent spirit of Article
48 is readily discernible. When two or more crimes are the result of a single act, the offender is
deemed less perverse than when he commits said crimes thru separate and distinct acts. Instead of
sentencing him for each crime independently from the other, he must suffer the maximum of the
penalty for the more serious one, on the assumption that it is less grave than the sum total of the
separate penalties for each offense.
Did the framers of Article 48 have a different purpose in dealing therein with an offense which is
a means necessary for the commission of another? To begin with, the culprit cannot, then, be
considered as displaying a greater degree of malice than when the two offenses are independent of
each other. On the contrary, since one offense is a necessary means for the commission of the
other, the evil intent is one, which, at least, quantitatively, is lesser than when the two offenses are
unrelated to each other, because, in such event, he is twice guilty of having harbored criminal
designs and of carrying the same into execution. Furthermore, it must be presumed that the object
of Article 48, in its entirety, is only one. We cannot assume that the purpose of the lawmaker, at
the beginning of the single sentence of which said article consists, was to favor the accused, and
that, before the sentence ended, the former had a change of heart and turned about face against the
latter. If the second part of Article 48 had been meant to be unfavorable to the accused and,
hence, the exact opposite of the first part each would have been placed in, separate provisions,
instead of in one single article. If the first part sought to impose, upon the culprit, a penalty less
grave than that which he would deserve if the two or more offenses resulting from his single act
were punished separately, then this, also, must be the purpose of the second part, in dealing with
an offense which is a necessary means for the commission of another.
The accuracy of this conclusion is borne out by the fact that, since 1850, when the counterpart of
our Article 48 was inserted in the Penal Code of Spain, or for over a century, it does not appear to
have been applied by the Supreme Court thereof to crimes of murder committed in furtherance of
an insurrection.
Incidentally, we cannot accept the explanation that crimes committed as a means necessary for the
success of a rebellion had to be prosecuted separately under the provisions of Article 259 of the
Penal Code of Spain, which is the counterpart of Article 244 of our old Penal Code. To begin with,
these articles are part of a substantive law. They do not govern the manner or method of
prosecution of the culprits. Then again, said precepts ordain that common crimes committed during
a rebellion or sedition, or on the occasion thereof, shall be respectively punished according to the
provisions of this Code. Among such provisions was Article 90 (later Article 71, then Article 75)
of the Spanish Penal Code, and Article 89 of our old Penal Code, of which Article 48 of the Revised
Penal Code of the Philippines is a substantial reproduction. Hence, had the Supreme Court of Spain
or the Philippines believed that murders committed as a means necessary to attain the aims of an
uprising were common crimes, the same would have been complexed with the rebellion or
sedition, as the case may be.
The cases of People vs. Cabrera (43 Phil., 64) and People vs. Cabrera (43 Phil., 82) have not
escaped our attention. Those cases involved members of the constabulary who rose publicly, for
the purpose of performing acts of hate and vengeance upon the police force of Manila, and in an
encounter with the latter, killed some members thereof. Charged with and convicted of sedition in
the first case, they were accused of murder in the second case. They pleaded double jeopardy in
the second case, upon the ground that the facts alleged in the information were those set forth in
the charge in the first case, in which they had been convicted. This plea was rejected upon the
ground that the organic law prohibited double jeopardy for the same offense, and that the offense
of sedition is distinct and different from that of murder, although both were the result of the same
act.
The question whether one offense was inherent in, or identified with, the other was not discussed
or even considered in said cases. Besides, the lower court applied, in the murder case Article 89 of
the old Penal Code which is the counterpart of Article 48 of the Revised Penal Code but this
Court refused to do so. Again, simply because one act may constitute two or more offenses, it does
not follow necessarily that a person may be prosecuted for one after conviction for the other,
without violating the injunction against double jeopardy. For instance, if a man fires a shotgun at
another, who suffers thereby several injuries, one of which produced his death, may he, after
conviction for murder or homicide, based upon said fatal injury, be accused or convicted, in a
separate case, for the non-fatal injuries sustained by the victim? Or may the former be convicted
of the complex crime of murder or homicide with serious and/or less serious physical injuries? The
mere formulation of these questions suffices to show that the limitation of the rule on double
jeopardy to a subsequent prosecution for the same offense does not constitute a license for the
separate prosecution of two offenses resulting from the same act, if one offense is an essential
element of the other. At any rate, as regards this phase of the issue, which was not touched in the
Cabrera cases, the rule therein laid down must necessarily be considered modified by our decision
in the cases of People vs. Labra (46 Off. Gaz., Supp. No. 1, p. 159) and Crisologo vs. People and
Villalobos (supra), insofar as inconsistent therewith.
The main argument in support of the theory seeking to complex rebellion with murder and other
offenses is that war within the purview of the laws on rebellion and sedition may be
waged or levied without killing. This premise does not warrant, however, the conclusion
drawn therefrom that any killing done in furtherance of a rebellion or sedition is independent
therefrom, and may be complexed therewith, upon the ground that destruction of human life is not
indispensable to the waging or levying of war. A person may kill another without inflicting
physical injuries upon the latter, such, for instance, as by poisoning, drowning, suffocation or
shock. Yet it is admitted that he who fatally stabs another cannot be convicted of homicide with
physical injuries. So too, it is undeniable that treason may be committed without torturing or
murdering anybody. Yet, it is well-settled that a citizen who gives aid and comfort to the enemy
by taking direct part in the maltreatment and assassination of his (citizens) countrymen, in
furtherance of the wishes of said enemy, is guilty of plain treason, not complexed with murder or
physical injuries, the later being as charged and proven mere ingredients of the former. Now
then, if homicide may be an ingredient of treason, why can it not be an ingredient of rebellion?
The proponents of the idea of rebellion complexed with homicide,. etc., have not even tried to
answer this question. Neither have they assailed the wisdom of our aforementioned decisions in
treason cases.
The Court is conscious of the keen interest displayed, and the considerable efforts exerted, by the
Executive Department in the apprehension and prosecution of those believed to be guilty of crimes
against public order, of the lives lost, and the time and money spent in connection therewith, as
well as of the possible implications or repercussions in the security of the State. The careful
consideration given to said policy of a coordinate and co-equal branch of the Government is
reflected in the time consumed, the extensive and intensive research work undertaken, and the
many meetings held by the members of the court for the purpose of elucidating on the question
under discussion and of settling the same.
The role of the judicial department under the Constitution is, however, clear to settle
justiceable controversies by the application of the law. And the latter must be enforced as it is
with all its flaws and defects, not affecting its validity not as the judges would have it. In other
words, the courts must apply the policy of the State as set forth in its laws, regardless of the wisdom
thereof.
It is evident to us that the policy of our statutes on rebellion is to consider all acts committed in
furtherance thereof as specified in Articles 134 and 135 of the Revised: Penal Code as
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constituting only one crime, punishable with one single penalty namely, that prescribed in said
Article 135. It is interesting to note, in this connection, that the penalties provided in our old Penal
Code (Articles 230 to 232) were much stiffer, namely: chanroblesvirtuallawlibrary

1. Life imprisonment to death for the promoters, maintainers and leaders of the rebellion, and,
also, for subordinate officers who held positions of authority, either civil or ecclesiastical, if the
purpose of the movement was to proclaim the independence of any portion of the Philippine
territory;
2. Reclusion temporal in its maximum period for said promoters, maintainers and leaders of
the insurrection, and for its subordinate officers, if the purpose of the rebellion was any of those
enumerated in Article 229, except that mentioned in the preceding paragraph;
3. Reclusion temporal: (a) for subordinate officers other than those already adverted to; and
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(b) for mere participants in the rebellion falling under the first paragraph of No. 2 of Article 174; chan

and
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4. Prision mayor in its medium period to reclusion temporal in its minimum period for
participants not falling under No. 3.
After the cession of the Philippines to the United States, the rigors of the old Penal Code were
tempered. Its aforementioned provisions were superseded by section 3 of Act No. 292, which
reduced the penalty to imprisonment for not more than ten (10) years and a fine not exceeding
$10,000, or P20,000, for every person who incites, sets on foot, assists or engages in any rebellion
or insurrection or who gives aid and comfort to any one so engaging in such rebellion or
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insurrection. Such liberal attitude was adhered to by the authors of the Revised Penal Code. The
penalties therein are substantially identical to those prescribed in Act 292. Although the Revised
Penal Code increased slightly the penalty of imprisonment for the promoters, maintainers and
leaders of the uprising, as well as for public officers joining the same, to a maximum not exceeding
twelve (12) years of prision mayor, it reduced the penalty of imprisonment for mere participants
to not more than eight (8) years of prision mayor, and eliminated the fine.
This benign mood of the Revised Penal Code becomes more significant when we bear in mind it
was approved on December 8, 1930 and became effective on January 1, 1932. At that time the
communists in the Philippines had already given ample proof of their widespread activities and of
their designs and potentialities. Prior thereto, they had been under surveillance by the agents of the
law, who gathered evidence of their subversive movements, culminating in the prosecution of
Evangelista, Manahan (57 Phil., 354; 57 Phil., 372), Capadocia (57 Phil., 364), Feleo (57 Phil.,
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451), Nabong (57 Phil., 455), and others. In fact, the first information against the first two alleged
that they committed the crime of inciting to sedition on and during the month of November, 1930,
and for sometime prior and subsequent thereto.
As if this were not enough, the very Constitution adopted in 1935, incorporated a formal and
solemn declaration (Article II, section 5) committing the Commonwealth, and, then the Republic
of the Philippines, to the promotion of social justice. Soon later, Commonwealth Act No. 103,
creating the Court of Industrial Relations, was passed. Then followed a number of other statutes
implementing said constitutional mandate. It is not necessary to go into the details of said
legislative enactments. Suffice it to say that the same are predicated upon a recognition of the fact
that a good many of the problems confronting the State are due to social and economic evils, and
that, unless the latter are removed or, least minimized, the former will keep on harassing the
community and affecting the well-being of its members.
Thus, the settled policy of our laws on rebellion, since the beginning of the century, has been one
of decided leniency, in comparison with the laws enforce during the Spanish regime. Such policy
has not suffered the slightest alteration. Although the Government has, for the past five or six
years, adopted a more vigorous course of action in the apprehension of violators of said law and
in their prosecution the established policy of the State, as regards the punishment of the culprits
has remained unchanged since 1932. It is not for us to consider the merits and demerits of such
policy. This falls within the province of the policy-making branch of the government the Congress
of the Philippines. However, the following quotation from Cuello Calon indicates the schools of
thought on this subject and the reason that may have influenced our lawmakers in making their
choice:chanroblesvirtuallawlibrary

Durante muchos siglos, hasta tiempos relativamente cercanos, se reputaban los hechos que hoy
llamamos delitos politicos como mas graves y peligrosos que los crimenes comunes. Se
consideraba que mientras estos solo causan un dao individual, aquellos producen profundas
perturbaciones en la vida collectiva llegando a poner en peligro la misma vida del Estado. En
consonancia con estas ideas fueron reprimidos con extraordinaria severidad y designados con la
denominacion romana de delitos de lesa majestad se catalogaron en las leyes penales como los
crimenes mas temibles.
Pero desde hace poco mas de un siglo se ha realizado en este punto una transformacion profunda
merced a la cual la delincuencia politica dejo de apreciarse con los severos criterios de antao
quedando sometida a un regimen penal, por regla general suave y benevolo.
El origen de este cambio se remonta, segun opinion muy difundida, a la revolucion que tuvo lugar
en Francia en el ao 1830. El gobierno de Luis Felipe establecio una honda separacion entre los
delitos comunes y los politicos, siendo estos sometidos a una penalidad mas suave y sus autores
exceptuados de la extradicion. Irradiando a otros paises tuvieron estas tan gran difusion que en
casi todos los de regimen liberal-individualista se ha llegado a crear un tratamiento desprovisto de
severidad para la represion de estos hechos. No solo las penas con que se conminaron perdieron
gran parte de su antigua dureza, sino qua en algunos paises se creo un regimen penal mas suave
para estos delicuentes, en otros se abolio para ellos la pena de muerte. Tan profundo contraste entre
el antiguo y el actual tratamiento de la criminalidad politica en la mayoria de los paises solo puede
ser explicado por las ideas nacidas y difundidas bajo los regimenes politicos liberalesacerca de
estos delitos y delincuentes. Por una parte se ha afirmado que la criminalidad da estos hechos no
contiene la misma inmoralidad que la delincuencia comun, que es tan solo relativa, qua depende
del tiempo, del lugar, da las circumstancias, de las instituciones del pais. Otros invocan la elevacion
de los moviles y sentimientos determinantes de estos hechos, el amor a la patria, la adhesion
ferviente a determinadas ideas o principios, el espiritu de sacrificio por el triunfo de un ideal.
Contra su trato benevolo, del que no pocas veces se han beneficiado peligrosos malhechores, se
ha iniciado hace algun tiempo una fuerte reaccion (vease Cap. XV, 3., b), que llego a alcanzar
considerable severidad en las legislaciones de tipo autoritario, y que tambien ha hallado eco, en
forma mas suave, en las de otros paises de constitucion democratica en los que, especialmente en
los ultimos aos, la frecuencia de agitaciones politicas y sociales ha originado la publicacion de
numerosas leyes encaminadas a la proteccion penal del Estado. (Cuello Calon, Derecho Penal,
Tomo 1, pp. 250-252.)
Such evils as may result from the failure of the policy of the law punishing the offense to dovetail
with the policy of the law enforcing agencies in the apprehension and prosecution of the offenders
are matters which may be brought to the attention of the departments concerned. The judicial
branch cannot amend the former in order to suit the latter. The Court cannot indulge in judicial
legislation without violating the principle of separation of powers, and, hence, undermining the
foundation of our republican system. In, short, we cannot accept the theory of the prosecution
without causing much bigger harm than that which would allegedly result from the adoption of the
opposite view.
In conclusion, we hold that, under the allegations of the amended information against Defendant-
Appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by said Defendants, as means
necessary 4 for the perpetration of said offense of rebellion; that the crime charged in the
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aforementioned amended information is, therefore, simple rebellion, not the complex crime of
rebellion with multiple murder, arsons and robberies; that the maximum penalty imposable
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under such charge cannot exceed twelve (12) years of prision mayor and a fine of P20,000; and chan roblesvirtualawlibrary

that, in conformity with the policy of this court in dealing with accused persons amenable to a
similar punishment, said Defendant may be allowed bail.
It is urged that, in the exercise of its discretion, the Court should deny the motion under
consideration, because the security of the State so requires, and because the judgment of conviction
appealed from indicates that the evidence of guilt of Amado V. Hernandez is strong. However, as
held in a resolution of this court, dated January 29, 1953, in the case of Montano vs. Ocampo (G.R.
L-6352): chanroblesvirtuallawlibrary

to deny bail it is not enough that the evidence of guilt is strong; it must also appear that in
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case of conviction the Defendants criminal liability would probably call for a capital punishment.
No clear or conclusive showing before this Court has been made.
In fact, in the case at bar, Defendant Amado V. Hernandez was sentenced by the lower court, not
to the extreme penalty, but to life imprisonment. Furthermore, individual freedom is too basic, too
transcendental and vital in a republican state, like ours, to be denied upon mere general principles
and abstract consideration of public safety. Indeed, the preservation of liberty is such a major
preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very
first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said
section (1) to the protection of several aspects of freedom. Thus, in line with the letter and spirit
of the fundamental law, we said in the aforementioned case of Montano vs. Ocampo: chanroblesvirtuallawlibrary

Exclusion from bail in capital offenses being an exception to the otherwise absolute right
guaranteed by the constitution, the natural tendency of the courts has been toward a fair and liberal
appreciation, rather than otherwise, of the evidence in the determination of the degree of proof and
presumption of guilt necessary to warrant a deprivation of that right.
xxx xxx xxx
In the evaluation of the evidence the probability of flight is one other important factor to be taken
into account. The sole purpose of confining accused in jail before conviction, it has been observed,
is to secure his presence at the trial. In other words, if denial of bail is authorized in capital cases,
it is only on the theory that the proof being strong, the Defendant would flee, if he has the
opportunity, rather than face the verdict of the jury. Hence, the exception to the fundamental right
to be bailed should be applied in direct ratio to the extent of the probability of evasion of
prosecution.
The possibility of escape in this case, bearing in mind the Defendants official and social standing
and his other personal circumstances, seem remote if not nil.
This view applies fully to Amado V. Hernandez, with the particularity that there is an additional
circumstance in his favor he has been detained since January 1951, or for more than five (5)
years, and it may still take some time to dispose of the case, for the same has not been, and is not
in a position to be, included, as yet, in our calendar, inasmuch as the briefs for some Appellants
other than Hernandez as well as the brief for the Government, are pending submission. It should
be noted, also, that the decision appealed from the opposition to the motion in question do not
reveal satisfactorily and concrete, positive act of the accused showing, sufficiently, that his
provincial release, during the pendency of the appeal, would jeopardize the security of the State.
Wherefore, the aforementioned motion for bail of Defendant- Appellant Amado V. Hernandez is
hereby granted and, upon the filing of a bond, with sufficient sureties, in the sum of P30,000, and
its approval by the court, let said Defendant-Appellant be provisionally released. It is SO
ORDERED.
Paras, C.J., Reyes, A., Bautista Angelo and Reyes. J.B.L., JJ., concur.
Bengzon, J., concurs in the result.

Separate Opinions
PADILLA, J., dissenting: chanroblesvirtualla wlibrary

Amado V. Hernandez and others were charged in the Court of First Instance of Manila with the
crime of rebellion with multiple murder, arsons and robberies. The body of the information
charged that he and his co-Defendants conspired and that as a necessary means to commit the
crime of rebellion, in connection therewith and in furtherance thereof, have then and there
committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and
public property to create and spread chaos, disorder, terror, and fear so as to facilitate the
accomplishment of the aforesaid purpose, and recited the different crimes committed by the
Defendants. After trial Amado V. Hernandez was found guilty and sentenced to suffer life
imprisonment from which judgment and sentence he appealed. The appeal is pending in this Court.
Upon the ground that there is no complex crime of rebellion with murder, the penalty provided for
to be imposed upon persons found guilty of rebellion being prision mayor and a fine not to exceed
P20,000 only, 1 the majority grants the petition for bail filed by the Appellant.
Section 1, paragraph 16, Article III, of the Constitution provides: chanroblesvirtuallawlibrary

All persons shall before conviction be bailable by sufficient sureties, except those charged with
capital offenses when evidence of guilt is strong. Excessive bail shall not be required. (Italics
supplied.)
The pertinent sections of Rule 110 provide: chanroblesvirtuallawlibrary

SEC. 3. Offenses less than capital before conviction by the Court of First Instance. After
judgment by a justice of the peace and before conviction by the Court of First Instance, the
Defendant shall be admitted to bail as of right.
SEC. 4. Noncapital offenses after conviction by the Court of First Instance. After conviction
by the Court of First Instance Defendant may, upon application, be bailed at the discretion of the
court.
SEC. 5. Capital offenses defined. A capital offense, as the term is used in this rule, is an offense
which, under the law existing at the time of its commission, and at the time of the application to
be admitted to bail, may be punished by death.
SEC. 6. Capital offenses not bailable. No person in custody for the commission of a capital
offense shall be admitted to bail if the evidence of his guilt is strong.
SEC. 7. Capital offenses - burden of proof. On the hearing of an application for admission to
bail made by any person who is in custody for the commission of a capital offense, the burden of
showing that evidence of guilt is strong is on the prosecution.
SEC. 13. Bail on appeal. Bail upon appeal must conform in all respects as provided for in other
cases of bail.
According to this Rule, a Defendant in a criminal case after a judgment of conviction by the Justice
of the Peace Court and before conviction by the Court of First Instance is entitled to bail. After
conviction by the Court of First Instance he, upon application, may still be bailed in non-capital
offenses but at the discretion of the court. When the information charges a capital offense the
Defendant is not entitled to bail if the evidence of his guilt is strong. Of course this means before
conviction. After conviction for a capital offense, the Defendant has absolutely no right to bail,
because even before conviction a Defendant charged with capital offense is not entitled to bail if
the evidence of guilt is strong. So that should a Defendant charged with a capital offense apply for
bail before conviction, the prosecution must establish and show that the evidence of the
Defendants guilt is strong if the application for bail be objected to. After conviction of a Defendant
charged with a capital offense there is no stronger evidence of his guilt than the judgment rendered
by the trial court. The judgment is entitled to full faith and credit. Until after the evidence shall
have been reviewed and the reviewing court shall have found that the trial court committed error
in convicting the Defendant of the crime charged, the judgment and sentence of the trial court in
such criminal case must be taken at its face value and be given full faith and credit by this Court.
Without a review of the evidence presented in the case, the majority has taken up and discussed
the question whether, under and pursuant to the provisions of article 135 of the Revised Penal
Code, the complex crime of rebellion with murder may arise or exist or be committed and has
reached the conclusion that murder as an incident to rebellion, is integrated, imbibed, incorporated,
or absorbed in, or part and parcel of, the last mentioned crime. For that reason it is of the opinion
that, as the information filed against Amado V. Hernandez does not charge a capital offense, he
may be admitted to bail at the discretion of the Court.
Even if the majority opinion that the crime charged in the information is rebellion only a non-
capital offense be correct, still the granting of bail after conviction is discretionary, and I see
no plausible reason for the reversal of this Courts previous stand, because the security of the State
is at stake.
For these reasons I dissent.

MONTEMAYOR, J., dissenting: chanroblesvirtuallawlibra ry

Unable to agree to the resolution of the majority, I am constrained to dissent therefrom, not so
much from the part thereof granting the motion for bail, as where it holds not only that there can
be no complex crime of rebellion with multiple murder, robbery, arson, etc., but that these crimes
when committed during and on the occasion of a rebellion, are absorbed by the latter. The new
doctrine now being laid down besides being, to my mind, quite radical and in open and clear
contravention of public policy, is fundamental and of far-reaching consequences, and I feel it my
duty not only to voice my dissent but also to state the reasons in support thereof.
The resolution cites and quotes Article 135 of the Revised Penal Code to support its theory that
the five acts enumerated therein particularly those of engaging in war against the forces of the
government, destroying property and committing serious violence, cover all the murders,
robberies, arsons, etc., committed on the occasion of or during a rebellion; and it proceeds to
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assert that the expressions used in said article, such as engaging in war against the forces of the
government and committing serious violence imply everything that war connotes such as physical
injuries and loss of life. In this connection, it is of profit and even necessary to refer to Article 134
of the Revised Penal Code defining and describing how the crime of rebellion is committed.
Art. 134. Rebellion or insurrection How committed. The crime of rebellion or insurrection
is committed by rising publicly and taking arms against the Government for the purpose of
removing from the allegiance to said Government or its laws, the territory of the Philippine Islands
or any part thereof, of any body of land, naval or other armed forces, or of depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
According to the above article, rebellion is committed by rising publicly and taking arms against
the government for the purpose or purposes enumerated in said article. In other words, the
commission of rebellion is complete and consummated if a group of persons for the purposes
enumerated in the article, rise publicly, take up arms and assemble. It is not necessary for its
consummation that anybody be injured or killed, be it a government soldier or civilian, or that
innocent persons be forcibly deprived of their properties by means of robbery or that their stores
and houses be looted and then burned to the ground. Stated differently, murders, robberies, arsons,
etc., are not necessary or indispensable in the commission of rebellion and, consequently, are not
ingredients or elements of the latter.
Article 48 of the Revised Penal Code providing for Penalty for complex crimes reads thus: chanroblesvirtuallawlibrary

ART. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary means for committing the other, the penalty for
the most serious crime shall be imposed, the same to be applied in its maximum period. (As
amended by Act No. 4000.)
For better understanding, I deem it advisable to ascertain and explain the meaning of the phrase
necessary means used in Article 48. Necessary means as interpreted by criminologists, jurists
and legal commentators, does not mean indispensable means, because if it did, then the offense as
a necessary means to commit another would be an indispensable element of the latter and would
be an ingredient thereof. That would be true in the offense of trespass to dwelling to commit
robbery in an inhabited house, or the infliction of physical injuries to commit homicide or murder.
The phrase necessary means used in Article 48, merely signifies that for instance, a crime such
as simple estafa can be and ordinarily is committed in the manner defined and described in the
Penal Code; but, if the estafador resorts to or employs falsification, merely to facilitate and
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insure his committing the estafa, then he is guilty of the complex crime of estafa thru falsification.
So, if one desiring to rape a certain woman, instead of waiting for an opportunity where she could
be alone or helpless, in the fields or some isolated place, abducts her by force and takes her to a
forest to ravish her; or he enters her home through a window at night and rapes her in her room,
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then he is guilty of the complex crime of abduction with rape or rape with trespass to dwelling.
The reason is that the commission of abduction of trespass to dwelling are not indispensable means
or ingredients of the crime of rape. They are but means selected by the culprit to facilitate and
carry out perhaps more quickly his evil designs on his victim. Says the eminent Spanish
commentator, Groizard, on this point: chanroblesvirtuallawlibrary

Una cosa analoga acontece respecto de los delitos conexionados con una relacion de medio a fin.
Tambien en ellos la unidad de acto moral, que da vida al delito, hace logica la imposicion de una
sola pena. Preciso es, sin embargo, distinguir el caso en que el delito medio sea medio necesario
de realizar el delito fin, del caso en que sea puramente medio, pero no medio indispensable. En
aquel, el delito medio no es, en realidad, sino una condicion precisa, una circumstancia sine qua
non, un elemento integral de la accion punible concebida como fin. Sin pasar por uno, seria
imposible llegar al otro. La voluntad, libre e inteligente, tiene entonces por unico objeto llegar al
delito fin. Si al recorrer su camino ha de pasar, indispensablemante, por la comision de otro hecho
punible, no dos, sino un delito habra que castigar, toda ves que uno fue el mal libremente querido,
no siendolo el otro por si, sino en tanto que era necesario para obtener, la realizacion del mal
proposito concebido.
xxx xxx xxx
Asi, hay que reconocer que es plausible que, cuando un delito es medio de realizar otro, se
imponga al culpable la pena correspondiente al mayor en su grado maximo; pero que no los es
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si resulta que ha sido medio necesario. Por lo contrario, para que sea justo el aumento de pena, con
arreglo a la doctrina general acerca del delito y las circunstancia agravantes, es preciso que existan
y no se aprovechen otros procedimientos, otros recursos, mas o menos faciles para consumar el
delito. Entonces la responsibilidad se hace mayor eligiendo un medio que sea un delito en si. El
que puede, haciendo uso de su libertad y de su inteligencia, escoger entre varios procedimientos
para llegar a un fin, y se decide por uno que por si solo constituye delito, de este delito no
necessario para la realizacion del proyectado como fin, debe responder tambien.
xxx xxx xxx
Ejemplo: el allanamiento de domicilio como medio de llegar al delito de violacion. No es
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condicion necesaria, para que la violacion pueda realizarse, el entrar en la morada ajena contra la
voluntad de su dueo. Sin esa circunstancia, el delito puede existir. Ahora bien; si el criminal chan roblesvir tualawlibrary

acepta como medio de llegar a la violacion el allanamiento de domicilio, este delito y el de


violacion deben ser castigados observandose en la aplicacion del castigo una unidad de penalidad
que guarde cierta analogia con la unidad de pensamiento que llevo en culpable a la ralizacion de
ambos delitos. Para estos y analogos casos, la razon aprueba la imposicion de la mas grave de las
penas en su grado maximo. (Groizard, El Codigo Penal de 1870, Tomo II, pp. 495-496.)
Applying the above observations to the crime of rebellion as defined in Article 134, the same may
be committed by merely rising publicly and taking arms against the government, such as was done
on several occasions as alleged in the information for rebellion in the present case where a group
of Hukbalahaps, entered towns, overpowered the guards at the Presidencia confiscated firearms
and the contents of the municipal treasurers safe, exacted contributions in the form of money,
food-stuffs and clothing from the residents and maintained virtual control of the town for a few
hours. That is simple but consummated rebellion. Murder, robbery, arson, etc., are not necessary
or indispensable to consummate the crime of rebellion.
But in other cases, this group or other groups of dissidents in order to facilitate achieving their
objective to overthrow the government, according to the findings of the trial courts in several cases
of rebellion, resorted to looting and robberies to raise funds to finance their movement, sometimes
killing civilians who refused to contribute or to be recruited to augment the forces of the rebels or
who were suspected of giving information to the government forces of the movements of the
dissidents. Sometimes, homes of town and barrio residents are set on fire and burned to the ground
in reprisal or in order to strike terror into the hearts of the inhabitants, so that they would be more
amenable to the rule and the demands of the rebels. At other times, civilians were kidnapped for
purposes of ransom, and some hostages killed when the ransom was not paid or was not
forthcoming. In the raid on Camp Macabulos in Tarlac, besides shooting down soldiers and
officers, buildings were set on fire, inducing the hospital, as a result of which, patients including a
Red Cross nurse were killed. In another case, a passenger bus containing about forty civilian
passengers in Sta. Cruz, Zambales, was held up by these armed dissidents; the passengers were chan roblesvirtualawlibrary

robbed of their money and jewelry and fourteen of them were shot to death. The party of Mrs.
Aurora Quezon while on its way to the town of Baler, was ambushed in Bongabong, Nueva Ecija
by the dissidents and several members of the party, including herself, her daughter, her son-in-law,
Mayor Bernardo of Quezon City, and others were killed, and their persons despoiled of jewelries
and belongings. It is clear that all these acts of murder, vandalism, banditry and pillage cannot be
regarded as ingredients and indispensable elements of the crime of rebellion. The aforecited acts
and cases, the enumeration of which is far from complete, are not based on mere suspicion or
hearsay. They are alleged as facts in the numerous counts contained in complaints or informations
for rebellion with multiple murder, robbery, arson, kidnapping, etc. in several separate cases in the
Courts of First Instance, some still pending trial-but quite a number already decided and now
pending appeal before us. There must be much truth to these charges and counts because in the
case against Huk Supremo Luis Taruc, William Pomeroy et al., (criminal case No. 19166 C.F.I.,
Manila) Pomeroy pleaded guilty to all the thirty counts against him; so did Taruc after seven
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counts had been eliminated from the thirty contained in the information. Among the twenty three
counts remaining to which Taruc pleaded guilty were the holding up of forty civilians in a
passenger bus in Sta. Cruz, Zambales, and the night raid on Camp Macabulos where hospital
patients and a Red Cross nurse were killed.
Since the above mentioned crimes of multiple murder, robbery, kidnapping, etc., are not
ingredients of rebellion nor indispensable to its commission but only means selected and employed
by the offenders to commit rebellion and achieve their goal, a complex crime is committed under
Article 48 of the Revised Penal Code.
Going back to the theory of the majority in the resolution that the phrase engaging in war and
committing serious violence used in Article 134, covers the crimes of murder, robbery, arson, etc.,
committed during a rebellion, I emphatically disagree. Engaging in war and levying war, against
the government, are general terms employed in the United States statutes to define rebellion and
treason. They are used interchangeably and have the same meaning in our law on rebellion and
treason, (Articles 114, 134, 135, Revised Penal Code) which are based on Act 292 of American
origin. They do not necessarily mean actual killing of government troops, much less of innocent
civilians.
Levying War. The assembling of a body of men for the purpose of effecting by force a
treasonable object; and all who perform any part, however, minute, or however remote from the
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scene of action, and who are leagued in the general conspiracy, are considered as engaged in
levying war, within the meaning of the constitution. (Bouviers Law Dictionary, Vol. 2, p. 1938.)
This Tribunal defines levying war in the case of U.S. vs. Lagnason, 3 Phil., 478-9, thus: chanroblesvirtuallawlibrary

Whatever differences there may have been among the early judges as to whether an armed
resistance to the enforcement of a public law (see Act No. 292, section 5, 1) constituted a levying
of war or not, and war or was not treason, yet they were all unanimous in holding that acts of
violence committed by an armed body of men with the purpose of overthrowing the Government
was levying war against the United States, and was therefore treason, whether it was done by
ten men or ten thousand. (See United States vs. Hanway, 2 Wall., jr., 139; 26 Fed. Cases, 105.)
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xxx xxx xxx


As the act of engaging in a rebellion is levying war, and therefore treason, the same act seems to
be punished by both sections and in different ways. (U. S. vs. Lagnason, 3 Phil., 48-9.)
Just as a citizen can commit treason by adhering to the enemy and committing treasonable overt
acts such as pointing out and helping arrest guerrillas, accompanying enemy soldiers on patrol and
giving valuable information to the enemy, without himself killing anyone of his countrymen, this
although Article 114 uses the phrase levying war to define-treason, so, although Article 135 uses
the phrase engaging in war, a group of individuals may also commit rebellion by merely rising
publicly and taking arms against the government without firing a single shot or inflicting a single
wound.
But the majority says that serious violence mentioned in Article 134 may include murder. To me,
this view is untenable. From serious violence to the capital offense of murder, certainly, is a far
cry. Besides, serious violence can also be on things. In my opinion, the different acts mentioned
in Article 135, among them, destroying property, committing serious violence, exacting
contributions or diverting public funds, instead of giving license and unlimited leave to rebels and
dissidents to engage in mass murder, looting and wholesale destruction of property, on the
contrary, serve to limit and restrict the violations of law that may be included in and absorbed by
rebellion. Article 135 mentions those acts which generally accompany a public armed uprising.
When rebels raid a town or barrio, manhandling of civilians who obstruct their movements or fail
to carry out their orders such as to lend their carabaos and carts for transportation purposes, or to
contribute food, clothes, medicines, money etc., may be expected. The rebels may employ force
to disarm the policeman guarding the Presidencia and if he offers resistance beat him up or, once
inside, break down the door of the treasurers office, blow up his safe and carry away the money
contents thereof. All these acts involve violence, even serious violence on persons and things,
including diversion of public funds. But knowing that these law violations, relatively not serious,
are generally unavoidable in public armed uprisings involving hastily assembled persons and
groups with little discipline the law tolerates them, considering them as part of the rebellion. But
when rebels rob innocent civilians, kidnap them for purposes of ransom, even kill them merely
because they fail to pay the ransom, and civilian houses are put to the torch, endangering the lives
of the inmates; when civilians are killed for refusing to contribute, or on mere suspicion of their
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giving information to the government, I cannot believe that these brutal act are condoned by the
law and are to be included in the crime of rebellion.
The majority leans heavily on our decisions in several treason cases wherein we refused or failed
to convict of the complex crime of treason with multiple murder. To me, those cases are neither
controlling nor applicable for several reasons. Almost invariably, indictment in those treason cases
alleged the killings committed by the indictees as ingredients and elements of treason. They are
mentioned as the overt acts to establish and prove treason. Naturally, the court held that being
ingredients of the crime of treason they cannot be considered as distinct and separate offenses for
the purpose of applying Article 48 of the Revised Penal Code. Another reason is that, treason being
a capital offense, this court did not see any immediate necessity for considering and applying the
theory of complex crime because the result would in many cases be practically the same. In other
words, treason might yet be said to absorb the crime of homicide, even of murder, because as
regards the penalty, they are of the same category. Still another reason, not an unimportant one is
that at that time, opinion among the members of this Tribunal on the question of complex crime
of treason with homicide, sedition with murder and rebellion with murder, arson, robbery, etc.,
had not yet crystalized, one way or the other. So, we preferred to avoid ruling on the issue, specially
since by considering the commission of murder, robbery, etc., in treason as aggravating the crime,
we would achieve the same result as regards the penalty to be imposed.
But in the case of People vs. Perfecto Labra, G.R. No. 1240, May 12, 1949, this court through Mr.
Justice Bengzon, accepted the view of the Solicitor General that under Article 48 of the Revised
Penal Code, Labra was guilty of the complex crime of treason with murder, as shown by the
dispositive part of our decision in that case, which is quoted below: chanroblesvirtuallawlibrary

Wherefore, the verdict of guilt must be affirmed. Article 48, 114 and 248 of the Revised Penal
Code are applicable to the offense of treason with murder. However, for lack of sufficient votes to
impose the extreme penalty, the Appellant will be sentenced to life imprisonment.
The only reason why the death penalty was not imposed in said case was because of lack of
sufficient votes but evidently, the Justices were agreed as to the application of Article 48 of the
Penal Code regarding complex crimes.
Then in the treason case of People vs. Barrameda, 85 Phil., 789, 47 Off. Gaz., 5082, on the strength
of our decision in the case of Labra, the Solicitor General recommended that Barrameda be also
convicted of the complex crime of treason with multiple murder and sentenced to death. This
Tribunal accepted the Solicitor Generals recommendation and imposed the death penalty in the
following language: chanroblesvirtua llawlibrary

We entertain not the least doubt as to the guilt of the Appellant. His very counsel de oficio who
made an analysis of the testimonies of the witnesses for the prosecution and painstakingly stated
them in detail in his brief, agrees that his client is guilty although he prays that the sentence of life
imprisonment be affirmed. The Solicitor General, however, recommends that the penalty of death
be imposed upon the Appellant. Considering that the treason committed by the Appellant was
accompanied not only by the apprehension of Americans (U. S. citizens) and their delivery to the
Japanese forces which evidently later executed them, but also by killing with his own hands not
only one but several Filipinos, his own countrymen, and that in addition to this, he took part in the
mass killing and slaughter of many other Filipinos, we are constrained to agree to said
recommendation. However, unpleasant, even painful is the compliance with our duty, we hereby
impose upon the Appellant Teodoro Barrameda the penalty of death which will be carried out on
a day to be fixed by the trial court within thirty (30) days after the return of the record of the case
to said court.
With the two aforecited cases, it may not be said that the Supreme Court has always held that there
can be no complex crime of treason with murder.
The theory of the majority is that the crime of rebellion with the maximum penalty of twelve years
and fine, absorbs the other crimes of murder, robbery, arson, kidnapping, etc., as long as the latter
are committed in the course and in furtherance of the former. The idea of one crime absorbing a
more serious one with a more severe penalty does not readily appeal to the reasonable and logical
mind which can only comprehend a thing absorbing another smaller or less than itself in volume,
in importance, in value or in category. That is why Judge Montesa in the three cases, People vs.
Hernandez, People vs. Espiritu, and People vs. Medina, criminal cases Nos. 15481, 15479 and
1411 respectively, of the Court of First Instance, Manila, in his decision convicting the accused
therein, in disposing of the theory of absorption, urged upon him by counsel for the defense to the
effect that the crime of rebellion absorbs the crime of murder, robbery, arson, etc., made the
following observations: chanroblesvirtuallawlibrary

The theory of absorption tenaciously adhered to by the defense to the effect that rebellion absorbs
all these more serious offenses is preposterous to say the least, considering that it is both physically
and metaphysically imposible for a smaller unit or entity to absorb a bigger one. (Montesa, J.,
People vs. Hernandez G.R. No. 15481, P. 78.)
We need not go into an academic discussion of this question because as a matter of law, my
opinion, criminal jurisprudence, expounding the criminal law namely the Penal Code and the Penal
Code of Spain, on which it is based, expressly and clearly declare that the common crimes of
murder, robbery, arson, etc., committed in the course or by reason of rebellion, are separate crimes,
not to be merged in or absorbed by rebellion and should be prosecuted separately. Article 259 of
the Penal Code of Spain, of 1870 on which our Penal Code promulgated in 1887, was based,
provides as follow: chanroblesvirtuallawlibrary

Los delitos particulares cometidos en una rebellion o sedicion o con motivo de ellas, seran
castigados respectivamente, segun las disposiciones de este Codigo.
Cuando no puedan descubrirse sus autores, seran penados como tales los jefes principales de la
rebelion o sedicion. (Groiazrd, El Codigo Penal de 1870, Tomo III, Articulo 259, p. 649.)
In commenting on Article 259 of the Spanish Penal Code, Viada says: chanroblesv irtuallawlibrary

La disposicion del primer parrafo de este articulo no puede ser mas justa; con arreglo a ella, chan roblesvirtualawlibrary

los delitos particulares o comunes cometidos en una rebellion o sedicion no deberan reputarse
como accidentes inherentes a estas, sino como delitos especiales a dicha rebellion y sedicion
ajenos, los que deberan ser respectivamente castigados con als penas que en este Codigo se les
sealan. Pero que delitos deberan considerarse como comunes, y cuales como constitutivos de la
propia rebelion o sedicion? En cuanto a la rebelion, no ofrece este cuestion dificultad alguna, pues
todo hecho que no este comprendido en uno u otro de los objetos especificados en los seis numeros
del Articulo 243 sera extrao a la rebelion, y si se este debera ser castigado como delito
particular. (Viada, Codigo Penal, Tomo II, 198-199.)
Pea, another commentator, referring to Article 259 of the Spanish Penal Gode, has the following
to say:chanroblesvir tuallawlibrary

La disposicion de este articulo es sobradamente justa, pero cuando se entendera que el hecho es
independiente de la insurgencia? Tratandose de la rebelion no hay problema, pues todos los fines
que se indican en el Articulo 214 se distinguen facilmente de un asesinato, un robo, una violacion,
etc. El problema puede surgir con la sedicion, en cuyos tres ultimos numeros, dice un autor, se
tipifican conductas que muy bien pueden ser subsimidas en otros lugares del Codigo. El T.S. parece
que sigue este principio general: las infracciones graves se consideran como delitos
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independientes, en cambio los hechos de menor gravedad puedan ser considerados como
accidentes de la rebelion. En este sentido, el T.S. ha declarado que son accidentes de la rebelion,
los desacatos y lesiones a la autoridad y otros delitos contra el orden publico, asi como la
resistencia o acometiendo a la fuerza publica (23 Mayo 1890). El abuso de superioridad tambien
es inherente el alzamiento tumultuario (19 noviembre 1906.) (Pea Deredes Penal, Tomo II pp.
89-90.)
Another commentator, A. Quintano Ripolles, says of Article 259 of the Spanish Penal Code,
counterpart of Article 244 of our old Penal Code: chanroblesvirtuallawlibrary

La concurrencia de delitos consignada en este articulo no puede ser mas justa, bien que la
dificultad persista siempre para determinar cuales han de ser los particulares accidentales y cuales
los integrantes de la propia subversion. Una doctrina demasiado simplista, que ha sido a menudo
seguida por la Jurisprudencia, es la de estimar que, absorbiendo el delito mas grave al que lo es
menos, todo el que por debajo del de rebelion o sedicion sera anulado por este. Para los del la
misma naturaleza, la cosa es incuestionable, pero no para los que la tengan diversa, entendiendo
por la estraa e imprecisa expresion de (particulares) a las infracciones comunes o no politicas.
(A. Quintano Ripolles, Comentarios al Codigo Penal Vol. II, pp. 101-102; cursivas con chan roblesvirtualawlibrary

neustras.)
Another distinguished legal commentator gives his view on the same Article 259: chanroblesvirtuallawlibrary

Se establece aqui que en una rebelion o sedicion, o con motivo de ellas, comente otros delitos (v.
g., roba, mata o lesiona), sera responsable de estos ademas de los delitos de rebelion o sedicion.
La dificultad consiste en estos casos en separar los accidentes de la rebelion o sedicion de los
delitos independientes de estas, y como las leyes no contienen en este punto precepto alguno
aplicable, su solucion ha quedado encomendada a los tribunales. La jurisprudencia que estos han
sentado considera como accidentes de la rebelion o sedicion cuya criminalidad queda embebida
en la de estos delitos, y, por tanto, no son punibles especialmente los hechos de escasa gravedad
(v: g., atentados, desacatos, lesiones menos graves); por el contrario, las infracciones graves,
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como el asesinato o las lesiones graves, se consideran como delitos independientes de la rebelion
o del la sedicion. (Cuello Calon, Vol. 2 Derecho Penal p. 110.)
Finally, Groizard, another eminent commentator of the Penal code of Spain, in commenting on the
same Article 259 of the Spanish Penal Code of 1870, says the following: chanroblesv irtuallawlibrary

No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera escrito en el


Codigo, harian los Tribunales lo que dice. Seria necesario para que asi no sucediera el que fuera
la rebelion un motivo de exencion de responsabilidad criminal para las demas clases de delitos.
(Groizard Tomo 3, 650.)
It will be seen that Spanish jurists and legal commentators are, with reference to Article 259 of the
Spanish Penal Code of 1870, unanimous in the opinion that this provision of the Criminal Law is
just and fair because one should not take advantage of his committing the crime of rebellion by
committing other more serious crime such as murder, robbery, arson, etc., with impunity. The
above much commented Article 259 of the Spanish Penal Code has its counterpart in Article 244
of our old Penal Code in practically the same wording and phraseology: chanroblesvirtuallawlibrary

ART. 24. All other crimes committed in the course of a rebellion of seditious movement, or on
occasion thereof, shall be punished in accordance with the rules of this Code.
If the perpetrators of such crimes cannot be discovered, the principal leaders of the rebellion or
sedition shall be punished therefore as principals.
In this jurisdiction, we have faithfully observed and applied this penal provision. In the cases of
U. S. vs. Cabrera, et al., 43 Phil., page 64 and page 82 for sedition and multiple murder
respectively, wherein members of the Philippine constabulary attacked and killed several
policemen in the City of Manila, this Court convicted said soldiers, first, of sedition and later, of
multiple murder, clear proof that the murders committed in the course of and by reason of the
sedition were not included in and absorbed by sedition, this despite the fact that our law on sedition
then, section 5 of Act No. 292, uses the words rise publicly and tumultuously, in order to attain
by force or outside of legal methods any of the following objects are guilty of sedition. In the
multiple murder case, the sergeants and corporals of the constabulary, who took part in the killing
of the city policemen, were sentenced to death. This court in that case said: chanrobles virtuallawlibrary

It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is
a crime against public order; murder is a crime against persons. Sedition is a crime directed
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against the existence of the State, the authority of the government, and the general public
tranquility; murder is a crime directed against the lives of individuals. (U. S. vs. Abad (1902) 1
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Phil. 437.) Sedition in its more general sense is the raising of commotions or disturbances in the
state; murder at common law is where a person of sound mind and discretion unlawfully kills
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any human being, in the peace of the sovereign, with malice aforethought, express or implied.
The offenses charged in the two informations for sedition and murder are perfectly distinct in
point of law, however, nearly they may be connected in point of fact. Not alone are the offenses
eo nomine different, but the allegations in the body of the informations are different. The gist of
the information for sedition is the public and tumultuous uprising of the constabulary in order to
attain by force and outside of legal methods the object of indicting an act of hate and revenge upon
the persons of the police force of the city of Manila by firing at them in several places in the city
of Manila; the gist of the information in the murder case is that the constabulary, conspiring
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together, illegally and criminally killed eight persons and gravely wounded three others. The
crimes of murder and serious physical injuries were not necessarily included in the information for
sedition; and the Defendants could not have been convicted of these crimes under the first
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information. (Phil. Vol. 43, pages 99-100.)


There is an insinuation made in the majority resolution, that the American Law on sedition and
rebellion, the origin of our present law on the subject, is more benign and liberal than its
counterpart in the Spanish Penal Code, defining and penalizing sedition and rebellion, and that
under American jurisprudence, rebellion and sedition include crimes like murder, robbery, arson,
etc., committed in the course thereof. But it will be noticed that of the nine Justices who signed
the decision in the case of People vs. Cabrera for multiple murder, five, including Mr. Justice
Malcolm, who penned the decision, were Americans, supposed to be steeped in American Law
and the common law, and yet they all held that sedition where force is expected to be used, did
not, include murder. It is evident that the insinuation made in the majority resolution is not exactly
borne out by the Cabrera case.
The majority asks why in the past, especially up to 1932, when our Revised Penal Code was
promulgated no one had ever been prosecuted, much less convicted of rebellion or sedition
complexed with murder, robbery, etc., if it is true that there is such a complex crime of rebellion
with murder. For that matter, one may even ask why the constabulary soldiers in the Cabrera case
were not charged with the complex crime of sedition with murder. The reason and the answer are
obvious. Until 1932, the year of the promulgation of our Revised Penal Code, our old Penal Code
included Article 244, the counter-part of Article 259 of the Spanish Penal Code, to the effect that
common crimes like murder, robbery, arson, committed on the occasion or by reason of a rebellion
or sedition, are to be prosecuted separately. That was why insurgents who committed rebellion or
insurrection with homicide or murder during the first days of the American regime in the
Philippines, could not be charged with the complex crime of rebellion with murder; and that
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explains why Cabrera and his co-accused could not be charged with the complex crime of sedition
with multiple murder, but were prosecuted separately for multiple murder.
The majority also asks why the insurgents in the year 1901 and 1902 were charged only with
rebellion but never with murder despite the fact that there was proof that they also had committed
murder in the course of the rebellion or insurrection. The reason to my mind was that, shortly
thereafter, came the proclamation of amnesty issued by President McKinley of the United States,
which amnesty covered not only the crime of rebellion but also other violations of the law
committed in the course of the rebellion.
Then came our Revised Penal Code promulgated in 1932. It is a revision of our old Penal Code of
1887. One of the purposes of the revision was simplification, and elimination of unnecessary
provisions. In proof of this, while our Penal Code of 1887 contained 611 articles, our Revised
Penal Code contains only 367 articles. Among the articles of the old Penal Code not included in
the Revised Penal Code, is Article 244. Does the omission or elimination of Article 244 mean that
now, common crimes like murder, robbery, arson, etc., committed in the course of a rebellion or
sedition are absorbed by rebellion or sedition? Hardly. It cannot be that the committee on revision
and our legislators abandoned the idea and the theory contained in said Article 244, because as I
have already explained, all the Spanish commentators and jurists commenting on this particular
provision of the Spanish Penal Code are agreed that it is a just and reasonable provision, so that
sedition and rebellion may not be utilized as a cloak of immunity in the commission of other
serious crimes. To me, the reason for the omission is that it was really unnecessary. As Groizard
said in his commentary already reproduced, even if that provision were not embodied in the penal
code, the court would still apply said provision:
chanroblesvirtuallawlibrary

No necesita ninguno el parrafo primero de este articulo. Aunque no se hubiera excrito en el


Codigo, harian los Tribunales lo que dice. Seria necesario para que asi no sucediera el que fuera
la rebelion un motivo de exencion de responsabilidad criminal para las demas clases de delitos.
(Groizard Tomo 3, 650.)
The members of the committee on revision of our old Penal Code who must have been familiar
with the opinion and comments of eminent Spanish jurists, particularly the above comment of
Groizard undoubtedly, deemed the provision of Article 244 superfluous and unnecessary, and so
omitted it in the revision. However, this omission of Article 244 of our Penal Code in the new, has
an important effect. No longer shall we be obliged to prosecute murder, robbery, arson,
kidnapping, etc., committed in the course of and by reason of a sedition or a rebellion, separately.
The prosecution is now free to combine these common crimes with the crimes of sedition or
rebellion and charge a complex crime. And that is what has been done in the prosecution of the
numerous cases of rebellion.
This idea, this theory of complex crime of rebellion with multiple murder, etc., is not such a
strange, extravagant or fantastic proposition or idea. We are not the only ones holding this view.
Out of seven separate cases, all involving the complex crime of rebellion with multiple murder
and etc., decided in the Court of First Instance, not long ago, cases No. 14070 People vs. Lava;
No. 15841 People vs. Hernandez; No. 2878 People vs. Capadocia; No. 10400
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People vs. Salvador No. 2704 People vs. Nava; No. 19166 People vs. Pomeroy and the chan roblesvirtualawlibrary

same case 19166 People vs. Taruc, only one judge, Hon. Gregorio Narvasa, of the Court of
First Instance of Manila, held that there is no complex crime of rebellion with murder, and his
holding was based mainly if not entirely on the decisions of this Tribunal in the treason cases
which as I have already explained, are not controlling or applicable. In the other cases, five judges
of Courts of First Instance, Judges Ocampo, Castelo, Barcelona, Gatmaitan, and Montesa, held
that there is such a complex crime of rebellion with murder and actually convicted the accused of
said complex crime. Again, in the case of People vs. Umali, et al., criminal case No. 11037 of the
Court of First Instance of Quezon Province, Judge Gustavo Victoriano, convicted the accused of
the complex crime of rebellion with multiple murder, etc. Recently, in several criminal cases
pending in Pangasinan, involving the complex crimes of rebellion with multiple murder, etc.,
Judge Morfe of the Court of First Instance of that province acting upon motions to quash the
informations on the ground that there was no such complex crime of rebellion with murder and
consequently, the informations were not in accordance with law, for charging more than one
offense, in a well reasoned and considered order, denied the same and held that there is a complex
crime of rebellion with murder. Of course, these opinions of judges of the lower courts are not
binding on this tribunal but surely, they are persuasive and cannot be ignored. At least, they show
that there are others, learned in the law, who subscribe to the theory of complex crime of rebellion
with murder, arson, etc.
Our decision in the case of People vs. Umali, (96 Phil., 185), promulgated on November 29, 1954,
is another proof that murders committed in the course of sedition or rebellion are not absorbed by
the latter. In said case, this court in a unanimous decision found the Defendants therein guilty of
sedition, multiple murder, arson, frustrated murder and physical injuries and sentenced them
accordingly. The question may again be asked, if there is such a complex crime of sedition with
murder, arson, etc., why were Umali and his co-accused not convicted of this complex crime? The
answer is found in a portion of our decision in that case which we quote: chanroblesv irtuallawlibrary

The last point to be determined is the nature of the offense or offenses committed. Appellants
were charged with and convicted of the complex crime of rebellion with multiple murder,
frustrated murder, arson and robbery. Is there such a complex crime of rebellion with multiple
murder, etc.? While the Solicitor General in his brief claims that Appellants are guilty of said
complex crime and in support of his stand asks for leave to incorporate by reference his previous
arguments in opposing Umalis petition for bail, counsel for Appellants considered it unnecessary
to discuss the existence or non- existence of such complex crime, saying that the nature of the
crime committed is of no moment to herein Appellants because they had absolutely no part in it
whatsoever. For the present, and with respect to this particular case, we deem it unnecessary to
decide this important and controversial question, deferring its consideration and determination to
another case or occasion more opportune, when it is more directly and squarely raised and both
parties given an opportunity to discuss and argue the question more adequately and exhaustively.
Considering that, assuming for the moment that there is no such complex crime of rebellion with
murder; etc., and that consequently Appellants could not have been legally charged with it, much
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less convicted of said complex crime, and the information should therefore, be regarded as having
charged more than one offense, contrary to Rule 106, section 12 and Rule 113, section 2(e), of the
Rules of Court, but that Appellants having interposed no objection thereto, they were properly tried
for and lawfully convicted if guilty of the several and separate crimes charged therein, we have
decided and we rule that the Appellants may properly be convicted of said several and separate
crimes, as hereinafter specified. We feel particularly supported and justified in this stand that we
take, by the result of the case, namely, that the prison sentence we impose does not exceed, except
perhaps in actual duration, that meted out by the court below, which is life imprisonment.
The majority resolution invokes and applies the principle of the so called pro reo in connection
with Article 48 of our Revised Penal Code on complex crimes, to the effect that said article should
not be applied when the resulting penalty exceeds the sum total of the several crimes committed
constituting the complex crime. According to the majority, the theory of pro reo is that the principle
of complex crime was adopted for the benefit of the accused and not to his prejudice; so, it is to
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be applied when the maximum of the penalty for the more serious crime is less in severity or
duration of imprisonment than the sum total of the several crimes committed, but not otherwise.
This is a novel theory in this jurisdiction. To my knowledge it has never been advanced before.
All along and during all these years, the courts of this country not excluding this august tribunal
had been applying the provisions of Article 48 of the Revised Penal Code, and its source, Article
89 of our Penal Code of 1887, regardless of whether or not the resulting penalty was prejudicial to
the accused. As a matter of fact, in most cases the resulting penalty imposed by this tribunal in
complex crimes was much more severe and of longer duration (imprisonment) than the sum total
of the two or more crimes committed. In the numerous cases decided by this court involving the
complex crime of estafa through falsification, the maximum of the penalty for the more serious
crime of falsification was imposed although it exceeded the total of the penalties for estafa and for
falsification. In cases of rape with physical injuries the maximum of the penalty for the crime of
rape was imposed although it exceeded in duration and severity the total of the penalty for rape
and that for the relatively light penalty for physical injuries. In the case of People vs. Parulan (88
Phil., 615), involving the complex crime of kidnapping with murder, this tribunal applied the
provision of Article 48 of the Revised Penal Code and would have sentenced the accused to death,
were it not for one dissenting vote based not on the applicability of Article 48, but on the question
of jurisdiction. Said this court:
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La pena que debe imponerse al acusado Parulan es la del delito mas grave de secuestro en su
grado maximo, o sea, pena capital. Pero el Magistrado Sr. Tuason, consecuente con su opinion
disidente en Parulan contra Rodas, supra, no puede confirmar la pena capital impuesta por el
Juzgado de Primera Instancia de Manila que segun el no tenia jurisdiccion sobre la presente causa.
En vista de este voto disidente, el presidente del tribunal Sr. Paras y tres magistrados aunque creen
que el acusado Parulan, por las pruebas presentadas, merece pena capital, con todo no pueden votar
por la comfirmacion porque el delito se cometio antes de la aprobacion de la Ley de la Republica
No. 296, que solo exige ocho votos para la imposicion de la pena capital. Antomaticamente, por
ministerio de la ley debe imponerse a Parulan la pena inmediatamente inferior a la de muerte, que
es la de reclusion perpetua con las accesorias. (88 Phil., p. 624.)
Then in the case of People vs. Guillen * 47 Off. Gaz., 3433, involving the complex crime of murder
and multiple attempted murder committed by the accused with a single act of hurling a hand
grenade at President Roxas, this tribunal in a per curiam decision, ignoring the aggravating
circumstances that attended the commission of the crime, applied the maximum of the penalty for
the more serious crime of murder in accordance with Article 48 of the Revised Penal Code and
sentenced the accused to death. Other instances and cases may be cited ad libitum to show that in
this jurisdiction and in this tribunal, the principle of pro reo was never entertained, much less
accepted.
Origin of pro reo principle
Up to the year 1908, the Spanish Penal Code had the following provisions for complex crimes: chanroblesvirtuallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave, aplicandola en su
grado maximo.
The above provisions were copied in our Penal Code of 1887 under Article 89 which reads thus: chanroblesvirtuallawlibrary

The provisions of the next preceding article are not applicable to cases in which a single act
constitutes two or more crimes, or when one offense is a necessary means for committing the other.
In these cases, only the penalty of the more serious crime shall be imposed, the same to be applied
in its maximum degree.
On January 3, 1908, the Spanish Penal Code was amended, particularly paragraph 2 of Article 90
thereof so as to add to said paragraph the following clause: chanroblesvirtuallawlibrary

Hasta el limite que represente la suma de las dos que pudieran imponerse, penando separadamente
ambos delitos.
so that since January 1908, Article 90 of the Spanish Penal Code reads: chanroblesv irtuallawlibrary

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer el otro.
En estos casos solo se impondra la pena correspondiente al delito mas grave, aplicandola en eu
grado maximo hasta el limite que represente la suma de las dos que pudieran imponerse, penando
separadamente ambos delitos.
The amendment is the provision for the so called pro reo rule. But we never accepted much less
followed said innovation in the Philippines. We did not amend Article 89 of our old Penal Code
particularly paragraph 2 thereof so as to add the clause: chanroblesvirtuallawlibrary

Hasta el limite que represente la suma de las dos que pudieran imponerse, penando separadamente
ambos delitos.
inserted by the amending Spanish Law of January 3, 1908 to the second paragraph of Article 90
of the Spanish Penal Code. Furthermore, when we drafted and promulgated our Revised Penal
Code in 1932 (Article No. 3815) we ignored and did not accept the amendment to the Spanish
Penal Code that favored one accused of a complex crime as regards the penalty, so that now our
law on the subject is contained in Article 48 of the Revised Penal Code which as amended by Act
No. 4000, reads as follows: chanroblesvirtuallawlibrary

ART. 48. Penalty for complex crimes. When a single act constitutes two or more grave or less
felonies, or when an offense is a necessary means for committing the other, the penalty for the
most serious crime shall be imposed, the same to be applied in its maximum period. (As amended
by Act No. 4000.)
The majority resolution makes a more or less extensive dissertation and citation of authorities on
the law of extradition, intended to show that common crimes such as murder, etc., committed on
the occasion of or in the course of the commission of political crimes like sedition and rebellion,
are not subject to extradition. We believe that these citations and these arguments are neither
relevant nor applicable. All we can say is that a murder committed in the course of a rebellion or
sedition may be considered a political crime in contemplation of the extradition law and that a
person accused of said murder is not subject to extradition. But a crime may be considered political
from the standpoint of the extradition law and yet may be regarded by the country where committed
as a common crime separate and distinct from the rebellion or sedition in the course of which it
was committed, and, consequently, subject to prosecution. Moreover, the fact that a murder
committed in the course of a sedition or rebellion is excluded from the scope of the extradition
agreement between nations, is proof and argument that were it not for its exclusion, the member
nations of the extradition agreement, where murders are committed in the course of a rebellion or
sedition may and would extradite the offenders, on the theory that said murders are separate from
and are not absorbed by the rebellion or sedition; otherwise, there would be no need for
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excluding such crimes of murder, arson, etc., committed during a rebellion or sedition, from the
scope of the extradition law. And among such nations which consider these common crimes of
murder, etc., as separate from rebellion or sedition during which they were committed, are Spain,
as shown by Article 259 of its Penal Code, and the Philippines as illustrated in the cases of U.S.
vs. Cabrera and People vs. Umali, supra. Groizard lists down several countries that consider
common crimes committed during a rebellion or sedition as subject to prosecution: chanroblesvirtuallawlibrary

Codigo del Canton de Zurich.


S. 75. Si con motivo de la sedicion o como consecuencia fueren cometidos otros delitos, estos
seraan castigados conforme a las disposiciones penales para los mismos fijadas.
Codigo de Peru.
ART. 145. Los reos de rebelion, sedicion o asonada son responsables de los delitos especiales que
cometen, observandose lo dispuesto en el Articulo 45.
ART. 146. Si no pudiese averiguarse quien de los sublevados cometio el delito especial, se hara
responsable a los autores del tumulto.
Codigo del Chile.
ART. 131. Los delitos particulares cometidos en un sublevacion o con motivo de ella, seran
castigados respectavamente con las penad designadas para ellos, no obstante le dispuesto en el
articulo 129. Si no pueden decubrirse los autores, seran considerados y penados como
complices de tales delitos los jefes principales o subalternos de los sublevados que hallandose en
la posibilidad de impedirlos no lo hubieren hecho.
Codigo del Paraguay.
ART. 380. Los delitos particulares cometidos en la sedicion o con motivo de ella, seran castigados
con la pena que les corresponda por las leyes respectivas.
Codigo de la Republica Argentina.
ART. 231. Los que cometen delitos comunes con motivo de la rebelion motin o asonada o con
ocasion de ella, seran castigados con la pena que corresponde a esos delitos.
Codigo de Honduras.
ART. 224. (Como el nuestro.)
(Groizard, El Codigo Penal de 1870, Vol. 3, Articulo 259, p. 650.)
In justice to the Defendants-Appellants in the present case, I wish to explain and make clear that
in mentioning and describing the serious crimes of murder, robbery, arson, kidnapping, etc.,
alleged to have been committed in the course of the rebellion or by reason thereof, I am not
referring particularly to the charge or charges and counts alleged against them. Their case is now
pending appeal in this tribunal and their guilt or innocence of said charges or counts will be decided
in due time. And so, I am not imputing or attributing to them the serious violations of law I have
mentioned in this opinion. Rather, I am making general reference to the informations filed in other
cases, especially in the informations against Luis Taruc and William Pomeroy which case is not
only decided but also is closed.
In conclusion, I hold that under the law and under general principles rebellion punished with a
maximum penalty of twelve (12) years and fine cannot possibly absorb a much more serious crimes
like murder or kidnapping which are capital offenses and carry the maximum penalty of death. It
is hard for the mind to grasp the idea that a person committing one lone murder may be headed for
the electric chair; but if perpetrates several murders, kidnappings, arsons, and robberies and
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during their perpetration, was still committing another crime, that of trying to overthrow his own
government by force, then all he gets is twelve years and fine. Since, the serious crimes like
multiple murder, robbery, arson, kidnapping, etc., committed during the rebellion are not
ingredients of, nor are they indispensable to the commission of rebellion, and were but means
freely selected by the rebels to facilitate their commission of rebellion or to achieve and speed up
their realization of their object, which was to overthrow the government and implant their own
system said to be of communistic ideology, then under Article 48 of the Revised Penal Code, the
complex crime of rebellion with murder, etc., was committed.
Judging by the numerous acts of atrocity contained in the several informations filed against the
rebels in different cases, not only government soldiers and officers, but innocent civilians by the
hundreds were murdered. Stores and homes were looted; not only public buildings, like
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presidencias and government hospitals, but also private buildings and homes were burned to the
ground. And as a result of these acts of terrorism, entire barrios were abandoned and landowners,
especially owners of landed estates, evacuated to the provincial capitals or to the cities for personal
security. And it seems that these acts of banditry and pillage still continue though on a smaller
scale.
Settled public policy or the policy of the Government as regards rebellion and the crimes against
persons and property committed by the rebels is clear. With their taxes, the citizens are maintaining
a large army to put down the rebellion. Substantial rewards ranging from P500 to P100,000 are
offered for the apprehension of the rebels, specially the leaders. A rebel leader with a P100,000
price on his head, after a campaign of several years by the army, and after the loss of lives of many
soldiers and civilian guides, is finally captured. The government pays down the P100,000 to those
responsible for the capture and charges him with the complex crime of rebellion with multiple
murder, kidnapping, etc., a capital offense. Pending trial, he asks to be released on bail and
under the doctrine being laid down by us, he is set at liberty, free to go back to the hills to resume
his dissident activities where he left off, by merely posting a bond corresponding to a maximum
imprisonment of twelve years (P12,000) and a fine the amount of which is left to the discretion of
the trial court. If he jumps his bail and assuming that the full amount of the bond is confiscated,
still, the Government which paid P100,000 for his capture is the loser. It will have to wage another
campaign to recapture him and perhaps offer another reward for his apprehension. This would
illustrate the wide divergence between the policy of the Government and the present ruling of the
Court. That is not as it should be. The three departments of the Government, the Executive, the
Legislative and the Judicial Department, though independent of each other, should function as a
team, harmoniously, and in cooperation, all for the public welfare. They cannot work at cross
purposes. All three should be guided by the settled public policy of the state and this applies to the
courts. In the case of Rubi vs. provincial board of Mindoro, 39 Phil., pp. 718-19, this court speaking
about the relation between interpretation of the law by the courts and public policy, said: chanroblesvirtuallawlibrary

As a point which has been left for the end of this decision and which, in case of doubt, would lead
to the determination that section 2145 is valid, is the attitude which the courts should assume
towards the settled policy of the Government. In a late decision with which we are in full accord,
Gamble vs. Vanderbilt University (200 Southwestern Reporter 510) the Chief of Justice of the
Supreme Court of Tennessee writes: chanroblesvirtuallawlibrary

We can see no objection to the application of public policy as a ratio decidendi. Every really new
question that comes before the courts is, in the last analysis, determined on the theory, when not
determined by differentiation of the principle of a prior case or line of cases, or by the aid of
analogies furnished by such prior cases. In balancing conflicting solutions, that one is perceived
to tip the scales which the court believes will best promote the public welfare in its probable
operation as a general rule or principle.
Justice Holmes, in one of the aphorisms for which he is justly famous, said that constitutional
law, like other mortal contrivances, has to take some chances. (Blinn vs. Nelson [1911] 222 U.S.,
1.) If in the final decision of the many grave questions which this case presents, the court must
take a chance, it should be, with a view to upholding the law, with a view to the effectuation of
the general governmental policy, and with a view to the courts performing its duty in no narrow
and bigoted sense, but with that broad conception which will make the courts as progressive and
effective a force as are the other departments of the Government.
Now, by the majority resolution, this Court would spread the mantle of immunity over all these
serious crimes against persons and property on the theory that they are all covered by, included in,
and absorbed by the crime of rebellion. Under this protective mantle extended by us, instead of
curbing and discouraging the commission of these common serious crimes in accordance with
public policy, the commission of said crimes would be encouraged. No longer would evil-minded
men, outlaws, bandits, hesitate to kill and rob and kidnap, because by pretending to be rebels or to
be engaged in rebellion, their acts of atrocity would be covered by rebellion, for which they would
get, at most, twelve (12) years and fine. No longer would the spectre of the death penalty and the
electric chair hang sword of Damocles-like over the heads of would be kidnappers, murderers and
arsonists because by merely claiming to have committed another additional crime, rebellion, under
the doctrine laid down by the majority resolution, capital punishment for all capital crimes they
have committed or may commit, is automatically reduced to twelve (12) years and fine. It is evident
that the effect of the interpretation by this Court of the law on complex crimes, in relation to
rebellion and the common serious crimes committed during and in the course thereof, runs counter
to the settled public policy on the subject.
Sad, indeed, is the role being played by this Tribunal in laying down a doctrine of such far reaching
consequences and in my opinion of such baneful not to say disastrous effects on peace and order
and personal security, diametrically and utterly opposed to settled public policy, when after all, we
have now the opportunity and the choice of accepting and adopting another view, another
interpretation of the law on complex crimes, to be more reasonable, more logical and certainly,
more in accordance with public policy, and more in keeping with peace and order, personal
security and the public welfare.
For the foregoing reasons, I dissent.
Endencia, JJ., concurs.

LABRADOR, J., dissenting: chanrob lesvirtuallawlibr ary

I fully agree with the dissenting opinion of Mr. Justice Montemayor in so far as he holds that the
complex crime of rebellion with murder exists under our law. I also concur with the opinion of
Mr. Justice Padilla in so far as he holds that the petition for bail should be denied because of the
danger that the release of the Petitioner-Appellant may cause to the security of the State. As the
Appellant has been convicted by the Court of First Instance, he may be admitted to bail in the
sound discretion of the court. In the interest of security the discretion should not be exercised in
favor of the granting of bail.