Philippine Supreme Court Jurisprudence > Year 1974 > September 1974 Decisions > Fenandez, J., Concurring : Separate Opinion : G.R. Nos. L-35546, L-35538, L-35539, L-35540, L-35547, L-35556, L-35567, L-35571 and L-35573 September 17, 1974 - G.R. No. L-35546. September 17, 1974. - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, Petitioners, v. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, Repondents : G.R. No. L-35538. September 17, 1974. - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M. LOCSIN, SR., ROLANDO FADUL, ROSALIND GALANG, GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO CONSTANTINO, AND LUIS R. MAURICIO, Petitioners, v. THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; THE CHIEF, PHILIPPINE CONSTABULARY, Et Al. : G.R. No. L-35539. September 17, 1974. - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I. DIOKNO, v. JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES : G.R. No. L-35540. September 17, 1974. _ MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ, v. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO TATAD, PRESS SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY : G.R. No. L-35547. September 17, 1974. - ENRIQUE VOLTAIRE GARCIA II, v. BRIG GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE : G.R. No. L-35556. September 17, 1974 - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN CHIN HIAN, v. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY : G.R. No. L-35567. September 17, 1974 - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO DORONILA, JUAN L. MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN CUSIPAG, ROBERTO ORDO�EZ, MANUEL ALMARIO AND WILLIE BAUN, v. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY : G.R. No. L-35571. September 17, 1974 - IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M. GUIAO, Petitioner, v. JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY : G.R. No. L-35573. September 17, 1974 - ERNESTO RONDON, Petitioner, v. HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY; AND MAJOR RODULFO MIANA:

I

I have decided to write this Separate Opinion even before the main opinion has been written, for no other cases in the history of the Republic have assumed such transcendental importance as the cases which directly arose out of the proclamation of martial law on September 21, 1972. No other cases presented before this Court have aroused such widespread attention, speculation, controversy, and concern. And in the language of one of the petitioners, "the decision in these case(s), whatever it may be, will be cited in history books many, many years from now. And it will be quoted wherever lovers of freedom ask the question � What did the Court do in that difficult hour?"

Our decision in the various petitions now before this Tribunal like Our decision in the Ratification Cases (L-36142, Javellana v. The Executive Secretary, Et Al.,; L-36165, Roxas, Et Al., v. Melchor, etc. Et Al.,; L-36232, Monteclaro, Et Al., v. The Executive Secretary, Et Al., and L-36283, Dilag, Et Al., v. The Honorable Executive Secretary, Et Al.,), must uphold the validity of constitutionalism in our country and our steadfast adherence to the Rule of Law. The decision should set the pattern and the thrust or Our continuous effort to locate that elusive boundary between individual liberty and public order. It should reconcile the claims to individual or civil rights with the equally and, at times, even more compelling needs of community existence in a spirit of Constitutionalism and adherence to the Rule of Law.

Through our New Constitution, the Delegates to the Constitutional Convention and the voters in the ratification referendum alike have given our government a fresh mandate and new guidelines in the charting of a truly independent existence and the emergence of a dynamic and progressive order. It is now the task of this Court to concretize and make clearly visible the connecting links between the 1935 Constitution and the 1973 Constitution, and to consider the constitutionality of the martial law proclamation (No. 1081) now being vehemently challenged in these cases � its constitutionality as initially proclaimed under the old Constitution, and the constitutionality of its continuation which now falls under the present Charter.

It is also the function of this Tribunal to help give flesh and substance to our people’s aspirations for secure and self-sufficient if not abundant existence even as justice, peace, liberty, and equality are guaranteed and assured. It must strike the correct balance, given specific times and circumstances, between the demands of public or social order and equally insistent claims of individual liberty.

The issues raised regarding the force and effectivity of the 1973 Constitution have been thoroughly discussed in other cases. They should now be a settled matter but have been raised anew. These were discussed at length in the earlier stages of the instant petitions. The mass of pleadings and lengthy oral arguments dwelt not only on the validity of Proclamation No. 1081 and the legality of the arrest and detention of the petitioners but also on the effectivity of the new Constitution and other related matters as right to counsel, jurisdiction of military tribunals, applications for amnesty, visits of relatives, conditions inside the detention camp, right to withdraw the petition, and the like. While it is necessary to sift the basic issues from all secondary and incidental matters, we must also touch on important related issues. It is imperative to declare what the Constitution commands is the law on these issues.

The average citizen, as a rule, is not very interested in the detailed intricacies surrounding the resolution of constitutional questions. He usually has strong views on the final outcome of constitutional litigation but rarely bothers to inquire into the labyrinthian facets of the case or the detailed reasoning which usually supports the dispositive portion.

It is not so with regard to these habeas corpuscases. The explosive potentialities of Our ruling are known to everybody. The country awaits Our decision with keen expectations. The grounds supporting the decision are a matter of public concern. The implications of these cases have been speculated upon, although sometimes with limited comprehension and noticeable lack of fairness, even in foreign countries.

It, therefore, behooves the members of this Tribunal to render their opinions, as much as possible, in terms and in a presentation that can be understood by the people.

In J . M . Tuason and Co. Inc. v. Land Tenure Administration, (31 SCRA 413, 423) this Tribunal stated that "as the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present in the people’s consciousness, its language as much as possible should be understood in the sense they have in common use."cralaw virtua1aw library

In this case, We should go one step further. We should not limit Ourselves to looking at the words of the Constitution as ordinary and simple language but Our reasoning in the decision itself should be frank and explicit. Our task is not a mere matter of constitutional construction and interpretation. Through its decision, this Court should also speak directly to the average layman, to the common people.





On September 23, 1972 the President announced that, on September 21, 1972 or two days earlier, he had, pursuant to Proclamation No. 1081, declared a state of martial law in the Philippines. The President cited and detailed many acts of insurrection and rebellion against the government of the Republic of the Philippines committed by lawless elements and various front organizations in order to seize political and state power. Proclamation No. 1081 concludes �

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 place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

In addition, I do hereby order that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative.







Under a state of martial law, petitioners or the persons in whose behalf petitions for writs of habeas corpushave been filed were on various dates arrested and detained. The orders of arrest were premised on General Order No. 2 of the President dated September 22, 1972 1 which was amended by General Order No. 2-A, on September 26, 1972. General Order No 2-A reads:chanrob1es virtual 1aw library

Pursuant to Proclamation Order No. 1081, dated September 21, 1912, and in my capacity as Commander-in-Chief of all the Armed Forces of the Philippines, I hereby order you as Secretary of National Defense to forthwith arrest or cause the arrest and take into your custody the individuals named in the attached lists for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the government by force, the extent of which has now assumed the proportion of an actual war against our people and our legitimate government and in order to prevent them from further committing acts that are inimical or injurious to our people, the government and our national interest, and to hold said individuals until otherwise so ordered by me or by my duly designated representative.

Likewise, I do hereby order you to arrest or cause the arrest and take into custody and to hold them until otherwise ordered released by me or by my duly designated representative:chanrob1es virtual 1aw library

1. Such persons as may have committed crimes and offenses in furtherance or on the occasion of or incident to or in connection with the crimes of insurrection or rebellion as defined in Articles 134 to 138 of the Revised Penal Code, and other crimes against public order as defined in Articles 146, 141, 148, 149, 151, 153, 154, 155, and 156 of the same .Code;

2. Such persons who may have committed crimes against national security and the laws of the nation, as enumerated and defined in Title I of the Revised Penal Code;



Arrests and detentions under a martial law proclamation are not necessarily limited to those who have actually committed crimes and offenses. More specifically, those arrested and taken into custody under General Order No. 2-A fall under three general groups:chanrob1es virtual 1aw library

1. Those who appear to have actually committed crimes and offenses and who should he charged and punished for such crimes and offenses pursuant to our penal laws;

2. hose who have been arrested not to make them account for crimes and offenses but to prevent them from committing acts inimical or injurious to the objectives of a martial law proclamation; and

3. Those who appear to have actually committed crimes and offenses but whose prosecution and punishment is deferred because the preventive nature of their detention is, for the moment, more important than their punishment for violating the laws of the land.

Criminal charges have been filed against petitioner Benigno S. Aquino, Jr., and he, therefore, may fall under Group No. 1 and the "preventive" aspect of Group No. 3. It is true that he questions the validity of the charges, raises as an issue the deprivation of fundamental rights of an accused, and challenges the jurisdiction of a military commission to try him. However, determination of these questions is properly for another proceeding and another decision. For purposes of these habeas corpuspetitions, he and many others similarly situated may fall under Groups 1 and 3.

Petitioner Jose W. Diokno can fall under Group No. 2 and Group No. 3, as far as the record indicates. Thus, there may be persons arrested pursuant to General Order No. 2 who may fall under the second group but against whom charges could be filed as under the third group. They have not been charged for reasons obviously related to national security. The administration may have determined that, in the light of the martial law situation, it is neither wise nor expedient to file such charges now.

The constitutionality of the arrest of those arrested under Group No. 1 cannot be questioned. They have committed a crime and therefore can be ordered arrested and detained.

The constitutionality of the arrest of those arrested under Groups Nos. 2 and 3, under martial law finds support in the book of Justice Fernando and Senator Tañada; the pertinent part of said book reads as follows:chanrob1es virtual 1aw library

Once martial law has been declared, arrest may be necessary not so much for punishment but by way of precaution to stop disorder. As long as such arrest are made in good faith and in the honest belief they are needed to maintain order, the President. as Commander-in-Chief, cannot thereafter, after he is out of office, be subjected to an action on the ground that he had no reasonable ground for his belief. When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individual, must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process. This is admitted with regard to killing men in the actual clash of arms and the same is true of temporary detention to prevent apprehended harm. Good faith and honest belief in the necessity of the detention to maintain order thus furnishes a good defense to any claim for liability. (Tañada and Fernando, Constitution of the Philippines, Vol. II, pp. 1013-1014, 1953 ed.)





(a) The Grounds Therefor:chanrob1es virtual 1aw library

Petitions for writs of habeas corpuswere accordingly filed in this Court by or in behalf of the arrested and detained individuals. The petitions contain substantially similar grounds and prayers.

For instance, in G.R. No. L-35539, Carmen I. Diokno pressed for the urgent and immediate release of Senator Jose W. Diokno from the custody of either the respondents, their agents, instruments, auxiliaries or servants. It is alleged that the respondents unlawfully or illegally and without any valid authority whatsoever, in violation of the petitioner’s rights as a citizen of the Republic, seized his person from his residence and moved him to a place of confinement and detention. The petition also alleges that no charges have been filed against Jose W. Diokno for committing or having committed insurrection or rebellion or subversion and that the memorandum directing his arrest is neither an order of arrest nor a warrant of arrest.

The petition in G.R. No. L-35546 alleges that petitioners Benigno S. Aquino, Jr., Ramon V. Mitra, Jr., Francisco S. Rodrigo, and Napoleon Rama have been illegally detained and unlawfully deprived of their personal liberty beyond the period authorized by law without any formal complaint for any specific offense having been instituted against them before our courts of law and without any judicial writ or order having been issued authorizing their confinement. It is alleged that the petitioners have not committed any crime nor violated any law, rule or regulation whether individually or in collaboration with other person or persons for which they may be detained and deprived of their personal liberty without any formal charge or judicial warrant.

A common allegation in the various petitions challenges the validity of Presidential Proclamation No. 1081. It is asserted that Proclamation No. 1081 declaring martial law is illegal and unconstitutional and, therefore, null and void because the conditions under which martial law may be declared by the President do not exist. The petition in G.R. No. L-35546 states that assuming argumenti gratis that the conditions for the valid exercise of the extraordinary power to declare martial law exist. Proclamation No. 1081 and Presidential Decrees and Orders issued pursuant thereto are unconstitutional and illegal in extent and scope because they deprive the Supreme Court of its constitutional power and authority to determine the constitutionality, legality and validity of the decrees, orders, rules and regulations issued pursuant to the proclamation. It is alleged that the proclamation is unconstitutional and illegal because it divests and ousts the civil courts throughout the Philippines of the jurisdiction to decide and punish certain offenses under the existing laws of the land. The petition emphasizes that civil courts continue to remain open and have in fact never ceased to function. The petition challenges the validity of Proclamation No. 1081 because it grants to the President powers which are otherwise vested by the Constitution in other departments of the Government.

Corollary to the above allegations in G.R. No. L-35546 is the allegation of petitioners Veronica L. Yuyitung and Tan Chin Hian in G.R. No. L-35556 that assuming without admitting the validity of Proclamation No. 1081, the issuance of such a proclamation is not a valid justification to arrest any person whimsically or arbitrarily or without the necessary basis or foundation inherent in the proper arrest or detention.

The petition in G.R. No. 35547 alleges that petitioner E. Voltaire Garcia II has not committed the crimes of insurrection, rebellion or subversion nor any crime similar thereto nor any crime at all. It states that his continued illegal detention prevents him from performing his function as member of the Constitutional Convention and, therefore, deprives his district of representation which is obviously against public policy and public interest. The petition asks the Supreme Court to take judicial notice of the fact that there was no invasion, insurrection, or rebellion or imminent danger thereof before and/or after the date of Proclamation No. 1081 that may require for the public safety the placing of any part of the country under martial law. Reiterating the allegations in the other petitions, it outlines how, throughout the length and breadth of the country especially in the Greater Manila area, all executive offices are functioning in complete normalcy; how all courts from the lowest municipal courts to the Supreme Court are in full operation; how the different legislative bodies from barrio councils up to Congress are likewise functioning smoothly according to law.

Petitioner Ernesto Rondon in G.R. No. L-35573 alleges that pursuant to Proclamation No. 1081 the President issued General Order No. 3 which creates military tribunals to take jurisdiction over certain acts and crimes to the exclusion of civil courts. The petition alleges that the creation of such military tribunals and the vesting thereof with judicial functions are null and void because civil courts are open and functioning. It questions the intent to try the petitioner before the military tribunals for any crime which the respondents may impute to him. The petitioner alleges that he has not engaged in any of the criminal activities defined in Proclamation No. 1081, that, at best, he is only a critic of the policies of the Government and, at worst, a civilian citizen amenable to the processes of civilian law, if at all he has committed any offense.

(b) Present Status of Petitioners:chanrob1es virtual 1aw library

As things now stand, the different petitioners may be divided into four (4) groups:chanrob1es virtual 1aw library

1. Some petitioners like Veronica L. Yuyitung, Tan Chin Hian, Bren Guiao, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Ruben Cusipag, and Willie Baun have already been released from custody of the respondents and are no longer under detention. These petitioners earlier filed motions to withdraw their cases and the Court readily approved the withdrawal of the petitions.

2. Some petitioners like Joaquin V. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Juan L. Mercado, Roberto Ordoñez and Manuel Almario have likewise been released from respondents’ custody and are also no longer detained. However, after an initial period of silence following their release, the petitioners have manifested that they have long been conditionally released subject to various conditions and continuing restrictions thus implying they expect a decision on their petitions. Petitioner Francisco S. Rodrigo has also filed a manifestation stating that while he was released from detention at Fort Bonifacio, Quezon City on December 5, 1972, his release was conditional and subject to certain restrictions. His manifestation was filed for the purpose of showing that insofar as he is concerned, his petition for habeas corpusis not moot and academic. Petitioner Francisco S. Rodrigo is, therefore, asking this Court to render a decision on his petition for a writ of habeas corpus.

3. On the other hand, petitioner Jose W. Diokno was under detention until very recently. For reasons which will be discussed later, he has, however, asked for and insisted upon the withdrawal of his petition in spite of the fact that he is under detention. Before this opinion could be promulgated, however, he has been ordered released by the President on the occasion of his Excellency’s birthday, September 11, 1974, together with some other detainees under martial law.

4. Petitioner Benigno S. Aquino, Jr., is still under detention. Charges have been filed before a military commission for various crimes and offenses but the petitioner challenges the jurisdiction of military courts. He has not filed any motion to withdraw his petition. Based on his pleadings and his challenge to the jurisdiction of military tribunals, the petitioner states that it is incumbent upon this Court to rule upon the merits of the petition. He wants information filed before civilian courts and invokes constitutional rights to free him from military detention. Petitioner Benigno S. Aquino, Jr., is insistent that this Court render a decision on his petition for a writ of habeas corpus.



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The answer of the respondents states that on September 21, 1972, the President of the Philippines, in the exercise of powers vested in him by Article VII, Section 10, paragraph 2 of the Constitution, issued Proclamation No. 1081 placing the entire Philippines under martial law. All the acts questioned by the petitioners are justified by orders and instructions of the President issued pursuant to the proclamation of martial law. The main question that confronts the Tribunal is, therefore, the validity of Proclamation No. 1081. If it is tainted with unconstitutionality, then all the acts taken pursuant to the proclamation are void. It will then follow that the arrest and detentions of the petitioners are void.

On the other hand, if the proclamation of martial law is sustained, we still have to determine its scope and effects. We must answer these questions: May we inquire into the validity of its continuation? Is a suspension of the privilege of the writ of habeas corpusautomatically included in a proclamation of martial law?

Other questions also arise which, however, need be decided by Us only in a general manner in the present cases. May the Commander-in-Chief issue orders with the force and effect of legislation? May such legislation cover subjects which are not directly related to the conquest of the particular crisis? In other words, does the proclamation of martial law give the President authority to pass legislation not directly related to invasion, insurrection, rebellion, or imminent danger thereof? If civilian courts are open and functioning, may the President issue decrees and orders which transfer some of their jurisdiction to military tribunals?

Incidental issues have also been raised in the light of the main issue of martial law. One is no longer before this Court but may be mentioned in passing. The 1973 Constitution increased the composition of the Court from eleven (11) to fifteen (15). At a time when there were only nine (9) members carried over from the old Court, may these nine members � the Acting Chief Justice and eight members � validly hear a constitutional issue? Is there a quorum under Article X, section 2 (2) which reads:chanrob1es virtual 1aw library

(2) All cases in involving the constitutionality of a treaty, executive agreement, or law shall be heard and decided by the Supreme Court en banc, and no treaty, executive agreement, or law may be declared unconstitutional without the concurrence of at least ten Members. All other cases which under its rules are required to be heard en banc, shall be decided with the concurrence of at least eight Members.

We now have a Chief Justice and eleven members so the problem of a quorum is solved.

Another incidental issue is the power of this Court to inquire into the conditions of detention of petitioners. And still another issue is whether one of the petitioners may, at a time when a decision is ready to be promulgated, withdraw his petition and avoid a decision on the issues he has raised.





The first issue to resolve is an incidental but important one. It is also the most recent.

(a) Arguments Pro and Con:chanrob1es virtual 1aw library

In a Motion to Withdraw dated December 29, 1973, petitioner Jose W. Diokno asked leave of court to withdraw the petition for habeas corpusfiled in his behalf. He asked for the withdrawal of the main petition and other pleadings filed in the case. The reason given for the withdrawal was "First, though I am convinced beyond any nagging doubt that we are on the side of right and reason, law and justice, I am equally convinced that we cannot reasonably expect either right or reason, law or justice to prevail in my case . . . (and) Second, in view of the new oath that its members have taken, the present Supreme Court is a new Court functioning under a new Constitution, different from the Court under which I applied for my release. I was willing to be judged by the old Court under the old Constitution but not by the new Court under the new Constitution because as Albert Camus’ judge penitent said in the novel "The Fall": ‘he who clings to a law does not fear the judgment that puts him in his place within an order he believes in. But the keenest of human torments is to be judged without law."cralaw virtua1aw library

On being required to comment on the petitioner’s motion to withdraw, the Solicitor General stated that the petitioner * should not be allowed to remove his case from this Court. Three reasons were given: (a) that the charge is unfair to the Supreme Court and its members; (b) that it is untrue and (c) that in the main, it is contemptuous. The Solicitor General disputed, as unfair, the charge that justice cannot be expected from the Supreme Court. He pointed out that the Supreme Court did not inject itself into the controversy but it was the petitioner who invoked the Court’s jurisdiction not only in this case but the plebiscite cases as well. The Solicitor General noted that the scorn with which the Court is treated in the motion to withdraw stands in sharp contrast with the praise lavished on it when petitioners began these proceedings.

It may be noted that the Supreme Court was then characterized as having the greatest credibility among the three branches of government. It was described as a dispenser of justice and as the last citadel of their liberties.

In his Memorandum, petitioner manifested and stressed the importance of a decision � "the decision in this case, whatever it may be, will be cited in history books many years from now. And it will be quoted wherever lovers of freedom ask the question . . . What did the Court do in that difficult hour?" (Emphasis supplied).

The petitioner further stated in the Memorandum that "the duty of this Court is awesome indeed. Its responsibility to Our people and to history is heavier and more enormous than words and phrases can possibly describe."cralaw virtua1aw library

In contrast to this insistence on a decision, a portion of the motion to withdraw cited by the respondents may be repeated:chanrob1es virtual 1aw library

[I]t seems to me that our people have the right to expect members of the highest court of the land to display a conscience more sensitive, a sense of mental honesty more consistent than those generally displayed in the market place. And it has pained me to note that, in swearing to support the new ‘Constitution’, the five members of the Court who had held that it had not been validly ratified, have not fulfilled our expectations. I do not blame them I do not know what I would have done in their place. But, as the same time, I cannot continue to entrust my case to them; and I have become thoroughly convinced that our quest for justice in my case is futile. (p. 6).

Issue was also taken by the respondents with the petitioner’s charge that despite the finding of a majority that the new Constitution had not been validly ratified, the Court nonetheless dismissed the petitions seeking to stop the enforcement of the Constitution. The allegation that the justices of this Court took an oath to support the Constitution because they had been allowed to continue in office was challenged as false by the respondents.

The third ground for the respondents’ opposition to the motion to withdraw is the allegedly contemptuous nature of the motion. The Comment states that attacks on the Court are most serious; none of those made in the past has put the court’s integrity and capacity for justice in serious question as much as the petitioner’s motion to withdraw. According to the Solicitor General, the charge in the case at bar goes to the very foundation of our system of justice and the respect that is due to it, that it is subversive of public confidence in the impartiality and independence of courts and tends to embarrass the administration of justice. The Solicitor General manifested that "we cannot shape the world of the Supreme Court as we want to see it and, later seeing the world of reality lash at the Supreme Court for betraying our illusions."cralaw virtua1aw library

In succeeding pleadings, petitioner Diokno pressed his motion to withdraw with even greater vigor. Counsel for petitioner stated that the so-called charge � "unfair to the Court and its members, untrue, and contemptuous" � was never made at all and that the Solicitor General was putting up a strawman and proceeding to demolish it.

In a forty-six (46) page Reply, he pointed out that the factual bases for deciding to withdraw the case have not been specifically denied, as indeed they are undeniable. It should be noted, however, that the cited factual bases go into the very merits of the petition for the writ of habeas corpus:chanrob1es virtual 1aw library

(1) On the question of the validity of ratification, six (6) members of the Court held that the proposed Constitution was not validly ratified.

(2) On the question of acquiescence by the Filipino people, only a minority of four (4) justices held there was acquiescence, two (2) holding that there was no acquiescence, and four (4) holding they had no means of knowing to the point of judicial certainty, whether the people have accepted the Constitution.

(3) The Court did not rule that the "new Constitution" was in effect.

(4) The ratification cases were nevertheless dismissed.

The petitioner added "undeniable facts":chanrob1es virtual 1aw library

(1) The petition for habeas corpuswas filed September 23, 1972 while the ratification cases were fired January 20 and 23, 1973.

(2) From the filing of the petition to the date petitioner Diokno asked his counsel to withdraw the case, 460 days had elapsed.

(3) On the date the reply was filed, 531 days had elapsed without charges being filed or trial and conviction for any offense being held.

(4) All the members of the old Court, who had taken an oath to "preserve and defend" the 1935 Constitution, took an oath on October 29, 1973 to defend the "new Constitution."

In disputing the Solicitor General’s charge that the Supreme Court is treated with scorn in the Motion to Withdraw, the petitioner stated that the tone of the motion may be one of dismay or frustration but certainly not of scorn. The petitioner called the charge gratuitous and totally bare of foundation.

The petitioner also pointed out that there could be no contempt of court in the motion to withdraw because the factual bases of his letter are indisputable and the motion comes under the protection of the constitutional right to a fair hearing. He invoked his right to free expression as a litigant and stressed that a citizen of the Republic may express himself thoughtfully, sincerely and reputably without fear of reprisal. The petitioner also pointed out that both principle and precedent justify grant of the motion to withdraw.

(b) My original stand: Motion should be denied:chanrob1es virtual 1aw library

Reasons:chanrob1es virtual 1aw library

My present stand: In view of the release of Diokno before this opinion could be promulgated, I now vote to grant his motion to withdraw his petition the same having become moot and academic.

But, I would like to discuss the merits of the motion if only to establish guidelines for similar cases that may arise in the future.

As a general rule, the right of the plaintiff to dismiss his action with the consent of the Court is universally recognized. If the plaintiff believes that the action he has commenced in order to enforce a right or to rectify a wrong is no longer necessary or he later discovers that the right no longer exists, he should be allowed to withdraw his case. If in the course of litigation, he finds out that the course of the action shall be different from that he had intended, the general rule is that he should be permitted to withdraw the same, subject to the approval of the Court.

The plaintiff should not be required to continue the action when it is not to his advantage to do so. Litigation should be discouraged and not encouraged. Courts should not allow parties to litigate when, they no longer desire to litigate.

It should be noted, however, that the Rules of Court do not allow automatic approval of the plaintiff’s motion to dismiss after service of the answer or of a motion for summary judgment Under Rule 17, ** once the issues are joined, an action can be dismissed upon the plaintiff’s instance only upon order of the Court and upon such terms and conditions as the Court deems proper.

The requirement in the Rules that dismissal is discretionary upon the Court is not without significance. In fact, the petitioner does not deny the authority of the Court to reject his motion as long as there are reasons for such rejection. He is simply arguing that there is no valid reason to deny the motion thus implying that a denial would, in effect, be an abuse in the exercise of a discretionary power.

In the Court’s deliberations, the view was advanced that petitioner’s motion for withdrawal made his confinement voluntary. I disagreed, for said motion, in the light of the other pleadings and memoranda submitted by him, can still be considered as a protest against his confinement. In other words, petitioner has not made any statement upon which we can base a conclusion that he is agreeing voluntarily to his continued confinement and thereby making his case moot and academic.

I submit there can be no debate over the principle that the right to withdraw a petition at this stage is not an absolute right. What faces this Court is not its power to grant or deny the motion but whether there are sound reasons why the motion to withdraw should be denied. If there are no sound reasons, the motion should be granted.

According to the petitioner, there are only two instances when a Court may validly deny such a withdrawal �

(1) When the withdrawal would irreparably injure other parties to the case such as, for example, in class suits, in probate proceedings, or in ordinary civil actions when the adverse party has pleaded a counterclaim that cannot be decided without first deciding the main case; and

(2) When the withdrawal would irreparably injure the public interest by depriving the Court of the opportunity to prevent or to correct a serious violation of the Constitution or of the laws.

I am not prepared to accept the proposition or to render an abstract opinion that there are indeed only two such exceptions. The infinite number of factual situations that can come before this Court could conceivably add one or two or even more exceptions. It would be imprudent or precipitate to make such a categorical assertion. Where it not for the release of Diokno, I would have pressed on my firm belief that the importance of this case and the issues raised by the petitioner call for denial of the motion to withdraw. The points ably raised by Solicitor General Estelito P. Mendoza and Assistant Solicitor General Vicente V. Mendoza, who have shown remarkably splendid performance in shouldering almost entirely the government’s defense, against some of the country’s most distinguished lawyers, notably former Senator Lorenzo M. Tañada and a battery of other lawyers whose names are a veritable list of "Who is Who" in the legal profession, can be condensed into only one argument � the petitioners have brought before this Court a case of such transcendental importance that it becomes a duty to our legal institutions, to our people, and to posterity to decide it. We must not leave the resolution of such grave issues to a future day.

Furthermore, among the present habeas corpuscases now before this Court, the best forum for Our decision would have been the Diokno case for, before his release, he was the only petitioner who was actually detained but without charges while there are already charges filed against Aquino, and with respect to the others whose cases are still pending before Us, they are only under detention within the Greater Manila area or are under community arrest.

The petitioner seeks to distinguish his case from Krivenko v. Register of Deeds, 79 Phil. 461. In that case, this Court ruled �

According to Rule 52, section 4, of the Rules of Court, it is discretionary upon this Court to grant a withdrawal of appeal after the briefs have been presented. At the time the motion for withdrawal was filed in this case, not only had the briefs been presented, but the case had already been voted and the majority decision was being prepared. The motion for withdrawal stated no reason whatsoever, and the Solicitor General was agreeable to it. While the motion was pending in this Court, came the new circular of the Department of Justice, instructing all register of deeds to accept for registration all transfers of residential lots to aliens. The herein respondent-appellee was naturally one of the registers of deeds to obey the new circular, as against his own stand in this case which had been maintained by the trial court and firmly defended in this Court by the Solicitor General. If we grant the withdrawal, the result would be that petitioner-appellant Alexander A. Krivenko wins his case, not by a decision of this Court, but by the decision or circular of the Department of Justice, issued while this case was pending before this Court. Whether or not this is the reason why appellant seeks the withdrawal of his appeal and why the Solicitor General readily agrees to that withdrawal, is now immaterial. What is material and indeed very important, is whether or not we should allow interference with the regular and complete exercise by this Court of its constitutional functions, and whether or not after having held long deliberations and after having reached a clear and positive conviction as to what the constitutional mandate is, we may still allow our conviction to be silenced, and the constitutional mandate to be ignored or misconceived, with all the harmful consequences that might be brought upon the national patrimony. For it is but natural that the new circular be taken full advantage of by many, with the circumstance that perhaps the constitutional question may never come up again before this court, because both vendors and the vendees will have no interest but to uphold the validity of their transactions, and very unlikely will the register of deeds venture to disobey the orders of their superior. Thus the possibility for this court to voice its conviction in a future case may be remote, with the result that our indifference of today might signify a permanent offense to the Constitution. (pp. 466-467)

There are indeed certain differences between the facts of the Krivenko case and the facts of the current petitions. If the factual situations were completely similar, former Senator Lorenzo M. Tañada would have been the last person to insist on the Diokno motion for withdrawal. He was the Solicitor General in 1947. He is completely familiar with the ramifications of the Krivenko case.

I cannot, however, agree with counsel Tañada that the deviations from the Krivenko facts call for a different ruling in the instant petitions. The Supreme Court has grappled at length and in depth with the validity of the proclamation of martial law. It has closely examined the resultant curtailments of such liberties as the right to a writ of habeas corpusor to freedom of expression. When it is on the verge of issuing a decision, it is suddenly asked to drop the case and the issues raised simply because the petitioner is no longer interested in the decision. To my mind, a granting of the motion would be recreancy and unfaithfulness to the Courts sworn duties and obligations.

As in the Krivenko case, the reasons for the withdrawal are no longer significant. It is the non-silencing of this Court on issues of utmost public importance which really matters. It is true that petitioner Diokno is alone in seeking withdrawal at this stage of the case. The fact that a decision could possibly still be rendered on remaining cases is, however, no justification to grant the motion. The issue is whether one or two or all of the petitioners may ask for a withdrawal of his or their petitions and hope to bring about a non-decision on the issues because of the rendering moot and academic of the case. My answer is categorically in the negative. In fact, even if the case is mooted at this stage by the release of the petitioners, I would still vote for a decision on the questions raised.

This may be a simple motion for withdrawal. Yet, I see no difference in the need to answer vital questions that have been presented. The public interest that is affected is equally pressing and serious if the petitions are compared to instances in the past when the Court insisted on rendering a decision. In fact, there is an even stronger need to interpret the meaning of the constitutional provision in spite of urgings that it should refrain from doing so.

As early as 1937, this Court, speaking through Justice Laurel in People of the Philippine Islands v. Vera (65 Phil. 56, 94) emphatically stated that when the country awaits a decision on an important constitutional question, a relaxation of general rules is called for. A decision must issue.

. . . All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that the constitutionality of Act No. 4221 be now resolved. . . . In Yu Cong Eng v. Trinidad, supra, an analogous situation confronted us. We said: "Inasmuch as the property and personal rights of nearly twelve thousand merchants are affected by these proceedings, and inasmuch as Act No. 2972 is a new law not yet interpreted by the courts, in the interest of the public welfare and for the advancement of public policy, we have determined to overrule the defense of want of jurisdiction in order that we may decide the main issue. We have here an extraordinary situation which calls for a relaxation of the general rule." Our ruling on this point was sustained by the Supreme Court of the United States. A more binding authority in support of the view we have taken can not be found.

In the case of Avelino v. Cuenco (83 Phil. 17), the Supreme Court had very sound reasons to resolve on March 4, 1949 not to decide whether or not Senator Cuenco had validly been elected Senate President. The Court ruled that the subject matter of the quo warranto proceeding to declare the petitioner the rightful President of the Philippine Senate and to oust the respondent was not a matter for the Supreme Court in view of the separation of powers doctrine, the political nature of the controversy, and the constitutional grant to the Senate of the power to elect its own President. The power to elect its President should not be interfered with nor taken over by the judiciary.

On March 14, 1949 or only ten (10) days later, the Court, by a majority of seven, decided to resolve the questions presented to it. The Court could very well have insisted on its earlier stand that it should render no decision. Election of the Senate President was still a matter which only the Senate should decide. And yet, in the light of subsequent events which justified its intervention, partly for the reasons stated in the March 4, 1949 resolution of the Court, and partly because of the grounds stated in the various individual opinions, the Court was constrained to declare positively that there was a quorum in the session where Cuenco was elected Acting Senate President. The Court decided to reverse a categorical position taken only ten (10) days earlier. It is clear from the circumstances of the case that the Court was impelled by strong policy considerations to make a definite pronouncement in the case in order to conform to substantial justice and comply with the requirements of public interest. As pointed out by Justice Perfecto in his concurring opinion, "This case raises vital constitutional questions which no one can settle or decide if this Court should refuse to decide them."cralaw virtua1aw library

In Gonzales v. Commission on Elections, (27 SCRA 835, 853), the words of Justice Laurel were recalled in order to overcome objections to an extended decision on a case which had become moot and academic.

"In the course of the deliberations, a serious procedural objection was raised by five members of the Court (Chief Justice Concepcion and Justices Reyes, Makalintal, Teehankee and Barredo.) It is their view that respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm the original stand that under the circumstances, it could still rightfully be treated as a petition for prohibition.

"The language of Justice Laurel fits the case: ‘All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [Its] constitutionality . . . he now resolved.’ (65 Phil. 56, 94 (1937) Cf. Yu Cong Eng v. Trinidad, 47 Phil. 385 (1926), 271 US 500; 70 Law ed., 1059). It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections being barely six months away, reinforce our stand.

"It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter."cralaw virtua1aw library

In De la Camara v. Enage (41 SCRA 1), this Court was similarly impelled to make a decision because of strong policy considerations. A petition to reduce the P1,195,200.00 bail imposed by the trial court had become moot and academic. The petitioner had escaped from the provincial jail. The Court could no longer grant any relief. It, however, decided the case "to set forth anew the controlling and authoritative doctrines that should be observed in fixing the amount of the bail sought in order that full respect be accorded to such a constitutional right." (at page 4). Education, especially of trial judges, was the reason for answering the issues squarely.

I would like to reiterate, however, that in view of the fact that petitioner Diokno has been released on the occasion of President Marcos’ birthday (September 11), I now vote to grant the Diokno motion to withdraw his petition for a writ of habeas corpus, the same having become moot and academic.



But as already stated under the topic IV (b) "Present Status of the Petitioners", many of them, notably Aquino and Rodrigo, still insist on a decision. This we must now do, for the resolution of the controversy in favor of the petitioners or for the respondents is not the compelling consideration. What is important and essential is that the Court declare in a manner that cannot be misunderstood what the Constitution commands and what the Constitution requires.

It is true that the Court should not formulate a rule of constitutional law broader than is required by the precise facts to which it is applied. It is true that a decision on a question of a constitutional nature should only be as broad and detailed as is necessary to decide it.

There are, therefore, those who would limit a decision solely on the Transitory Provisions of the 1973 Constitution. The exercise of martial law powers under Article VII, Section 10, paragraph 2 of the former Constitution or Article VII, Section 12 of the 1973 Constitution have been subjected to intensive, searching, and well-published challenges. 2 If We decide the case solely on the transitory provision, uncertainty and confusion about martial law would remain. The provisions on martial law would still be unexplained and unresolved by this Court. It is easy to see the patent undesirability of such a situation.

In these petitions, our people await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant petitions have assumed, We must set forth the controlling and authoritative doctrines.



The Solicitor General stated the respondents’ position as a narrow one � whether the arrest and detention of the petitioners were legal.

It is true that habeas corpusis intended for cases of illegal confinement or detention by which a person is deprived of his liberty (Section 1, Rule 102, Rules of Court). Its essential object is to inquire into all manner of involuntary restraint and to relieve a person therefrom, if such restraint is illegal (Villavicencio v. Lukban, 39 Phil. 778; Culauag v. Director of Prisons, 17 SCRA 429). While the issue may be presented in seemingly narrow terms, its scope and implications are not that simple. The respondents argue that this Court is precluded by the Constitution from inquiring into the legality of the detentions. They argue that such an inquiry is possible only where the privilege of the writ of habeas corpusis available and inasmuch as the privilege of the writ has been suspended by the President upon the proclamation of martial law, it follows that We should inhibit Ourselves from asking for the reasons why the petitioners were arrested and detained. It is argued that the Constitution has vested the determination of the necessity for and legality of detentions under martial law exclusively in the Presidency � a co-equal department of government.

The principal issues, therefore, revolve around first, the validity of Proclamation No. 1081. Second, assuming its original validity, may We inquire into the validity of its continuation? And third, has the privilege of the writ of habeas corpusalso been suspended upon the proclamation of martial law? The extent of Our inquiry into the legality of the detentions and their effects is dependent on the answers to the foregoing issues.



In Proclamation No. 1081, dated September 21, 1972, President Ferdinand E. Marcos placed the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law by virtue of the power vested in the President of the Republic of the Philippines by Article VII, Section 10, par. (2) of the Constitution which reads �

"The President shall be the commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, 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."cralaw virtua1aw library

(a) What is martial law?

As the Solicitor General pointed out when asked to submit definitions of martial law, there are as many definitions as there are court rulings and writers on the subject. The response of the petitioners gives the same impression.

As good definition as any that may have been made in the past are the following:jgc:chanrobles.com.ph

"Generally speaking, martial law or, more properly, martial rule, is the temporary government and control by military force and authority of territory in which, by reason of the existence of war or public commotion, the civil government is inadequate to the preservation of order end the enforcement of law. In strictness it is not law at all, but rather a cessation of all municipal law, as an incident of the jus belli, and because of paramount necessity, and depends, for its existence, operation and extent, on the imminence of public peril and the obligation to provide for the general safety. It is essentially a law or rule of force, a purely military measure, and in the final analysis is merely the will of the officer commanding the military forces. As the off-spring of necessity, it transcends and displaces the ordinary laws of the land, and it applies alike to military and non-military persons, and is exercisable alike over friends and enemies, citizens and aliens." (C.J.S., Vol. 93, pp. 115-116, citing cases).

"Martial law is the exercise of the power which resides in the executive branch of the government to preserve order and insure the public safety in times of emergency, when other branches of the government are unable to function, or their functioning would itself threaten the public safety" (Luther v. Borden, 7 Hos. (US) 1, 45, 12 L ed 581, 600). "It is a law of necessity to be prescribed and administered by the executive power. Its object, the preservation of the public safety and good order, defines its scope, which will vary with the circumstances and necessities of the case. The exercise of the power may not extend beyond what is required by the exigency which calls it forth." (Mitchell v. Harmony, 13 How. (US) 115, 133, 14 L ed 75, 83; United States v. Russell, 13 Wall. (US) 623, 628, 20 L ed 474, 475; Raymond v. Thomas, 91 US 712, 716, 23 L ed 434, 435; Sterling v. Constantin, 190. (Concurring opinion, Duncan v. Kahanamoku, 327 U.S. 334, 335, 90 L ed 706 (1945-1946).

It has been held, therefore, that martial law is a "law of actual military necessity in actual presence of war, and is administered by the general of the army, whose will it is, subject to slight limitations." (Constantin v. Smith, D.C. Text, 57 F. 2d 239). Under this same ruling, martial law is strictly no law at all. It is a cessation of all municipal law.

In another decision, it has been held that �

"All respectable writers and publicists agree in the definition of martial law � that it is neither more nor less than the will of the general who commands the army. It overrides and suppresses all existing civil laws, civil officers and civil authorities, by the arbitrary exercise of military power; and every citizen or subject, in other words, the entire population of the country, within the confines of its power, is subjected to the mere will or caprice of the commander. He holds the lives, liberty and property of all in the palm of his hands. Martial law is regulated by no known or established system or code of laws, as it is over and above all of them. The commander is the legislator, judge and executioner." (In re: Egan, 8 Fed. Cas. p. 367).

Other definitions may be cited:jgc:chanrobles.com.ph

"Martial law . . . is not statutory in character and always arises out of strict military necessity. Its proclamation or establishment is not expressly authorized by any of the provisions of the Constitution; it comes into being only in the territory of an enemy or in a part of the territory of the United States in time of war or in time of peace in which the proper civil authority is, for some controlling reason, unable to exercise its proper function." (Charles Warren "Spies, and the Power of Congress to Subject Certain Classes of Civilian to Trial by Military Tribunal", The American Law Review LIII (March-April, 1919), 201-292).

"The term martial law refers to the exceptional measures adopted whether by the military or the civil authorities, in times of war of domestic disturbance, for the preservation of order and the maintenance of the public authority. To the operation of martial law all the inhabitants of the country or of the disturbed district, aliens as well as citizens, are subject." (Moore, Int. Law Digest II, 186. As to the subjection of aliens to Martial Law, See Moore, II, 196).

"Martial law relates to the domestic territory in a condition of insurrection or invasion, when the Constitution and its civil authorities, state or federal as the case may be, have been rendered inoperative or powerless by the insurrectionary or invading forces. It is part of our domestic or municipal law." (Arnold F., "The Rationale of Martial Law", 15 ABAJ 551).

A Philippine author has tried to reconcile the many definitions.

"Whatever the previous obscurity which has enveloped martial law in both the British Empire and the United States, it is settled today that martial law is (1) the exercise of military jurisdiction; (2) by the military over the civilian population; (3) in a domestic territory; (4) on occasion of serious public emergencies such as insurrection, rebellion, invasion or imminent danger thereof; (5) according to an unwritten law; and (6) as necessity requires." (Santos, Martial Law, p. 81).

The existing definitions are all based on the traditional concepts. They were made at a time when invasions were preceded by 48-hour ultimatums followed by a formal declaration of war, and when insurrections and rebellions involved frontal clashes between opposing and well-defined forces. If one group was overcome by the other, the losers would surrender their swords and guns. The winners, in turn, might magnanimously offer to return the swords and allow the losers to retain their sidearms, rifles, and horses for home use. In short, there were clear and sporting rules of the game which were generally followed.

(b) Modern Martial Law

Martial law pursuant to Proclamation No. 1081, however, does not completely follow the traditional forms and features which martial law has assumed in the past. It is modern in concept, in the light of relevant new conditions, particularly present day rapid means of transportation, sophisticated means of communications, unconventional weaponry, and such advanced concepts as subversion, fifth columns, the unwitting use of innocent persons, and the weapons of ideological warfare.

The contingencies which require a state of martial law are time-honored. They are invasion, insurrection and rebellion. Our Constitution also allows a proclamation of martial law in the face of imminent danger from any of these three contingencies. The Constitution vests the power to declare martial law in the President under the 1935 Constitution or the Prime Minister under the 1973 Constitution. As to the form, extent, and appearance of martial law, the Constitution and our jurisprudence are silent.

Martial law pursuant to Proclamation No. 1081 has, however, deviated from the traditional picture of rigid military rule super-imposed as a result of actual and total or near total breakdown of government.

Martial law was proclaimed before the normal administration of law and order could break down. Courts of justice were still open and have remained open throughout the state of martial law. The nationwide anarchy, overthrow of government, and convulsive disorders which classical authors mention as essential factors for the proclamation and continuation of martial law were not present.

More important, martial law under Proclamation No. 1081 has not resulted in the rule of the military. The will of the generals who command the armed forces has definitely not replaced the laws of the land. It has not superseded civilian authority. Instead of the rule by military officials, we have the rule of the highest civilian and elective official of the land, assisted by civilian heads of executive departments, civilian elective local officials and other civilian officials. Martial law under Proclamation No. 1081 has made extensive use of military forces, not to take over civilian authority but to insure that civilian authority is effective throughout the country. This Court can very well note that it has summoned and continues to summon military officers to come before it, sometimes personally and at other times through counsel. These military commanders have been required to justify their acts according to our Constitution and the laws of the land. These military officers are aware that it is not their will much less their caprice but the sovereign will of the people under a rule of law, which governs under martial law pursuant to Proclamation No. 1081.

It is this seemingly paradoxical nature of martial law in the Philippines that leads to the various questions raised in the instant petitions. It is also this apparently variant form and its occasionally divergent scope and effects which require this Court to explain just what the martial law provision of the Constitution means.

We must, perforce, examine the arguments of the parties on this matter.

(c) Respondents’ Arguments.

The respondents contend that when martial law was proclaimed on September 21, 1972, the rebellion and armed action undertaken by the lawless elements of the communist and other armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force had assumed the magnitude of an actual state of war against our people and the Republic of the Philippines. This declaration is found in the last "whereas" of Proclamation No. 1081. The following assertions of the factual situation on September 21, 1972 are also found in Proclamation No. 1081.

1. There is a group of lawless elements who are moved by a common or similar ideological conviction, design, strategy, and goal. Their prime purpose is to stage, undertake, and wage an armed insurrection and rebellion against the government of the Republic of the Philippines in order to forcibly seize political and state power in this country. They have in fact actually staged, undertaken, and waged this insurrection and rebellion. They want to overthrow the duly constituted government and supplant our existing political, social, economic, and legal order with an entirely new one. This new form of government, its system of laws, its conception of God and religion, its notion of individual rights and family relations, and its political, social, economic, legal and moral precepts are based on the Marxist, Leninist, Maoist teachings and beliefs.

2. These lawless elements have entered into a conspiracy and have joined and banded their resources and forces. They use seemingly innocent and harmless although actually destructive front organizations. These organizations have been infiltrated or deliberately formed by them through sustained and careful recruitment from among the peasantry, laborers, professionals, intellectuals, students, and mass media personnel. Their membership has been strengthened and broadened. Their control and influence has spread over almost every segment and level of our society throughout the land.

3. The foregoing group of lawless elements enjoy the active, moral, and material support of a foreign power. In the months of May, June and July, 1972, they brought into the country at Digoyo Point, Palanan, Isabela and other points along the Pacific coast of Luzon, substantial quantities of war materials consisting of around 3,500 M-14 rifles, several dozens of 40 mm rocket launchers, large quantities of 80 mm rockets and ammunitions and other combat paraphernalia.

4. The lawless elements have an over-all revolutionary plan. They have distributed their regional program of action for 1972 to their various field commanders and party workers. The implementation of the program of action from the intensification of recruitment to the assassination of high government officials and the establishment of a provisional revolutionary government in various towns and cities has actually commenced. Various incidents of bombings, strikes, robberies, sabotage, and demonstrations are actually in implementation of the program of action. Liquidation missions aimed at ranking government officials were about to be implemented by the fielding of so-called Sparrow Units.

5. There is an equally serious disorder in Mindanao and Sulu resulting in actual war among Christians, Muslims, Ilagas, Barracudas, the Mindanao Independence Movement and government troops. Violent disorder in Mindanao and Sulu resulted in over 3,000 casualties and more than 500,000 injured, displaced and homeless persons. The economy of Mindanao and Sulu is paralyzed.

6. There is throughout the land a state of anarchy, lawless chaos, disorder, turmoil and destruction of a magnitude equivalent to an actual war between government forces on the one hand and the New People’s Army and the satellite organizations on the other.

7. The Supreme Court in the 1971 habeas corpuscases has found that in truth and in fact there exists an actual insurrection and rebellion in the country. Portions of the Supreme Court decision are cited. It was concluded by the Supreme Court that the unlawful activities of the aforesaid elements pose a clear, present, and grave danger to public safety and the security of the nation is also cited.

(d) Petitioners’ Arguments:chanrob1es virtual 1aw library

On the other hand, the petitioners state that in the Philippines "there has been no disruption at all; all government offices were performing their usual functions; all courts were open and in the unobstructed exercise of their jurisdiction at the time martial law was declared." The petitioners state that we have no Civil War in the Philippines and that no province, no city, no town throughout the Philippines has seceded from the Republic. They state that there is no status of war and no status of belligerency. There is no armed struggle carried on between two political bodies, each of which exercises de facto sovereignty over persons within a determinate territory, and commands an army which is prepared to observe the ordinary laws of war.

On rebellion, the petitioners point out that the rebels have not established an organized civil government nor occupied a substantial portion of the national territory and, in fact, are described as mere "lawless elements."cralaw virtua1aw library

The petitioners state that "the thrust of martial law cases is this � that for the requirement of public safety to be satisfied, civil authority must have either fallen away or proved inadequate for the emergency, the courts are actually closed, and it is impossible to administer criminal justice according to law, and that where rebellion really exists, there is a necessity to furnish a substitute for the civil authority, thus overthrown, and as no power is left but the military, it is allowed to govern until the laws can have their free course. For martial rule can never exist where the courts are open and in the unobstructed exercise of their jurisdiction." The petitioners cite Arnold, in his article, "The Rationale of Martial Law" (15 ABAJ 551).

"Martial law relates to the domestic territory in a condition of insurrection or invasion, when the Constitution and its civil authorities . . . HAVE BEEN RENDERED INOPERATIVE OR POWERLESS by the insurrectionary or invading forces."cralaw virtua1aw library

After citing the foregoing, petitioners asked this Court to take judicial notice of the following:chanrob1es virtual 1aw library

1. Congress was in session and was in the unobstructed exercise of its functions when martial was proclaimed;

2. The Supreme Court, the Court of Appeals, the Courts of First Instance in the Greater Manila Area � where petitioners had been arrested � indeed, even the municipal and city courts were, at the time martial law was publicly announced, open and are still open and functioning throughout the length and breadth of the land; no proof has been shown that any court has been rendered "unable to administer justice," due to the activities of the rebels. Ironically, it is General Order No. 3, as amended by, General Order No. 3-A, issued pursuant to Proclamation No. 1081, that seeks to render them powerless, in many cases, to administer justice, according to the Constitution and the laws of the land;

3. The Constitutional Convention � the so-called "fourth branch" � had been holding its sessions when martial law was proclaimed. Despite martial law, or probably because of it, it decided to work with greater efficiency, it has just finished its work. A "plebiscite" under martial law is being called on January 15, 1973, so the people can "ratify" the proposed Constitution;

4. In the Greater Manila Area, contrary to the speech of September 23, 1972, no university, college, or school was closed due to the activities of the rebels;

5. All instruments of mass communications were in operation up to September 22, 1972. The next day, free speech and free press � the very heart of free inquiry and the search for truth � became nothing but empty memories. Only the "safe newspapers and radio-tv stations" were allowed to open. Political dissent was suppressed;

6. All agencies and instrumentalities of government, national as well as local, were functioning when martial law was proclaimed. By General Order No. 3, they were ordered "to continue to function under their present officers and employees and in accordance with existing laws . . ."cralaw virtua1aw library

The petitioners state why Proclamation No. 1081 is unconstitutional:chanrob1es virtual 1aw library

These indisputable facts which require no introduction of proof � because they all fall within the scope of judicial notice, under Rule 129 of the Rules of Court � show that at the time martial law was declared there was absolutely no justification for it, in fact and in law. Hence, Proclamation No. 1081 is unconstitutional and void, because:chanrob1es virtual 1aw library

1. It is predicated on the existence of "the magnitude of an actual war" or an "actual status of war" that does not exist;

2. It is allegedly based on the "status of belligerency" which no State in the world, not even the Philippines, has extended to the rebels or the lawless elements described in the Proclamation;

3. Although there may be rebellion in some remote places, as in Isabela, there is no justification for the declaration of martial law throughout the Philippines, since

a) no large scale, nationwide rebellion or insurrection exists in the Philippines;

b) public safety does not require it, inasmuch as no department of government, no government agency or instrumentality, and even more important, no civil court of appellate or original jurisdiction was, at the time martial law was proclaimed, unable to open or function, or has been, at any time since the incumbent President came into power "rendered powerless or inoperative" due to the activities of the rebels or the lawless elements described in the Proclamation;

c) The President himself declared that the armed forces can handle the situation without "utilizing the extraordinary powers of the President" (January 1, 1972), that long before martial law was proclaimed, the Government had the "rebellion" and the "rebels and their supporters" under control, as the Army knew the step-by-step plot of the Communists and had an hour-by-hour monitoring of the movements of the subversive leaders.

d) The problem in the Greater Manila Area � where petitioners were seized and arrested � was, at the time martial law was proclaimed, plain lawlessness and criminality.

As the President described the situation in his speech of September 23, 1972:chanrob1es virtual 1aw library

Lawlessness and criminality like kidnapping, smuggling, extortion, blackmail, gun-running, hoarding and manipulation of prices, corruption in government, tax evasion perpetrated by syndicated criminals, have increasingly escalated . . .

The petitioners pointed out that neither any of these or a combination of all, constitute either the occasion or the justification for the imposition of martial rule. Otherwise, since these crimes have always been with us for many years, we would never see the end of martial law in this country.

It is argued that since Proclamation No. 1081 is unconstitutional and void, the General Orders, issued in pursuance thereto and by way of its implementation, must inevitably suffer from the same congenital infirmity.

(e) Authorities cited by the Parties �

Petitioners and respondents alike premise their arguments on the martial law provision of the Constitution. Both cite decisions of foreign courts and treatises of foreign writers expounding on martial law. And yet, completely divergent opinions on the meaning of the provision is the result.

Martial law is based on a law of necessity and is utilized as a measure of governmental self-defense. It is, therefore, an inherent power. It needs no constitutional or statutory grant before it may be wielded. As the petitioners state (Addendum, pages 80-81), it is a recognized institution in the constitutional systems of both England and America, notwithstanding lack of express provisions on martial law in written constitutions.

We accept judicial decisions of these countries as highly persuasive, if not as precedents. The absence of express recognition in the constitutions or statutes of these countries helps explain why there is disagreement on a precise definition. More important, it explains why the necessity, scope, and extent of martial law proclamations have to be determined by the regular courts and why the decisions are, themselves, conflicting. The Constitutions and statutes are silent or different from each other. The Courts have been forced to go to the common law and to general principles of Constitutional Law to look for bases of power and to resolve problems arising out of states of martial law. The various authorities cited by both petitioners and respondents in their pleadings and oral arguments undoubtedly have valuable worth and applicability. They are very helpful in resolving the momentous issues raised by the petitions. The fact remains, however, that they deal with an exercise of power which is undefined. For the United States Supreme Court, the power is not specifically prescribed in the federal Constitution. This has led foreign courts to naturally and logically look for the confining limits and restrictions of ambiguous, cryptic, and perplexing boundaries. Since the power is not defined, the natural tendency is not to describe it but to look for its limits. Anglo-American authorities may assist but should not control because, here, the limits are present and determined by no less than the fundamental law.

In the Philippines, there is an ubiquitous and mandatory guide. The Constitution speaks in clear and positive terms. Given certain conditions, the Philippines or any part thereof may be placed under martial law. To resolve the instant petitions, it is necessary to find out what the Constitution commands and what the express words of its positive provision mean. It is the Constitution that should speak on the circumstances and qualifications of the initiation and use of an awesome emergency power.

(b) More arguments of the Respondents:chanrob1es virtual 1aw library

According to the respondents, the Constitution plainly provides that the circumstances when martial law may be declared, its scope and its effects are beyond judicial examination. The respondents contend that this Court lacks jurisdiction to take cognizance of the instant petitions for habeas corpus. The Solicitor General has consistently pleaded throughout these proceedings that the questions involved are political and non-justiciable. He states that the President, sworn to defend the Constitution and the Republic, proclaimed martial law pursuant to authority expressly conferred by the Constitution. It is argued that his decision is beyond controversion because the Constitution has made it so and that only history and the Filipino people may pass judgment on whether the President has correctly acted in a time of supreme crisis.

(a) More arguments of the petitioners:chanrob1es virtual 1aw library

Petitioners, on the other hand, contend that this Tribunal is the ultimate interpreter of the Constitution. As such, it has the power and duty to declare Proclamation No. 1081 unconstitutional and void because the President has exceeded his powers. It is argued that where basic individual rights are involved, judicial inquiry is not precluded. On the argument that martial law is textually and exclusively committed to the President, the petitioners answer that under the same Constitution, the President may not disable the Courts and oust them, particularly the Supreme Court, of their jurisdiction to hear cases assigned to them by the Constitution and the laws. Petitioners stress that the Court should act now or the time will come when it can no longer act, however, much it may wish to, for it shall have completely lost then the moral force and authority it still possesses and the valid claim it may still have of being independent, fearless, and just.



The respondents’ assertion that the questions raised in these petitions are political and non-justiciable raises a point which is easily misunderstood.

What is a political question?

In Mabanag v. Lopez (78 Phil. 1, 4), this Court recognized the problems in trying to make a definition:jgc:chanrobles.com.ph

"It is a doctrine too well established to need citation of authorities, that political questions are not within the province of the judiciary, except to the extent that power to deal with such questions has been conferred upon the courts by express constitutional or statutory provision. (16 C.J.S., 431). This doctrine is predicated on the principle of the separation of powers, a principle also too well known to require elucidation or citation of authorities. The difficulty lies in determining what matters fall within the meaning of political question. The term is not susceptible of exact definition, and precedents and authorities are not always in full harmony as to the scope of the restrictions, on this ground, on the courts to meddle with the actions of the political departments of the government.

I think it is time for this Court to distinguish between jurisdiction over a case and jurisdiction over the issues raised in that case. It is erroneous to state that when a petition raises an issue which is political in nature, this Court is without jurisdiction over the case. It has jurisdiction.

The Supreme Court has jurisdiction to receive the petition and to find out whether the issues are indeed political or not. A finding of political question is the province of the Court in all cases. A mere allegation of political question does not automatically divest the Court of its jurisdiction. The Court may, therefore, require the parties to the case to prove or refute the existence of a political question. The Court has jurisdiction to receive the pleadings, to listen to the arguments and to make up its mind.

Once the Court, however, finds that the issue is political in nature, it should rule that it has no jurisdiction to decide the issue one way or another. It still renders a decision. It must still state that, according to the Constitution, this matter is not for the judiciary but for the political departments to decide. This is the task We must perform in these petitions. When we decide whether or not the issues are political in nature, We exercise jurisdiction. If We find a political question, We still have jurisdiction over the case but not over the specific issue.

A lot of emotionalism is directed against the Court when it rules that a question is political. It is alleged that the Court has surrendered its powers. The political question, it is said, "applies to all those questions of which the Court, at a given time, will be of the opinion that it is impolitic or inexpedient to take jurisdiction. Sometimes this idea of inexpediency will result from the fear of the vastness of the consequences that a decision on the merits might entail. Sometimes, it will result from the feeling that the Court is incompetent to deal with the type of question involved. Sometimes, it will be induced by the feeling that the matter is too high for the Courts" (Finkelstein, "Judicial Self Limitation", 38 Harvard Law Review 328, 344) The political question doctrine is, therefore, described as a doctrine of judicial opportunism. Like Pontius Pilate, the Court is accused of tossing the hot issue for others to determine. It is charged with washing its hands off a difficult or explosive situation. A political question, it is alleged, is nothing more than any question which the Court does not want to decide. It is understandable why courts should have a seemingly natural or spontaneous tendency to reject a political question argument. The charge that the Court is abdicating a function or running away from responsibility can strike to the very marrow of any judge’s feelings.

I do not share these misgivings. I positively reject them as wrong impressions. This Court is discharging a constitutional duty when it determines that an issue is a political question. Because of its implications, however, this is a fact which the Court must also explain in the simplest terms possible.

The Constitution defines and limits the powers entrusted by the sovereign people to their government. First, it declares the boundaries where the powers of government cannot go further because individual rights would be impaired. Second, it divides the powers given to the entire government among the various departments and constitutional bodies. Its provisions are, therefore, both a grant and a limitation of power.

In other words, the Constitution may he likened to a map. This map shows how the powers of sovereignty. have been distributed among the departments of government. It shows where there is a sharing of powers or where checks and balances may be found. It also shows where there is a dividing line between government Power and individual liberty . In plainer language, the constitutional map, like any other map, carries different boundaries. The boundaries are the delimitations of power.

The function of the Court is to fix those boundaries whenever encroachments are alleged. In doing so, the Court interprets the constitutional map. It declares that this power is executive, that power is legislative, and that other power is judicial. It may sometimes state that a certain power, like impeachment, is judicial in nature. Nonetheless, the constitutional map has included impeachment within the boundaries of legislative functions. The Court has to declare that the judicial power of impeachment is exclusively for the legislature to exercise.

This task of allocating constitutional boundaries, I must repeat, is given to this Court. It cannot be divested of this jurisdiction. It cannot yield this power.

However, when the Court finds that a certain power i8 given by the Constitution to a co-equal department, it must defer to the decision of that department even if it appears to be seemingly judicial. It should declare that the Constitution has vested this determination in the executive or the legislature. The Court must, therefore, state that it cannot go any further. The sovereign people through the Constitution have drawn a boundary which this Court has ascertained and which it must respect. When the Court finds a political question, it is not, therefore, shirking or avoiding a duty. It is, in fact, complying with its duty. Much as it wants to go into the issues and decide the questions, it has to decline. The Constitution has given the power of determination to another department. As interpreter of the Constitution, the Court has to lead in respecting its boundaries.

If we examine this Court’s definition of a political question in Tañada v. Cuenco (G.R. No. 10520, February 28, 1957), We find that it conforms to the foregoing explanation.

In short, the term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers to "those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislature or executive branch of the Government." It is concerned with issues dependent upon the wisdom, not legality, of a particular measure. (Emphasis supplied)

This is a determination of constitutional boundaries. The Court has found that the Constitution has assigned a political question to the people through a referendum or either one or both of the political departments.

A more complete definition is found in Baker v. Carr (369 U.S. 186, 7L Ed. 2d 663, 1962), to wit:jgc:chanrobles.com.ph

"It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, which identifies it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarassment from multifarious pronouncements by various departments on one question."cralaw virtua1aw library

Again, the Court makes a determination that the Constitution has vested the making of a final decision in a body other than the Court.



How does the Court determine whether a martial law proclamation is a political question or not? The respondents argue that only the President is authorized to determine when martial law may be proclaimed. The petitioners insist that this Court may examine and nullify the Presidential determination as beyond his constitutional powers.

Has the Constitution vested the power exclusively in the President? Are the petitioners correct or is it the claim of respondents which is valid?

The rule in constitutional construction is to give effect to the intent of the authors. The authors are, first, the framers who were ordered by the sovereign people to represent them in the specific assignment of drafting the fundamental law and second, the people, themselves, who by their ratification confirm what their delegates have wrought and manifested as expressions of the sovereign will.

How, then, do we ascertain the intent of the authors on the grant of martial law powers?

A search for intent must necessarily start within the four corners of the document itself.

. . . The question is one then of constitutional construction. It is well to recall fundamentals. The primary task is one of ascertaining and thereafter assuring the realization of the purpose of the framers and of the people in the adoption of the Constitution.

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we begin. . . . (Tuazon & Co. v. Land Tenure Administration, 31 SCRA 413, 422)

The Constitution is sufficiently explicit in locating the power to proclaim martial law. It is similarly explicit in specifying the occasions for its exercise. "In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he (the President as Commander-in-Chief of all armed forces of the Philippines) may suspend the privileges of the writ of habeas corpusor place the Philippines or any part thereof under martial law."cralaw virtua1aw library

This provision on martial law is found in Article VII of the 1935 Constitution. This Article refers to the Presidency. Section 10, where the provision appears as the second paragraph, is exclusively devoted to powers conferred by the Constitution on the President. This is in sharp contrast to the Constitution of the United States where the suspension of the privilege of the writ of habeas corpusappears, not as a grant of power under Article II on the Executive nor in the first ten amendments constituting their Bill of Rights, but in Article I on the Legislature. It is given not as a grant of power but as a limitation on the powers of the Federal Congress.

It is significant that, as regards the suspension of the privilege of the writ of habeas corpus, the Philippine Constitution treats it both as a grant of power in the article on the Presidency and as a limitation to government action in the article on the Bill of Rights. On the other hand, there is no dual treatment of martial law. There is only a grant of power in Article VII to meet certain grave dangers to the Republic. Nowhere in the Constitution is it treated in terms of limitation.

In J. M. Tuazon & Co., Inc. v. Land Tenure Administration, 31 SCRA p. 413, 423, this Court ruled:jgc:chanrobles.com.ph

"Reference to the historical basis of this provision as reflected in the proceedings of the Constitutional Convention, two of the extrinsic aids to construction along with contemporaneous understanding and the consideration of the consequences that flow from the interpretation under consideration, yields additional light on the matter."cralaw virtua1aw library

Let us, therefore, look at the history of the provision. It is important to be guided by the authors of the Constitution more than by citations from foreign court decisions and quotations from constitutional law writers which petitioners and respondents can seem to unendingly cull to sustain their diametrically opposed positions.

The Philippine Bill of 1902 has no provision on martial law, although it provided:jgc:chanrobles.com.ph

"SECTION 5. . . .

That the privilege of the writ of habeas corpusshall 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, with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist."cralaw virtua1aw library

Both executive and legislative shared in deciding when the privilege of the writ may be suspended.

The Jones Law or Philippine Autonomy Act of 1916 required a similar sharing of power as the Philippine Bill of 1902. Instead of approval of the Philippine Commission, however; it provided that the President of the United States must be notified whenever the privilege of the writ of habeas corpushas been suspended or martial law has been proclaimed.

"SECTION 21. . . . He shall be responsible for the faithful execution of the laws of the Philippine Islands and of the United States operative within the Philippine Islands, and whenever it becomes necessary be may call upon commanders of the military and naval forces of the United States in the Islands, or summon the posse comitatus, or call out the Militia, or other locally created armed forces, to prevent or suppress lawless violence, invasion, insurrection, or rebellion; and he may, in case of rebellion or invasion or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus, or place the islands, or any part thereof, under martial law; Provided, That wherever the Governor-General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts, and circumstances, the President shall have power to modify or vacate the action of the Governor-General." (Emphasis supplied)

The treatment of both martial law and habeas corpusas part of the limitations in the Bill of Rights and as part of the grant of powers of the Chief Executive started with the Jones Law. This organic act also added "imminent danger" as a ground for suspension.

This was the status of our constitutional law on habeas corpusand on martial law when the 1935 Philippine Constitution was drafted. The most learned Philippine lawyers were among the delegates to the 1934 Constitutional Convention. The delegates had before them the Philippine Bill of 1902 requiring approval of the legislature before the Chief Executive may exercise his power. They had before them the provision of the Jones Law qualifying the Governor-General’s power with supervision and control by the President of the United States who may modify or vacate the former’s action. They chose to vest the power exclusively in the President of the Philippines. They expanded the wide scope of his authority by including "imminent danger" as an occasion for its exercise, thus deliberately adopting the Jones Law provision minus the limitation. Their proposal on martial law was overwhelmingly ratified by the people.

The choice was no perfunctory or casual one. It was the product of thorough study and deliberation. While the debates in the 1935 Constitutional Convention centered on habeas corpus, they necessarily apply to martial law because the two are inextricably linked in one and the same provision. The Solicitor General has summarized these deliberations on habeas corpusand martial law.

"As a matter of fact, in the Constitutional Convention, Delegate Araneta proposed the following provisions:chanrob1es virtual 1aw library

‘In case of rebellion, insurrection, or invasion, when the public safety requires it, the National Assembly may suspend the privilege of the writ of habeas corpus. In case the National Assembly is not in session, the President may suspend the privilege of the writ of habeas corpuswith the consent of the majority of the Supreme Court, but this suspension of the privilege of the writ of habeas corpuswill be revoked if the President does not call a special session of the National Assembly within fifteen days from the decree suspending the writ of habeas corpusor if the National Assembly fails to confirm the action of the President within 30 days. (5 J. Laurel, Proceedings of the Philippine Constitutional Convention, 259, (S. Laurel ed. 1966)

"In support of his proposal, Araneta argued, first, that the power to suspend the privilege of the writ of habeas corpusshould be vested in the National Assembly because that power was "essentially" legislative. (Id. 249-50) and second, that in case the National Assembly was not in session, thus making it necessary to vest the power in the President, that the exercise of the power be subject to the concurrence of the Supreme Court and even when the Court has concurred in the decision of the President that the suspension would be effective only for a certain period unless the National Assembly was convened and its ratification was secured. (Id., at 255).

"He was interpellated by various delegates; Delegate Perez and Grageda, especially, were concerned, lest the requirement of securing the concurrence of other branches of government in the decision of the President deprives him of effective means of meeting an emergency. (Id., at 255-56). The Committee on Sponsorship headed by Delegate Sotto opposed the amendment. When finally put to vote, the amendment was rejected. (Id., at 259).

"There are a number of points we should note regarding the proposal. First, the proposal refers only to the suspension of the privilege of the writ of habeas corpus. It did not apparently contemplate the proclamation of martial law. Second, the proposal would vest the power of suspension in the National Assembly and in the President only when the National Assembly is not in session. Third, exercise of the power by the President, is subject to the concurrence of the Supreme Court and the confirmation of the National Assembly.

"The Constitutional Convention must have been aware of the experience of President Lincoln during the American Civil War. They must have been aware of the views expressed then that it was the legislature and not the President who may suspend the privilege of the writ of habeas corpusor proclaim martial law. Surely, they were cognizant of the vast implications incident to a suspension of the privilege of the writ of habeas corpusand more so to the proclamation of martial law. This is reflected in the following records of the proceedings:chanrob1es virtual 1aw library

‘During the debates on the first draft, Delegate Francisco proposed 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 his 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:chanrob1es virtual 1aw library

‘Gentlemen, this phrase is too ambiguous, 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."cralaw virtua1aw library

‘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 corpusalso 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 the corresponding provision under the executive power instead, Delegate Francisco answered:chanrob1es virtual 1aw library

‘Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have mentioned. But I say, going to the essence and referring exclusively to the necessity of including the words, of imminent danger or one or the other, I wish to say the following: that it should not be necessary that there exist a rebellion, insurrection, or invasion in order that habeas corpusmay 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 the habeas corpus.

‘When put to a 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, 180-181)"

"But the Convention voted for a strong executive, and wrote Article VII, Section 10 (2) into the Constitution.

"The conferment of the power in the President is clear and definite. That the authority to suspend the privilege of the writ of habeas corpusand to proclaim martial law was intended to be exclusively vested in the President, there can be no doubt. (Memorandum for Respondents dated November 17, 1972, pp. 11-14)"

The only conclusion I can make after secertaining the intent of the authors of the Constitution is that the power to proclaim martial law is exclusively vested in the President. The proclamation and its attendant circumstances therefore form a political question.

Unless this Court decides that every act of the executive and of the legislature is justiciable there can be no clearer example of a political question than Proclamation No. 1081, It is the exercise by the highest elective official of the land of a supreme political duty exclusively entrusted to him by the Constitution. Our people have entrusted to the President through a specific provision of the fundamental law the awesome responsibility to wield a powerful weapon. The people have entrusted to him the estimation that the perils are so ominous and threatening that this ultimate weapon of our duly constituted government must be used.

The Supreme Court was not given the jurisdiction to share the determination of the occasions for its exercise. It is not given the authority by the Constitution to expand or limit the scope of its use depending on the allegations of litigants. It is not authorized by the Constitution to say that martial law may be proclaimed in Isabela and Sulu but not in Greater Manila. Much less does it have the power nor should it even exercise the power, assuming its existence, to nullify a proclamation of the President on a matter exclusively vested in him by the Constitution and on issues so politically and emotionally charged. The Court’s function in such cases is to assume jurisdiction for the purpose of finding out whether the issues constitute a political question or not. Its function is to determine whether or not a question is indeed justiciable.

Petitioners want this Court to examine the bases given by the President in issuing Proclamation No. 1081. They want the Court to find or to take judicial notice of the absence of an insurrection or rebellion � of the absence of an imminent danger thereof. Petitioners would have this Court dispute and nullify the findings of facts of the President himself in a matter that is peculiarly executive in nature.

Why should We honor the President’s findings?

In cases where the issues are indisputably judicial in nature, the findings of the President are still given utmost respect and deference. In the matter of the declaration of martial law, a power that is exclusively vested in the President, may the Court differ with the findings? No, because as We have already stated, the valid reason for this exclusive grant of power is that the President possesses all the facilities to gather the required data and information and has a broader perspective to properly evaluate them, better than any facility and perspective that the Court can have.

At what state in an insurrection or how serious and manifest should subversive activities become before the Court decides the particular point when martial law may be proclaimed? The petitioners, relying on the classic stages of governmental overthrow as experienced by pre-World War II examples, would wait until all civil courts are closed and the country is in complete chaos. Petitioners do not realize that long before the courts are closed, the President would have been killed or captured and the enemy irrevocably entrenched in power. The authors of the Constitution never envisioned that the martial law power so carefully and deliberately included among the powers of the President would be withheld until such time as it may not be used at all.

It is my firm view that the decision to proclaim martial law is an exclusive function of the President. If he finds that invasion, insurrection, or rebellion or imminent danger of any of the three is present, such finding is conclusive on the Court. If he finds that public safety requires the entire country should be placed under martial law, that finding is conclusive on the Court. In the exercise of such an emergency power intended for the supreme and inherent right of self-defense and self preservation, the Constitution cannot be read to mean otherwise.

In Lansang v. Garcia (42 SCRA 448, 480) this Court stated that "in the exercise of such authority (to suspend the privilege of the writ of habeas corpus), the function of the Court is merely to check � not to supplant � the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act."cralaw virtua1aw library

I do not see how, both from the legal and practical points of view, the Court can check the President’s decision to proclaim martial law. The same may, perhaps, be done as regards a suspension of the privilege of the writ of habeas corpusalthough I reserve a more definitive statement on that issue when a case squarely in point on the matter is raised before Us. However, martial law poses entirely different problems. A proclamation of martial law goes beyond the suspension of the privilege of the writ of habeas corpus, whose effects are largely remedied with the release of detainees.

Upon proclaiming martial law, the President did not limit himself to ordering the arrest and detention of the participants and others having a hand in the conspiracy to seize political and state power. Under martial law, the President ordered the takeover or control of communications media, public utilities, and privately owned aircraft and watercraft. Foreign travel was restricted. Curfew was imposed all over the country. A purge of undesirable government officials, through resignations or summary investigations, was effected. The entire executive branch of government was reorganized. A cleanliness and beautification campaign, with martial law sanctions to enforce it, was ordered. This was only the beginning.

Consequences of Proclamation No. 1081 are many and far-reaching. They permeate every aspect and every activity in the life of the people. A court decision is not needed nor is it the proper place to enumerate them. Most obvious, of course, are the President’s acts of legislation on the very broad range of subjects that Congress used to cover. As early as November 8, 1972, the petitioners prepared a Memorandum stressing this point.

It may be pointed out that since martial law was declared, the President has been exercising legislative power that is lodged by the Constitution in Congress. A good number of the decrees promulgated have no direct relation to the quelling of the disorders caused by the lawless elements. They are aimed at building a New Society, but they cannot be justified as a valid exercise of martial rule. (at page 94)

These implications and consequences of martial law serve to bolster my view that the Constitution never intended that this Court could examine and declare invalid the President’s initial determination. The Constitution did not intend that the Court could, in the detached and peaceful aftermath of successful martial law, reach back and invalidate everything done from the start. That would result in chaos.

I am, of course, aware of the Chicot County Drainage District v. Baxter State Bank (308 U.S. 371, 374) doctrine which this Court adopted in Municipality of Malabang v. Pangandapun Benito, Et Al. (27 SCRA 533, 540):chanrob1es virtual 1aw library

The Courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. (Norton v. Sherlby County, 118 U.S. 425, 442; Chicago, I & L. Ry. Co. v. Hackett, 228 U.S. 559, 566). It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects � with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified."cralaw virtua1aw library

It may be argued that the actual existence of Proclamation No. 1081 is an operative fact and that its consequences should not be ignored.

The operative fact doctrine, however, has no application in this situation where, faced with insurrection and rebellion, the President proclaims martial law. Even assuming that every single member of this Court doubts the President’s findings, We have to consider that the Constitution vests the determination in him. The stakes involved are supreme and the determination must be made immediately and decisively.

There is the possibility that the President has an exaggerated appreciation of the dangers and has over-acted with the use of the awesome measure of martial law. The fact remains, however, that the authors of the Constitution were aware of this possibility and still provided that the power exclusively belongs to him. It would be stretching the plain words of the Constitution if we weigh our personal findings against the official findings of the President. He possesses all the facilities to gather data and information and has a much broader perspective to properly evaluate them. He is performing a function which is, of course, required by the Constitution to be discharged by the President.

And for us to venture into a judicial inquiry on the factual basis of the constitutionality of the martial law proclamation would be to ignore the well-established principle of presidential privilege which exempts the President from divulging even to the highest court of the land facts which if divulged would endanger national security. As a matter of fact, in the latest case on this matter which was that filed against President Richard M. Nixon, although the Supreme Court of the United States ordered the President to produce the tapes of his conversation with some of his aides pursuant to a subpoena for use in a criminal prosecution against one of his aides, because the claim that "disclosures of confidential conversation between the President and his close advisors . . . would be inconsistent with the public interest . . . cannot outweigh . . . the legitimate needs of the judicial process" in a criminal prosecution, the Court, however, made the statement from which we can infer that if President Nixon had only claimed that the tapes contain "military, diplomatic or sensitive national security secrets", it would have sustained the refusal of Nixon to produce them.

". . . However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide."cralaw virtua1aw library

"In this case the President challenges a subpoena served on him as a third party requiring the production of materials for use in a criminal prosecution on the claim that he has a privilege against disclosure of confidential communications. He does not place his claim of privilege on the ground they are military or diplomatic secrets. As to these areas of Art. II duties the courts have traditionally shown the utmost deference to presidential responsibilities. In C. & S. Air Lines v. Waterman Steamship Corp., 333 U. S. 103, 111 (1948), dealing with presidential authority involving foreign policy considerations, the Court said:jgc:chanrobles.com.ph

"The President, both as Commander-in-chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret." Id. at 111.

In the United States v. Reynolds, 345 U. S. 1 (1952), dealing with a claimant’s demand for evidence in a damage case, against the Government, the Court said:chanrob1es virtual 1aw library

‘It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.’

No case of the Court, however, has extended this high degree of deference to a President’s generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President’s powers, it is constitutionally based."cralaw virtua1aw library

(United States, Petitioner, v. Richard M. Nixon, President of the United States, Et Al.; Richard M. Nixon, President of the United States, Petitioner, v. United States; July 24, 1974; Nos. 73-1766 and 73-1834; Supreme Court of the United States).

It is for the above reasons that, as far as the proclamation is concerned, the Court should revert to the rule in Barcelon v. Baker (5 Phil. 87) and Montenegro v. Castañeda (91 Phil. 886). The only questions which the judiciary should look into are (1) Did the Constitution confer the authority to suspend the privilege of the writ of habeas corpusand proclaim martial law on the President? and (2) Did the President declare that he is acting under such authority and in conformance with it? The authority being exclusively vested in the President, his decision is final and conclusive upon the Court.

Insofar as the President’s decision to proclaim martial law is concerned, it is, therefore, my view that under the Constitution, the Supreme Court has no authority to inquire into the existence of a factual basis for its proclamation. The constitutional sufficiency for the proclamation is properly for the President alone to determine.



It should be noted that Proclamation No. 1081 is not a mere conclusion that there is insurrection and rebellion in the country. The President did not limit himself to a curt and laconic declaration that on the basis of his findings, there is insurrection or a rebellion and that he has proclaimed martial law.

Proclamation No. 1081 specifies in twenty-six (26) printed pages the various findings which led to its promulgation. The conspiracy to overthrow the government, the rapidly expanding ranks of the conspirators, the raising of funds and materials under centralized direction, the maintenance of a rebel army, the massive propaganda campaign, the acts of sabotage and armed insurrection or rebellion, the previous decision of this Court, the lawlessness and disorder in the country, the violent demonstrations led by Communist fronts, the armed clashes between rebels and government troops, the active moral and material support of a foreign power, the importation of firearms and war material by rebels, the presence of a well-scheduled program of revolutionary action, the organization of liquidation squads, the serious disorder in Mindanao and Sulu, the activities of the Mindanao Independence Movement, the thousands killed and hundreds of thousands of injured or displaced persons, the inadequacy of simply calling out the armed forces or suspending the privilege of the writ of habeas corpus, the alarmingly rapid escalation of rebel or subversive activities, and other evidence of insurrection or rebellion are specified in detailed manner.

The findings of the President are given in a positive, detailed, and categorical form. As a matter of fact, subsequent events, related to the Court in a series of classified briefings made to it by the Army, the last one being on August 15, 1974, confirm the over-all validity of the President’s basis. There is constitutional sufficiency for his conclusion that martial law be proclaimed. Proclamation No. 1081 does not, therefore, suffer any constitutional infirmity of arbitrariness, granting that this test can be applied to it.

It appears proper, at this point, to elucidate further on the test of arbitrariness.

The Court’s decision in Lansang v. Garcia (42 SCRA 448) has been interpreted and, to my mind, misunderstood by many people to mean that the Court had completely reversed Barcelon v. Baker and Montenegro v. Castaneda. There are, of course, certain statements in the decision that give rise to this conclusion. For instance, the Court stated that the weight of Barcelon v. Baker, as precedent, is diluted by two factors, namely, (a) it relied heavily upon Martin v. Mott (6 L. ed 537) involving the U S President’s power to call out the militia and (b) the fact that suspension of the privilege of the writ of habeas corpuswas by the American Governor-General, the representative of the foreign sovereign The Court stated that in the Barcelon case it went into the question � Did the (Governor-General act in conformance with the authority vested in him by the Congress of the United States? In other words, the Court stated that it made an actual determination whether or not the Chief Executive had acted in accordance with law. The Court also added that in the Montenegro case, it considered the question whether or not there really was a rebellion. The Court reviewed American jurisprudence on suspension of the privilege It stated that the tenor of the opinions, considered as a whole, strongly suggests the Court’s conviction that the conditions essential for the validity of proclamations or orders were in fact present It stated that whenever the American courts took the opposite view, it had a backdrop permeated or characterized by the belief that said conditions were absent.

In truth, however, the decision in Lansang v. Garcia does not state that the Court may conduct a full examination into the facts which led the President to issue the proclamation. The Court’s decision categorically asserts that the examination of presidential acts by the Court is limited to arbitrariness. The Court accepted the view �

. . . 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 endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.

The Court adopted, as the test of validity, the doctrine in Nebbia v. New York, 291 U. S. 502 �

. . . 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 oficio . . . With the wisdom of the policy adopted, with the adequacy or practicality of the law enacted to forward it, the courts are both incompetent and unauthorized to deal . . .

For purposes of comparison and emphasis, the Court, in Lansang, v. Garcia, went into the judicial authority to review decisions of administrative bodies or agencies. It stated that the reviewing court determines only whether there is some evidentiary basis for the consisted administrative findings and does not undertake quantitative examination of supporting evidence. Therefore, the Court stated that it interferes with an administrative finding only if there is no evidence whatsoever in support thereof and said finding is actually arbitrary, capricious, and obviously unauthorized. The Court ruled that this approach of deferring to the findings of administrative bodies cannot even be applied in its aforesaid form to test the validity of an act of Congress or of the Executive. The presumption of validity is of a much higher category. The Court emphasized that the co-equality of coordinate branches of the government under our constitutional system demands that the test of validity of acts of Congress and of those of the Executive should be fundamentally the same. And this test is not correctness but arbitrariness.

It follows, therefore, that even if I were to subscribe to the view that Lansang v. Garcia should not be categorically reversed as erroneous doctrine, my decision would be the same. Even under Lansang v. Garcia, martial law is valid.

There is nothing arbitrary in the decision to promulgate Proclamation No. 1081. It is not unconstitutional.



The continuation of the state of martial law and the resulting continued restrictions on individual liberties are, of course, serious aspects of the main issue with which this Court is concerned.

In fact, this is the more difficult question � The President having acted upon an initial and positive finding that martial law is necessary, may the Court inquire into the bases for its duration or the need for its continued imposition?

Towards the end of this separate opinion, I answer the arguments of the petitioners questioning the effectivity and legality of the new Constitution. It is my unqualified view, as explained later, that this Court in the Ratification Cases declared the new Constitution to be legally in force and effect.

I have to mention this view, at this juncture, because martial law was proclaimed under the old Constitution. However, its continuation and eventual lifting are now governed by the new Constitution.

The exercise of martial law power may be likened to the jurisdiction of a court. A court may have jurisdiction under an old law but the jurisdiction may be removed or modified by a new statute. In other words, is the continuing state of martial law valid under the new Constitution? Is it also a political question under the present Charter?

Article IX of the new Constitution on the Prime Minister and the Cabinet provides:jgc:chanrobles.com.ph

"SEC. 12. The Prime Minister shall be commander-in-chief of ail 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 privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."cralaw virtua1aw library

It should be noted that the above provision is a verbatim reiteration of Article VII, Section 10, Paragraph (2) of the old Constitution.

What was the intent of the framers in adopting verbatim the provision found in the old Constitution?

At this point, modesty and prudence should inhibit me from advancing my own views as the only member of this Tribunal who was a delegate to the 1911 Constitutional Convention. In Vera v. Avelino (77 Phil. 192), this Court stated �

"The theory has been proposed � modesty aside � that the dissenting members of this Court who were delegates to the Constitutional Convention and were "co-authors of the Constitution" "are in a better position to interpret" that same Constitution in this particular litigation.

"There is no doubt that their properly recorded utterances during the debates and proceedings of the Convention deserve weight, like those of any other delegate therein. Note, however, that the proceedings of the Convention "are less conclusive of the proper construction of the instrument than are legislative proceedings of the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we are endeavoring to arrive at the intent of the people through the discussions and deliberations of their representatives." (Willoughby on the Constitution, Vol. I, pp. 54, 55.)

"Their writings (of the delegates) commenting or explaining that instrument, published shortly thereafter, may, like those of Hamilton, Madison and Jay in The Federalist � here in the Philippines, the book of Delegate Aruego, supra, and of others � have persuasive force. (Op. cit., p. 55.)

"But their personal opinion on the matter at issue expressed during our deliberations stand on a different footing: If based on a "fact" known to them, but not duly established or judicially cognizable, it is immaterial, and their brethren are not expected to take their word for it, to the prejudice of the party adversely affected, who had no chance of rebuttal. If on a matter of legal hermeneutics, their conclusions may not, simply on account of membership in the Convention, be a shade better, in the eyes of the law. There is the word "deference" to be sure. But deference is a compliment spontaneously to be paid � never a tribute to be demanded.

"And if we should (without intending any desparagement) compare the Constitution’s enactment to a drama on the stage or in actual life, we would realize that the intelligent spectators or readers often know as much, if not more, about the real meaning, effects or tendencies of the event, or incidents thereof, as some of the actors themselves, who sometimes become so absorbed in fulfilling their emotional roles that they fail to watch the other scenes or to meditate on the larger aspects of the whole performance, or what is worse, become so infatuated with their lines as to construe the entire story according to their prejudices or frustrations. Perspective and disinterestedness help certainly a lot in examining actions and occurrences.

"Come to think of it, under the theory thus proposed, Marshall and Holmes (names venerated by those who have devoted a sizeable portion of their professional lives to analyzing or solving constitutional problems and developments) were not so authoritative after all in expounding the United States Constitution � because they were not members of the Federal Convention that framed it! (pp. 215-216)"

I wish to follow the example, however, of my distinguished colleague, Mr. Justice Calixto O. Zaldivar in Philippine Constitution Association v. Mathay (18 SCRA 300) where, with characteristic humility, he stated in a concurring opinion �

"My opinion in this regard is based upon a personal knowledge of how the constitutional proviso, Article VI, Section 14 of the Constitution, which is now in question, became a part of our present Constitution. It was the Second National Assembly which amended our original Constitution. I was a humble Member of the Second National Assembly, representing the province of Antique.



"I still have vivid recollections of the important points brought up during the deliberations in caucus over proposed amendments and of the agreements arrived at. I remember too the influences that worked, and the pressures that were brought to bear upon the Assemblymen, in the efforts to bring about agreements on very controversial matters and thus secure the insertion of the desired amendments to the Constitution. The discussions on the proposed amendments affecting the legislative branch of the government were specially of interest to us then because we were in some way personally affected, as most of us were interested in running for re-election.

"It is not my purpose here to impose on anyone my recollections of matters that were brought up during our caucuses then, but I only wish to emphasize the fact that my concurring opinion in the decision of the case now before Us has for its basis my honest and best recollections of what had transpired or what had been expressed, during the caucuses held by the Members of the Second National Assembly in the deliberations which later brought about the 1940 amendments.



"I have endeavored to make a discourse of facts as I know them, because I sincerely believe that the interpretation, embodied in the opinion penned by my esteemed colleague, Mr. Justice J.B.L. Reyes, of the pertinent provision of Article VI, Section 14 of our Constitution is in consonance with the facts and circumstances as I remember them, and as I know them. As I have stated at the early part of this concurring opinion, it is not my purpose to impose on anyone my recollection of what transpired, or of what had been discussed about, or of what had been agreed upon, by the Members of the Second National Assembly during the deliberations which brought about the 1940 amendments to our Constitution. My perception and my memory are as frail as those of any other human being, and l may have incurred myself in error. It just happened that the facts and the circumstances that I have herein narrated, as I remember them, have engendered in my mind an opinion, nay a conviction, which dovetails with the opinion of my illustrious colleague that has penned the opinion for the majority of the Court in this case." (at pp. 316, 317 and 327-328)

Justice Zaldivar’s recollections on the intent of the Second National Assembly meeting as a constituent body in 1940 are most helpful. There are no existing records of the deliberations on the Article VI, Section 14 amendment to the 1935 Constitution. The amendment discussions and debates which took place during legislative caucuses are unrecorded and this Court has Justice Zaldivar to thank for his recollections.

It is in this spirit that I venture my own recollections. I am also fairly certain that, when the proceedings of the 1971 Constitutional Convention are published, my observations will be sustained. When the last Constitutional Convention approved the New Constitution on November 29, 1972, the delegates were aware of pre-convention proposals to subject the exercise of the power by the Executive to judicial inquiry. Studies on the wisdom of having a joint exercise of the power by the Executive and the Legislature were before the delegates. (U.P. Law Center Constitution Revision Project, 1970, pp. 104-108) There were even constitutional law scholars who questioned the power altogether and wanted it removed. They claimed that whether or not martial law is in the Constitution, it will be declared when absolutely necessary and, therefore, anticipating its use through a constitutional provision serves no useful purpose.

The delegates were fully aware of the Government stand on the habeas corpusand martial law provision. The Lansang v. Garcia decision was fairly recent. The powers of the Chief Executive were extensively debated. The delegates knew that in the Lansang v. Garcia proceedings, the Solicitor General had consistently and forcefully argued that Barcelon v. Baker and Montenegro v. Castañeda were correct interpretations of the President’s power to suspend the privilege of the writ of habeas corpusor place the Philippines or any part thereof under martial law.

More significant is the fact that when the new Constitution was finalized and the draft corrected and approved prior to submission to the people, we were already under a state of martial law. The petitioners had been arrested and various petitions filed. In fact, petitioner E. Voltaire Garcia II included in his petition the argument that his detention pursuant to Proclamation No. 1081 deprived his constituency of their representation in the Constitutional Convention. The delegates were aware that Proclamation No. 1081 was challenged before this Court and that the Solicitor General’s answer to all the petitions was invariably the doctrine of political question.

If it was the intent of the Constitutional Convention to subject the Prime Minister’s exercise of the power to judicial inquiry and/or control, the provision on martial law would have been accordingly amended. In fact, during the deliberations of the Committees on Civil and Political Rights and Executive Power, there were proposals that the power to proclaim martial law be subjected to control, confirmation, or reversal by Congress or the Supreme Court, but the Convention did not accept any of these proposals and decided to simply reiterate the earlier provision.

It would be enlightening for us to peruse the pertinent portions of the proceedings of the Committee on Civil and Political Rights and Executive Power, and I quote:chanrob1es virtual 1aw library



PRESENT

Chairman: Vice Chairman:chanrob1es virtual 1aw library
Delegate De la Serna Delegate Abueg

Members:chanrob1es virtual 1aw library

1. Delegate Abad 9. Delegate Pepito
2. Delegate Badelles 10. Delegate Reyes C.
3. Delegate Garcia L. P. 11. Delegate Santillan
4. Delegate Gunigundo 12. Delegate Sevilla
5. Delegate Guzman V. 13. Delegate Sumulong
6. Delegate Laggui 14. Delegate Veloso I.
7. Delegate Mendiola 15. Delegate Zafra
8. Delegate Opinion

COMMITTEE ON EXECUTIVE POWER

PRESENT

Chairman: Vice Chairman:chanrob1es virtual 1aw library
Delegate Espina Delegate Exmundo

Members:chanrob1es virtual 1aw library

1. Delegate Corpus 3. Degate Santillan
2. Delegate Garcia L.M. 4. Delegate Zafra

Non-Members:chanrob1es virtual 1aw library

1. Delegate Benzon 5. Delegate Mastura
2. Delegate Calderon C. 6. Delegate Rosales
3. Delegate Caliwara 7. Delegate Yancha
4. Delegate Castillo

Guest:chanrob1es virtual 1aw library

Justice Enrique Fernando

OPENING OF THE MEETING

1. At 9:50 a.m., Chairman Victor De la Serna called the meeting to order.

2. Upon certification of the Secretary, the Chair announced the existence of a quorum.

3. The Chair then announce that the Committee has furnished the body resolutions regarding the suspension of the privilege of the writ of habeas corpus. The Chair mentioned six Resolutions Numbered 176, 260, 531, 1415, 239 and 2394.

4. The Chair further-said that the resolutions can be grouped into three schools of thought � the first, refers to the absolute prohibition against suspension of the privilege of the writ of habeas corpusby any authority in any and all events; the second supports the theory that it may be suspended by the President with the concurrence of Congress or the Supreme Court; and the third, refers to the removal of the power to suspend from the President and transfer the same to the Supreme Court.

5. The Chair then introduced to the members the guest speaker, Justice Enrique Fernando of the Supreme Court of the Philippines. He expressed few words of welcome to the Justice in behalf of the two Committees conducting the public hearing.

6. Justice Fernando started his remarks by clarifying that he would only answer questions that will not conflict with his role as Justice of the Supreme Court, since there was a pending case before the said Court where the Power of the President to suspend the writ of habeas corpusis placed at issue. He said that he considered the privilege of the writ of habeas corpusas the most important human right. He is of the view that it might be preferable if the Bill of Rights make it clear and explicit that at no time and under no circumstances should the privilege of the writ be suspended. He clarified that even if this power to suspend the privilege of the writ were removed from the President, he still has enough powers to prevent rebellion, sedition, insurrection or imminent danger thereof because of his power to call the armed forces in case the need for it arises.

7. The Chair asked the first question to Justice Fernando. Because the Justice said that it was not necessary to grant the President the power to suspend the writ since Congress can always pass a law that would lengthen the period of detention of prisoners, the Chair asked if it would not be very cumbersome for Congress to enact such a law in times of national emergency.

8. Justice Fernando, in answer to the Chair’s query, said that Congress can pass a law to that effect without a national emergency.

9. In answer to question propounded by Delegate Ceniza, Justice Fernando said in 1951 in the Hernandez case he expressed the opinion that even if the privilege of the writ were suspended, the right to bail could still be availed of. He admitted, however, that up to now there is no clear-cut ruling on the matter. He also said that the President, should not have the sole power to declare Martial Law.

10. Delegate Mendiola also asked Justice Fernando who would determine the circumstances that would warrant the detention of prisoners for a longer period than what is now provided under the Revised Penal Code. The Justice answered that if the prisoner is held for crimes against public order, then the ordinary rules of criminal law will govern. The arresting authorities, in collaboration with the Fiscal, will determine said circumstances.

11. Delegate Laggui asked Justice Fernando whether he would still deny the power to suspend the writ to the President if the Convention writes into the Constitution safeguards against abuse of said power. The Justice said he would still say that the power be denied the President because he considers the privilege of the writ of habeas corpusas the most important human right.

12. Delegate Gunigundo interpellated the Justice and asked whether the latter would favor preventive detention of political prisoners or political offenders. The Justice said we should follow the Constitutional Provisions regarding probable cause, and the rights of the accused should always be respected.

13. Delegate Santillan asked Justice Fernando whether he would favor the proposal to delete the phrase "imminent danger thereof" and to limit the suspension of the writ from 10 to 15 days unless Congress or the Supreme Court would extend the same. Justice Fernando said, since he was for the denial of the power to suspend the writ, anything less than that would not be in consonance with his stand.

14. Delegate Zafra asked Justice Fernando if it would not be dangerous for a President to declare Martial Law because if he did, the military might take over the government and topple down the President and even Congress, thereby establishing military dictatorship. Justice Fernando said that the danger exists.

15. Delegate Exmundo interpellated Justice Fernando and asked the latter what the President of the Philippines should have done instead of suspending the privilege of the writ of habeas Corpus, considering the chaos and turmoil that prevailed prior to the suspension. The Justice said that since it is the duty of the President to faithfully execute the laws, he should and he could have called out the armed forces to suppress insurrection, invasion, and rebellion.

16. Others like Delegates Mastura, Adil, Guzman, Pepito, Veloso, Bengzon, Leviste (O.), and Ceniza interpellated Justice Fernando. The Chair then thanked the Justice for his enlightening speech. He expressed the hope that at some future time the Justice would again favor the Committee with his appearance so that the members could propound more questions.

ADJOURNMENT OF MEETING

17. The meeting was adjourned at 12 noon

PREPARED BY:chanrob1es virtual 1aw library

HONORABLE MACARIO CAMELLO

Typed by: Cynthia B. Arrazola

Proofread by: E. de Ocampo/V. M. Umil



CIVIL AND POLITICAL RIGHTS

PRESENT

Chairman: Vice Chairman:chanrob1es virtual 1aw library
Delegate De la Serna Delegate Abueg

Members:chanrob1es virtual 1aw library

1. Delegate Abalos E. 9. Delegate Opinion
2. Delegate Abad 10. Delegate Padua C.
3. Delegate Aruego 11. Delegate Pepito
4. Delegate Calderon J. 12. Delegate Reyes
5. Delegate Gunigundo 13. Delegate Santos
6. Delegate Guzman 14. Delegate Siguion Reyna
7. Delegate Laggui 15. Delegate Zafra
8. Delegate Mendiola

Non-Members:chanrob1es virtual 1aw library

1. Delegate Adil 6. Delegate Carcia L.
2. Delegate Azcuna 7. Delegate Molina
3. Delegate Claver 8. Delegate Rama
4. Delegate De Pio 9. Delegate Seares
5. Delegate Garcia E 10. Delegate Tupaz D

Guest:chanrob1es virtual 1aw library

Senator Jose W. Diokno

ABSENT

Members:chanrob1es virtual 1aw library

1. Delegate Aldeguer 8. Delegate Guiao
2. Delegate Badelles 9. Delegate Mastura
3. Delegate Catubig 10. Delegate Purisima
4. Delegate Ceniza 11. Delegate Santillan
5. Delegate De la Paz 12. Delegate Sevilla
6. Delegate Falgui 13. Delegate Sumulong
7. Delegate Fernandez 14. Delegate Veloso I

EXECUTIVE POWER

PRESENT

Chairman:chanrob1es virtual 1aw library

Delegate Espina

Members:chanrob1es virtual 1aw library

1. Delegate Alano 12. Delegate Nuguid
2. Delegate Astilla 13. Delegate Olmedo
3. Delegate Barrera 14. Delegate Piit
4. Delegate Britanico 15. Delegate Ramos
5. Delegate Cabal 16. Delegate Sagadal
6. Delegate Corpus 17. Delegate Saguin
7. Delegate Flores A. 18. Delegate Sambolawan
8. Delegate Garcia L.M. 19. Delegate Sanchez
9. Delegate Gonzales 20. Delegate Tocao
10. Delegate Juaban 21. Delegate Velez
11. Delegate Mutuc 22. Delegate Yñiguez

ABSENT

Vice Chairman:chanrob1es virtual 1aw library

Delegate Exmundo

Members:chanrob1es virtual 1aw library

1. Delegate Araneta S. 8. Delegate Nepomuceno
2. Delegate Davide 9. Delegate Santillan
3. Delegate Duavit 10. Delegate Serrano
4. Delegate Gaudiel 11. Delegate Sinco
5. Delegate Liwag 12. Delegate Trillana
6. Delegate Luna 13. Delegate Yap
7. Delegate Mariño 14. Delegate Zosa

OPENING OF MEETING

1. At 9:30 a.m., Chairman Victor De la Serna called the meeting to order and declared the existence of a working quorum.

2. Chairman Gerardo S. Espina stated that it was a joint hearing of the Committee on Civil and Political Rights and the Committee on Executive Powers.

3. The Chair confirmed the statement of Chairman Espina and further stated that it was the second joint hearing of the two Committees, and introduced Senator Jose W. Diokno, guest speaker for the hearing.

4. Senator Diokno thanked the joint Body for giving him an opportunity to discuss with them the power to suspend the privilege of the writ of habeas corpusand the power to declare martial law. To be able to resolve the problem, he propounded the questions: (i) should the President have the power to suspend the privilege of the writ of habeas corpus, (2) assuming he was given the power, under what circumstances should he be allowed to exercise it, and (3) what safeguards should be placed upon the exercise of that power. He surmised that in his opinion, if the only legal basis for the grant of the power is to bide time to be able to bring persons to court for it to decide on the matter, as such time is always available to the government, he saw no reason in suspending the privilege of the writ of habeas corpus, since the same objective can be attained by the imposition of martial law, which is not a graver step and is not gravely abused in the practical point of view that no President will declare martial law unless he can have the armed forces agree with him that there is actual invasion, rebellion or insurrection. He stated that the present Constitution only allowed the suspension of the privilege in cases of extreme emergency affecting the very sovereignty of the State, which in his belief, is only in cases of invasion, rebellion or insurrection. He did not agree that there should be a safeguard provided, prior to the issuance of the proclamation suspending the privilege of the writ, but rather after the writ has been suspended, by requiring either the courts or Congress to pass upon the necessity of the suspension of the writ. He dissented with the idea that there should be a definite time period for its validity, because it is difficult to determine what should be an adequate period, however, the Supreme Court or Congress could always be required to act within a definite period on the validity of the suspension which he considered, already a proper safeguard.

He added further that the power to place any part of the national territory Under martial law should be limited to cases only of actual invasion, rebellion or insurrection. However, he strongly favored the deletion of the provision "on imminent danger", which he stressed, is an excuse for a dictatorial President to declare martial law on the ground that there is imminent danger when there is none. There is a possibility, he said, that the armed forces will be broken up, in the sense that one group may favor the President and the other may refuse to allow themselves to be used when there is actually no "imminent danger", so that instead of their helping preserve peace and order, it would provide an occasion for bringing about revolutions.

5. The Chair asked the Senator if the President should declare martial law in places where imminent danger actually exists and the civil authorities are still functioning. He further qualified that is it not the intent of the Constitution in the phrase "martial law" that the civil authorities call upon the military authorities to help them or is it a complete and arbitrary substitution of authority by the military.

5.1 Senator Diokno replied that the President’s action in his personal opinion, is arbitrary and illegal, but who could stop him from doing that. Even the Supreme Court is reluctant to act because it has the army to reckon with. He construed that martial law could be legally exercised only in places where actual fighting exists and the civil authorities are no longer exercising authority, in which case the military can supplant the civil authorities. He added that it is also possible to declare a limited martial law in certain areas where the military may impose curfew and temporary detention of persons charged of causing and participating in chaotic situations.

6. Chairman Espina recognized Delegate Britanico who had the first option to interpellate the Senator

6.1 Delegate Britanico wanted to know from the Senator whether, in his opinion, the power to suspend the writ be altogether removed from the President, and that in the event this power is retained, how should it be exercised by the President?

6.2 Senator Diokno replied that if this power is retained it should be exercised by the President alone but subject to review by either Congress or the Parliamentary Body that may eventually be adopted.

6.3 Delegate Britanico wanted the view of the Senator if he was agreeable to have the President share the power with the Vice President, Senate majority and minority floorleaders, Senate President, Justices of the Supreme Court, the Comelec Chairman and other heads of the constitutional organizations �

6.4 Senator Diokno replied that he is averse to sharing powers because it could not be done expediently. The Senator reminded the group that as a general rule, the President and the President of the Senate belong to the same party and even the justices of the Supreme Court fall under the same situation, and it would then still be the President who will decide.

7. The Chair called on Delegate Olmedo on his reservation to ask the next question.

7.1 Delegate Olmedo wanted to clarify if there is any technical distinction between suspension of the privilege of the writ of habeas corpusand the writ itself.

7.2 Senator Diokno replied that the writ itself is the order of the court to the person having custody of the subject to produce him in court, and that the subject has the privilege to post-bail pending the filing of the case against him, if he is to be heard for an offense. He cited the decision of the Confederate Authority which says that the privilege of the writ refers to criminal arrests in which the persons arrested have the privilege to be released on bail, which is the privilege that is suspended.

7.3 Delegate Olmedo asked whether the Senator’s stand on the abolition of the power to suspend the privilege of the writ or as an alternative, the suspension be exercised with the participation of other agencies, is because of the anti-administration group clamoring for its abolition from the constitutional provisions?

7.4 Senator Diokno reiterated his statement that it is his personal belief that martial law is a better measure than the suspension of the privilege of the writ, which the President claims to have exercised to dismantle the communist apparatus in the country. Whether this is justified or not remains an issue. Assuming that the Communists are arrested now, new leaders will come up and take over command, and these new ones are not yet known to the military authorities and so the same communistic situation continues to exist and the cycle goes on unresolved.

7.5 As a last question, Delegate Olmedo sought to be clarified on the alternative view of the Senator � that of retaining the power but its exercise be with the concurrence of Congress and the Supreme Court.

7.6 The Senator reiterated that he is for the abolition of the power, but if the Constitutional Convention believes it necessary to retain it, then its exercise by the executive must be subject to review and reversal, if need be, by Congress and the Supreme Court. He maintained that the exercise of the power to suspend the privilege of the writ is determined by two factors: (1) legality and, (2) wisdom. The Supreme Court shall determine the legality and Congress determines the wisdom of the President’s exercise of the power, and it is the Convention that can resolve this problem.

8. Chairman Espina called on Delegate Barrera, however, requested the Members to limit their questions to only two to allow everybody the opportunity to question the guest.

8.1 Delegate Barrera stated that the Senator is for the discarding of the constitutional provision on the power to suspend the privilege of the writ of habeas corpus, but is for the right of an organ of government to declare martial law but limited to an actual existence of invasion, rebellion or insurrection. This was confirmed by the Senator. Delegate Barrera inquired whether the Senator agrees or not to the fact that in places where actual fighting or actual invasion, rebellion or insurrection exists, declaration of martial law is unnecessary since the commander-in-chief has the full responsibility of exercising every step necessary to protect and preserve the welfare of the nation.

8.2 Senator Diokno replied that while it is true that the power to take all the necessary steps to preserve peace and order and protect the people, is inherent power of sovereignty, yet it would certainly be safer to provide this power of formal declaration to prevent individual arbitrary exercise of power by military commanders in the field. He stressed the need for a specific constitutional provision which must be clearly stated and defined as to the extent of the exercise of such powers

9. Delegate Padua (C.) disclosed that he is an author of a resolution removing powers of the President to suspend the privilege of the writ of habeas corpusas well as to declare martial law, and his point of concern lies in the subsequent grant of emergency powers that are complimentary to exercise of martial law by the President now given in the present Constitution. He asked the Senator whether the criterion in the exercise on martial law to actual invasion only � that is, remove the terms "rebellion and insurrection" as part of the criteria, would diminish the presidential power excesses and abuses. Delegate Padua cited the view of Justice Fernando that people have the right to rebel, and this would tend to justify exclusion of rebellion and insurrection as prerequisites to impose martial law

9.1 Senator Diokno opined that the complimentary emergency powers of the President was intended by the Constitution to allow the President to legislate in the absence of Congress but qualified this statement by revealing that he has not made deeper studies along this particular point. He also stated that the state has to have power to protect itself from any form of change other than through constitutional processes and this concept is shared not only by democratic but by any form of government in existence. In answer to Delegate Padua, he suggested to define what the word rebellion in the provision mean, and the term "insurrection’ should be removed since insurrection is a small rebellion, which does not merit declaration of martial law. This provision could well fit in the Bill of Rights instead as "the State or any portion thereof. May be placed under martial law only in case of actual invasion or rebellion, when the public safety so requires." Then eliminate the provision granting power to suspend the privilege of the writ of habeas corpusand place the power to declare martial law among the powers of the President in Section 10, Article VII, perhaps.

10. Delegate Piit sought clarification as to the stand of the Senator on the President being already Commander-In-Chief of the Armed Forces, and is then capable of quelling rebellion, therefore the power of martial law need not be specified in the Constitution or that if it has to be, then it has to be in aid to civilian authorities only. He further sought the Senator’s opinion upon whom to lodge the power to suspend the privilege of the writ of habeas corpus, as well as power to declare martial law, since he is a proponent of a form of government that would have both a President as head of state and prime minister as head of government.

10.1 The Senator clarified his statement to Delegate Barrera that to declare martial law is a recognized power inherent to the sovereignty of the state and so, need not be mentioned in the Constitution, a case in point is the United States Constitution. In reply to the second query, he stressed that, to him, there should not be such powers lodged on anyone anywhere. But if there has to be, the Prime Minister, since the President is generally a ceremonial officer, and would not be kept abreast officially on every circumstance and happening of the day in the country.

11. Delegate Siguion Reyna pointed out that from the discussions, it would be safe to assume that the only thing that matters to an executive when he is allowed to suspend the privilege of the writ or not, in his equivalent right to arrest and detain people beyond the statutory requirement. He inquired whether the Senator entertains the same thinking that the provision has outlived its usefulness since this provision was established during the days when third degree was accepted as a means of getting at the truth and confessions from people. In the absence of third degree methods, there is nothing to be gained in detaining people unless by the psychological idea that a detainee would soften to confession, which is unlikely.

11.1 The Senator explained that the objective of suspending the privilege of the writ is to hold people incommunicado citing as an example, the Philippines, if it is threatened by a Red-Chinese invasion and the authorities suspected Mr. Chan, Mr. Tan, etc. to be spies, then suspension of the privilege of the writ would enable the government to take immediate hold of Mr. Chan, Mr. Tan and company and keep them under detention without right to bail. This would put them out of circulation and disable their operations. The justifying reason therefore, lies in the need of the Armed Forces for essential time to devote on the fight against the invaders or rebels instead of consuming time to formulate charges against these detainees and the filing of charges against these detainees can be put aside until such time when the invasion or rebellion is under control. In short, it is to enable the Armed Forces to buy essential time. He reiterated that power to suspend the privilege of the writ of habeas corpusand power to declare martial law are justified only on actual invasion or rebellion, and he still maintained that the former case is unnecessary.

11.2 Delegate Siguion Reyna further querried the Senator how the State can meet the security problem in a case of imminent invasion and the power to suspend the privilege of the writ is no longer provided for, taking as a case in point, the Philippine situation during the period prior to the Japanese war when Japanese spies were all over the country preparing the grounds for its invasion in Japan. How can the President or the Prime Minister meet the problem if he has no power to suspend the privilege of the writ.

11.3 The Senator replied that in situations like this, the Senate should undertake surveillance work as is done in the U.S. The suspects are kept under surveillance and when enough evidence is acquired the authorities spring the trap on them and bring them to court or in case the suspect is found operating within an area where an actual fighting is on, then the commander of the Armed Forces in the area, by virtue of his inherent military power to restrict movement of civilians in the area can apprehend and take them to custody until the fight is over without the need for suspending the privilege of the writ. It is part of military power. He suggested as an alternative that a degree of flexibility in the manner of legislation can be resorted to. Citing as an example the legislation on matters of crimes against the security of the state, detention period prior to filing the case in court can be enlarged. There are laws at present falling under this category. Wire tapping is unlawful under normal conditions but it is allowed in cases involving security and rebellion.

12. In the follow-up clarification by Chairman De la Serna, the attention of the Senator was directed back to his former statement that pending the privilege of the writ only allows the government to hold the detainee incommunicado but the detainee has other rights as the right to communicate with relatives.

12.1 Senator Diokno agreed that the detainee is still entitled to other rights as the right to be represented by counsel, but once detained, he is subject to restrictions and control by the jailer.

12.2 Delegate De la Serna asked if there is a difference in the treatment of detainees when the privilege of the writ is suspended and detainees arrested when the privilege is not suspended: Whether to hold a person incommunicado, a jailer is under instruction to impose certain degree of restrictions to this person which is not true with the ordinary prisoners.

12.3 Senator Diokno replied that there was really no distinction or difference written in the law but the jailer, in the exercise of his duty, has a certain degree of unwritten power over his detainees. The Senator however disclosed what happened recently to people detained which he experienced as their counsel. The lawyers were allowed to talk to the detainees after a number of days had lapsed, and in fact after their statements were already taken, after the process of interrogations were terminated. He revealed that he was informed that the detainees were never harmed nor subjected to physical pressure but the process of interrogation continued for hours and hours, and even at an unholy hour of midnight they were awakened for further interrogation. Methods designed to inflict mental and physical torture to tire out the detainees.

13. The Chair recognized Delegates Molina and Mendiola who jointly engaged the Senator into a series of interpellations regarding the Senator’s personal opinions and views on the incumbent Presidential exercise of his powers (Proclamation 889 and 889-A) suspending the privilege of the writ of habeas corpus.

14. Delegate Mutuc asked the Senator if there is no difference between the Barcelon Vs. the Baker case and the Montenegro Vs. Castañeda cases.

14.1 The Senator replied that there was a difference and explained: (1) In the former case, the suspension of the privilege of the writ should not have been done but it was done only upon joint hearing by the Philippine Commission and the Governor General to grant action. While in the latter case, the suspension was the exclusive action of the President of the Philippines. (2) The situation in the former case were such that at the very beginning our courts were manned by American Jurists intended to be later on manned by Filipino Jurists. This being so, the courts found it hard to rule and make a doctrine. Such action could be interpreted as tantamount to allowing Filipino Jurists to overrule an American Governor General and by implication, overrule the President of the U.S. since under the Jones Law, the privilege of the writ can be suspended by the President of the U.S. This can be held later on (today) that the Filipino Supreme Court could review the findings of the President of the U.S., which is impossible under the relation between a colony and its colonizer, and (3) that the standard of morality and truth were observed with greater fidelity at that time than they are today.

14.2 Delegate Mutuc sought clarification in the event that the Supreme Court rules that the anti-subversion law is not a Bill of Attainder, the Senator begged off. He stated that he preferred not to discuss the details and merits of his position in this case, but strongly urged the Convention to consider rewriting the provisions on the freedom of association.

15. The Chair wanted to know whether suspension of the writ and the right to bail is not suspended.

15.1 The Senator stated that in his opinion the right to bail prior to filing the case in court is suspended. When the case is filed in court, the custody of the person accused goes from the executive to the judiciary. On a follow-up question by the Chairman seeking clarification for the distinction pointed out by the Senator that right to bail prior to filing the case in court is suspended, the Senator explained that the provision of the privileged of the writ consists of the right of a person to be released if the arrest is found illegal by court, or the detention is arbitrary or in absence of a prima facie evidence against the person, so if the privilege of the writ is suspended, it follows that all the other rights are also suspended.

15.2 The Chair sought the view of the Senator on the opinion of both Secretary Abad Santos and Solicitor Antonio that during suspension of the privilege of the writ, an order of warrant of arrest is necessary. Senator Diokno agreed with this opinion. The Chair pointed out that if, as the Senator said, the purpose of the privilege of the writ is to question the legality of arrest and detention, it could be so, even if there is a valid warrant of arrest. This would seem to point out that the issuance of the warrant of arrest is unnecessary. The Senator replied, NO, and pointed out that if no case can be produced against a person detained, the arrest is unlawful and the arresting officer is subject to prosecution. The suspension of the privilege of the writ merely makes it impossible for the courts to order the release of the detainee. The Senator agreed substantially with the observation of the Chair that this long legal process required to be followed defeats the very purpose of the suspension of the privilege of the writ, and stated that this is the reason the executive and the military authorities resort to illegal shorcuts in taking people into custody. Many of the detainees today were not issued legal warrants, but were just invited to the military headquarters. Because of these observations cited, the Senator urged the joint Body to review and rewrite the provisions on the issuance of warrants of arrest.

16. Delegate Tupaz (D.) engaged the Senator in a series of clarificatory questions which delved on points already discussed by the Senator in previous interpellations by Delegates Mutuc, Barrera, Reyes, Laggui and Siguion Reyna. The Senator however reiterated his statement that he is for the retention of the exercise of martial law, not that it is less harmful, but that it is less subject to abuse than the suspension of the privilege of the writ.

17. Delegate Gunigundo’s interpellations were on the subject of effectivity and validity of Presidential Proclamations as Proclamation No. 889 and 889-A. The Senator emphasized that the effectivity of proclamations hinged on the time it was made public, not necessarily though, that it be published in the Official Gazette, nor copies of the contents be furnished the metropolitan newspapers for publication.

18. Senator Diokno categorically answered Delegate Sanchez that he was suggesting a proposal to totally remove the power to suspend the writ of habeas corpusin the proposed Constitution, since being silent about it will allow Congress or the President to exercise its power of such procedure. In answer to Delegate Calderon (J.), he reiterated that the suspension of the writ of habeas corpuscan be exercised with or without being provided for in the Constitution.

19. Delegate Aruego was informed by Senator Diokno that those detained can only apply for bail if a case is filed against a detainee in court, so what is done is to file a petition for habeas corpus, which includes the right to bail, if the case is bailable.

20. Delegate Velez explained that he was recommending two alternative proposal, to the Executive Power Committee: 1) to prevent forever the suspension of the privilege, or 2) to put safeguards, meaning the President may suspend it but only in actual cases of invasion or rebellion for a specific period of time in specific areas where public safety requires it, with the concurrence of two-thirds vote of the members of Congress, if in session, and if not, it will be subject to the automatic review by the Supreme Court.

20.1 Senator Diokno was in favor of Delegate Velez’ first proposal, however, in the event the thinking of the Convention does not agree, the Senator did not want to limit the President, or whoever exercises the power to suspend, for a specific period, because it will be inflexible and meaningless. He way not agreeable to a concurrence by Congress because he does not want to tie the hands of the President in cases of emergency, since it is very hard to muster a quorum in both houses of Congress. However, he was for its review by the Supreme Court. He was for the immediate proclamation, but a limit of time should be set within which, the review should be made.

20.2. Delegate Barrera insisted that the right to protect itself is an inherent sovereign right of any State, so that for any organization of government to exercise those means of protection (declaration of martial law and suspension of the privilege of the writ) should be so stated in the Constitution, and the necessary safeguards provided for.

21. Delegates Barrera and Siguion Reyna engaged the Senator in a discussion criticizing the actuations of the incumbent President in connection with the suspension of the writ of habeas corpus.

ADJOURNMENT OF MEETING

22. The Chair thanked Senator Diokno for his elucidation and participation in the discussions of the topics for the day, and adjourned the joint public hearing at 12:10 p.m.

PREPARED AND EDITED BY:chanrob1es virtual 1aw library

(Sgd.) HON. CELSO P. TABUENA

ATTESTED BY:chanrob1es virtual 1aw library

(Sgd.) VICTOR DE LA SERNA
Chairman
Committee on Civil and Political Rights

Typed by: Alice G. Aquino

Proofread by: Salome Ortiz/Vivencio Gopole

Knowing the Government’s stand and the President’s action, the Constitutional Convention decided to retain the martial law power verbatim in the new Constitution. The framers not only ratified the validity of the existing state of martial law but reaffirmed the President’s interpretation as the correct meaning of the constitutional provision for future occasions requiring its exercise. The political character of a martial law proclamation with its continuation was then confirmed by the Constitutional Convention.

The political character of continued martial law is also sustained by the parliamentary system under the new Charter. The power to declare martial law is vested exclusively in the Prime Minister by Article IX, Section 12. Following established precedents, such a vesting of power is supposed to mean that its exercise is to the exclusion of all others who may want to share in the power. In practice, however, this will no longer be true.

The 1973 Constitution joined together the Executive and the Legislative departments of the government, which were distinctly separate from each other under the 1935 Constitution. The New Charter provides: "The legislative power shall be vested in a National Assembly." (Article VIII, Sec. I); "The Executive power shall be exercised by the Prime Minister with the assistance of the Cabinet." (Article IX, Sec. I); "The Prime Minister shall be elected by a majority from among themselves." "(Article IX, Sec. 3); "The Prime Minister shall appoint the Members of the Cabinet who shall be the heads of ministries at least a majority of whom shall come from the National Assembly. Members of the Cabinet may be removed at the discretion of the Prime Minister." (Article IX, Sec. 4).

Thus, we now have a Parliamentary system of government under the New Charter. An essential feature thereof is the direct responsibility of the Prime Minister and the members of his Cabinet to the National Assembly, for they hold their positions only for as long as they enjoy the confidence of the Assembly. More accurately, Article VIII, Sec. 13 (1) provides for the withdrawal of confidence through the election of a successor or a new Prime Minister by a majority vote of all members of the National Assembly.

A Prime Minister under the new Charter must always take into account the desires of the National Assembly when he makes important decisions. As a matter of fact, he and the majority of his cabinet are also members of the National Assembly. In fact, they are the leaders of the predominant party in the legislature. They control legislative policy. The Prime Minister is responsible to the National Assembly and must execute its will on the one hand and he is its political leader and helps shape that will on the other. Grave public issues will be handled by the Executive and the Legislature acting together. Under the new Constitution, martial law will be a joint responsibility of the two political departments (executive and legislative) even if its formal proclamation is vested solely in the Prime Minister.

Before I could release this opinion, I was able to get the "Transcript of the Proceedings of the 166-man Special Committee 3 Meeting No. 1, October 24, 1972" which fully sustains my view, and I quote:chanrob1es virtual 1aw library



PAGE 88 - VOL. XVI � NO. 8

DELEGATE TUPAZ (A.): Section 4 �

THE PRIME MINISTER SHALL BE THE COMMANDER-IN-CHIEF OF ALL ARMED FORCES OF THE PHILIPPINES AND, WHENEVER IT BECOMES NECESSARY, HE MAY CALL OUT SUCH ARMED FORCES TO PREVENT OR SUPPRESS LAWLESS VIOLENCE, INVASION, INSURRECTION, OR REBELLION. IN CASE OF INVASION, INSURRECTION, OR REBELLION, OR IMMINENT DANGER THEREOF, WHEN THE PUBLIC SAFETY REQUIRES IT, HE MAY SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS, OR PLACE THE PHILIPPINES OR ANY PART THEREOF UNDER MARTIAL LAW.

This provision is an exact copy of a provision in the present Constitution. This provision complements Section 15, Article IV on the Bill of Rights of this draft. May I, therefore, move for its approval, Mr. Chairman?

CHAIRMAN DE GUZMAN (A): Any observation or comment? Yes, Gentleman from Batangas?

DELEGATE LEVISTE (O.): Thank you, Mr. Chairman. We notice, Your Honor, that in these two sections, Section 15 of the Bill of Rights and Section 12 of Article IX, we are, in a way of speaking, remedying the seeming discrepancy between similar provisions in the present Constitution. Both provisions will now contain the phrase "or in case of imminent danger thereof." With such a change, I believe that no conflict as to the true intent will arise in the future. But allow me, Your Honor, to recall, briefly, our recent jurisprudence on the matter of the declaration of martial law and of the suspension of the privilege of the writ of habeas corpus. Your Honor will recall that under the Jones Act, the Governor-General of the Philippines was given the power to suspend the privilege of the writ of habeas corpusand to declare martial law. When such power was questioned in court, the Supreme Court came out with the decision, in the case of Barcelon v. Baker, that the findings of the Chief Executive on the existence of the grounds for the declaration of martial law or the suspension of the privilege of the writ of habeas corpusare conclusive and may not be inquired into by the courts. When the Philippine Commonwealth was established under the 1935 Constitution, the President thereof was likewise given the power to suspend the privilege of the writ of habeas corpusand to proclaim or declare martial law for any of the causes enumerated in the pertinent provisions. Sometime in the 1950’s, then President Quirino suspended the privilege of the writ of habeas corpus. When a case arose, that of Montenegro v. Castañeda, the Supreme Court affirmed its stand in Barcelon v. Baker, that the assessment by the Chief Executive of the existence of the cause or causes giving rise to the proclamation of martial law or the suspension of the writ of habeas corpusis conclusive and may not be contested in the courts. Recently, however, only a little less than a year ago, when President Marcos suspended the privilege of the writ of habeas corpus, the Supreme Court ruled, in the case of Lansang v. Garcia and other companion cases, that the existence of insurrection, rebellion, invasion, or imminent danger thereof, may be properly inquired into by the courts. Now, I would like to pose before this body, whether this Convention should now affirm the latest doctrine or whether we should revert to the old theory and doctrine in the two cases of Barcelon v. Baker and Montenegro v. Castañeda.

DELEGATE TUPAZ (A.): In view of the fact that Chairman de Guzman is also the Chairman of Subcouncil II on Citizens’ Rights which conducted an exhaustive study on this matter of martial law, may I request that he be the one to answer queries on this point?

CHAIRMAN DE GUZMAN (A.): In that case, may I request Delegate Tupaz to act as Chairman in the meantime?(At this point, Chairman De Guzman yielded the Chair to Delegate Antonio Tupaz.).

DELEGATE DE GUZMAN (A.): I am personally in favor of abandoning the doctrine laid down in the case of Lansang v. Garcia, and I would recommend such a view to this Committee, and to the Convention as a whole. At this very moment, the Solicitor General, in representation of President Marcos, is urging the Supreme Court that such a doctrine be abandoned and that we revert to the old theory laid down in the cases mentioned by Your Honor. Indeed, our courts, especially the Supreme Court, where these eases are invariably taken up, are ill-equipped to make findings on the existence of rebellion, insurrection, or lawlessness.

DELEGATE LEVISTE (O.): But is not Your Honor aware that there are a number of resolutions filed in the Convention that the Chief Executive may suspend the privilege of the writ of habeas corpus, or proclaim and declare martial law only for a limited period and/or with the concurrence of the Legislature?

DELEGATE DE GUZMAN (A.): Yes, Your Honor, but we are not bound. This Committee is not bound by those resolutions. As already agreed upon when the 166-Man Special Committee was created, that Committee of which we are a part was merely advised to take into consideration such resolutions. We should bear in mind also that we are adopting the parliamentary system where there is more, rather than less, fusion of legislative and executive powers. We are adopting, Your Honor, the concept and principle of an executive more directly and immediately responsible to the Legislature so that the exercise by the Chief Executive of any of his powers will be subject to the ever present scrutiny of the Legislature.

DELEGATE LEVISTE (O.): But my point, Your Honor, is to emphasize the fact that the filing of those resolutions requiring even the concurrence of the National Assembly for the valid exercise by the Prime Minister of these extraordinary constitutional prerogatives indicates that there is a sentiment among the Delegates to further restrict, rather than expand, the powers. And I would say that the decision of the Supreme Court in Lansang v. Garcia, which repudiated the doctrine earlier laid down in Baker and Castañeda lends support to that sentiment. If we are to interpret the provision under consideration in the way Your Honor would want it interpreted, in the sense that the factual findings of the Chief Executive for the suspension of the privilege of the writ of habeas corpusor the declaration of martial law would he conclusive insofar as the Judicial Department is concerned, then we are retrogressing and, in effect, going against the sentiment to further restrict the exercise of these great constitutional powers.

DELEGATE DE GUZMAN (A.): I can go along with Your Honor’s arguments if, as I have already stated, this Convention opted for the presidential form of government. But as we have already opted and chosen the parliamentary system, I think further restrictions on the powers of the Chief Executive will no longer be justified. It may be trite to repeat here, but I repeat them nevertheless, the arguments in favor of a parliamentary form of government: that this system is for a strong executive, but one who is immediately and instantly answerable to bis peers at all times. Thus, should a Prime Minister suspend the privilege of the writ of habeas corpusor declare martial law arbitrarily or, even perhaps, irrationally, I don’t think that there can be any better or more immediate check on such arbitrary and irrational exercise of power than the Parliament itself. The courts cannot pretend to be in a better position than the Parliament in this regard. For the Parliament on the very day, or perhaps even on the very hour, that the Prime Minister proclaims martial law or suspends the privilege of the writ of habeas corpusmay file a motion to depose him and should this motion be successful, then the prevailing party with its Prime Minister will just issue another proclamation restoring normalcy and order.

DELEGATE LEVISTE (O.): Thank you, Your Honor. For the moment, Mr. Chairman, I have no more questions to ask.

PRESIDING OFFICER TUPAZ (A.): Are there any further comments or interpellations?

DELEGATE QUIRINO: Just one question, Mr. Chairman, in connection with the point raised by Delegate Leviste.

PRESIDING OFFICER TUPAZ (A.): You may proceed.

DELEGATE QUIRINO: Before I ask my question, Your Honor, let me state my position clearly lest I be misunderstood. I am asking this question not because I disagree with Your Honor’s position but only for the purpose of enriching this debate with exchanges of views for future researchers and scholars. Now, if, as Your Honor puts it, the decision of the Prime Minister on the existence of grounds justifying the declaration of martial law or the suspension of the privilege of the writ of habeas corpuswould no longer be opened to judicial scrutiny, would that not enable the Prime Minister to abuse his powers?

DELEGATE DE GUZMAN (A.): Your Honor was not listening. I just stated that there is a more immediate check on the part of the Parliament, and aside from this practical check, it must be understood that an act of the Chief Executive suspending the privilege of the writ of habeas corpusor proclaiming martial law is political act, the remedy must also be political, in a political forum, be in Parliament or directly before our people. And it must be stated that there is no power which may not be abused. I think, Your Honor, we should once and for all agree as to the nature of this power we are investing in the Chief Executive. Once and for all, we should agree that this power is eminently political and executive in nature. The Judiciary, I submit, is not the best, much less is it the most practical agency, to possess, to exercise, to limit this power, the need for which cannot be denied.

DELEGATE QUIRINO: Well, Your Honor, I am not a lawyer, so I hope you will pardon me if I cannot fully appreciate what you are talking about. Because, to me, an act is political if it is done by a politician. That’s all, Mr. Chairman.

PRESIDING OFFICER TUPAZ (A.): Let’s be serious, please. All right, are there further interpellations or comments? Yes, Delegate Ortiz, what is it that you want to ask?

DELEGATE ORTIZ (R.): Well, Mr. Chairman, this is not a question but just additional observations. It is unfortunate really that the doctrine first laid down in Barcelon v. Baker and affirmed more than half a century later in Montenegro v. Castañeda was reversed by the Supreme Court in Lansang v. Garcia. I say it is unfortunate because more than anyone else, only the President is in the best position to evaluate and assess the existence of the causes which would warrant the exercise of this constitutional power. As it were, the Prime Minister is the head of the Executive Department. More than that, he is the Commander-in-Chief of all the armed forces of the Philippines. He has, therefore, all the resources and facilities not available to any other official of the government, much less to the Supreme Court, to make authoritative findings and assessments of the threats to national security. But even in the Lansang case, I would say that the Court had to rely on the findings of the Executive Department. I have here a copy of the decision of the Supreme Court in that case, and I would say that the Court had to rely on the findings of the Executive Department. I have here a copy of the decision of the Supreme Court in that case, and I would like to quote a portion thereof. In this decision, the Supreme Court stated, and I quote:chanrob1es virtual 1aw library

In the year 1969, the NPA had � according to the records of the Department of National Defense � conducted raids, resorted to kidnapping and taken part in other violent incidents, summing over 230, in which it inflicted 404 casualties and, in turn, suffered 243 losses. In 1970, its record of violent incidents was about the same but the NPA casualties more than doubled.

I wish to call the attention of the Members of this Committee to the phrase appearing in this portion of court’s decision, namely, "according to the records of the Department of National Defense." This phrase is, to me, significant in the sense that even the Supreme Court itself had to rely on the records of an agency of the Executive Department, which only proves or, at least indicates an admission on the part of the Court that by itself, it is not in a position to make its own factual findings on the grounds justifying the suspension of the privilege of the writ of habeas corpusin the Lansang case. In short, even in the Lansang case where the Supreme Court repudiated the conclusiveness of executive findings on facts to justify the exercise of the power, the same court, nonetheless, had to resort to such findings made by an arm of the Executive Department. If I may further add, I would like to say that, to my recollection, during that hearing when the Supreme Court received this evidence, or perhaps we may call them pieces of information, from the military, which information was classified, there were objections on the part of some counsel who were excluded from the hearing, to the effect that they should also be afforded the opportunity of hearing such information. All of these, of course, merely show the impracticability on the part of any court, be it the Supreme Court or a lower court, to receive evidence which is, perhaps, not even acceptable under the Rules of Court and, thereafter, to determine for itself whether such evidence or information is legally sufficient for the President or the Prime Minister to act upon. We are therefore here abandoning the Lansang doctrine.

SOME DELEGATES: No objection! No objection!

DELEGATE ADIL: So, it is then the understanding of this Committee, and I take it to be its position, that when the Prime Minister suspends the privilege of the writ of habeas corpusor declares martial law, the findings by the Prime Minister on the causes that justify such suspension or proclamation are conclusive and may not, therefore, be inquired into by the courts.

DELEGATE DE GUZMAN (A.): May not be inquired into by the courts or by anyone, and the Chief Executive is fully responsible for his acts. The courts, of course, are powerless to take remedies against any arbitrary acts of the Chief Executive, but such arbitrary act, if there be any, may be checked by the political branch or department of the government and, ultimately, by the people themselves.

DELEGATE LEVISTE (O.): If that is our understanding, Your Honor, why don’t we put it here, in black and white, that the findings of the Prime Minister on the existence of the grounds for the suspension of the privilege of the writ of habeas corpusor the proclamation of martial law are conclusive upon the courts?

PRESIDING OFFICER TUPAZ (A.): Your Honor, I suppose you are aware that we are here drafting a Constitution and not annotating an existing one. If we are to include in this document every intent and interpretation we have on each provision, I cannot imagine the kind of bulk of such Constitution which we shall submit to our people.

DELEGATE LEVISTE (O.): I made that suggestion, Your Honor, because I want to leave no doubt on our position regarding this point.

PRESIDING OFFICER TUPAZ (A.): Well, I think the records of our deliberations here would suffice to erase that doubt.

DELEGATE LEVISTE (O.): Now, Mr. Chairman, if I may go to another point, I would like to inquire whether this provision on the powers of the Chief Executive o. the Prime Minister concerning the declaration of martial law is limited to the quelling of the suppression of rebellion, insurrection, invasion or lawlessness, or whether such a power includes in it the establishment of a new order of things, a new society. I say this, Your Honor, because on the evening President Marcos announced the proclamation of martial law, he underscored his action by saying that he proclaimed martial law in order according to him, "to save the Republic and form a New Society"

PRESIDING OFFICER TUPAZ (A:): Delegate De Guzman will please answer that.

DELEGATE DE GUZMAN (A.): The question, Your Honor, brings to the fore the nature and concept of martial law. As it is understood by recognized authorities on the subject, martial law rests upon the doctrine of paramount necessity. The controlling consideration, Your Honor, is necessity. The crucial consideration is the very existence of the State, the very existence of the Constitution and the laws upon which depend the rights of the citizens, and the condition of peace and order so basic to the continued enjoyment of such rights. Therefore, from this view of the nature of martial law, the power is to be exercised not only for the more immediate object of quelling the disturbance or meeting a public peril which, in the first place, caused the declaration of martial law, but also to prevent the recurrence of the very causes which necessitated the declaration of martial law. Thus, Your Honor, I believe that when President Marcos, to cite the domestic experience, declared that he proclaimed Martial law to save the Republic and to form a New Society, he was stating the full course which martial law must have to take in order to achieve its rational end. Because in the particular case of the Philippine situation, I agree with the President that it is not enough that we be able to quell the rebellion and the lawlessness, but that we should also be able to eliminate the many ills and evils in society which have, in the first place, bred and abetted the rebellion and the lawlessness.

DELEGATE LEVISTE (O.): I agree with you wholeheartedly, Your Honor. That’s all, Mr. Chairman.

DELEGATE ADIL: It seems, Your Honor, that we are revolutionizing the traditional concept of martial law which is commonly understood as a weapon to combat lawlessness and rebellion through the use of the military authorities. If my understanding is correct, Your Honor, martial law is essentially the substitution of military power for civilian authorities in areas where such civilian authorities are unable to discharge their functions due to the disturbed peace and order conditions therein. But with your explanation, Your Honor, it seems that the martial law administrator, even if he has in the meantime succeeded in quelling the immediate threats to the security of the state, could take measures no longer in the form of military operations but essentially and principally of the nature of ameliorative social action.

DELEGATE DE GUZMAN (A.): His Honor is correct when he said that we are abandoning the narrow, traditional and classic concept of martial law. But we are abandoning the same only to humanize it. For Your Honor will recall that the old concept of martial law is that the law of the camp is the law of the land, which we are not ready to accept, and President Marcos, aware as he is, that the Filipino people will not countenance any suppressive and unjust action, rightly seeks not only to immediately quell and break the back of the rebel elements but to form a New Society, to create a new atmosphere, which will not be a natural habitat of discontent. Stated otherwise, the concept of martial law, as now being practiced, is not only to restore peace and order In the streets and in the towns but to remedy the social and political environments in such a way that discontent will not once more be renewed.

DELEGATE ORTIZ (R.): I can feel from the discussion, Mr. Chairman, that we are having difficulty in trying to ascertain the scope and limitations of martial law. To my mind, Mr. Chairman, it is constitutionally impossible for us to place In this great document, in black and white, the limits and the extent of martial law. We are framing a Constitution and not a statute and unlike a statute, a Constitution must limit itself to providing basic concepts and policies without going into details. I have heard from some of the Delegates here their concern that we might be, by this provision and the interpretations being given to it, departing from the traditional concept of martial law. Concepts are mere concepts, Mr. Chairman, but concepts, like principles, must be tested by their application to existing conditions, whether those concepts are contained in statutes or in a Constitution. Referring specifically to the exercise of this power by President Marcos, doubts have been expressed in some quarters, whether In declaring martial law he could exercise legislative and judicial powers. I would want to emphasize that the circumstances which provoked the President in declaring martial law may be quantified. In fact, it is completely different from a case of Invasion where the threat to national security comes from the outside. The martial law declared by the President was occasioned by the acts of rebellion, subversion, lawlessness and chaos that are widespread in the country. Their origin, therefore, is internal. There was no threat from without, but only from within. But these acts of lawlessness, rebellion, and subversion are mere manifestations of more serious upheavals that beset the deepest core of our social order. If we shall limit and constrict martial law to its traditional concept, in the sense that the military will be merely called upon to discharge civilian functions in areas where the civil functionaries are not in a position to perform their normal duties or, better still, to quell lawlessness and restore peace and order, then martial law would be a mere temporary palliative and we shall be helpless if bound by the old maxim that martial law is the public law of military necessity, that necessity calls it forth, that necessity justifies its existence, and necessity measures the extent and degrees to which it may be employed. My point here, Your Honor, is that beyond martial necessity lies the graver problem of solving the maladies which, in the first place, brought about the conditions which precipitated the exercise of his martial authority, will be limited to merely taking a military measure to quell the rebellion and eliminating lawlessness in the country and leave him with no means to create an enduring condition of peace and order, then we shall have failed in providing in this Constitution the basic philosophy of martial law which, I am sure, we are embodying in it for the great purpose of preserving the State. I say that the preservation of the State is not limited merely to eliminating the threats that immediately confront it. More than that, the measure to preserve the State must go deeper into the root causes of the social disorder that endanger the general safety.

DELEGATE DE GUZMAN (A.): I need not add more, Mr. Chairman, to the very convincing remarks of my good friend and colleague, Delegate Ortiz. And I take it, Mr. Chairman, that is also the position of this Committee.

PRESIDING OFFICER TUPAZ (A.): Yes, also of this Committee.

DELEGATE ADIL: Just one more question, Mr. Chairman, if the distinguished Delegate from La Union would oblige.

DELEGATE DE GUZMAN (A,): All the time, Your Honor.

DELEGATE ADIL: When martial law is proclaimed, Your Honor, would it mean that the Constitution, which authorizes such proclamation, is set aside or that at least some provisions of the Constitution are suspended?

DELEGATE DE GUZMAN (A.): The Constitution is not set aside, but the operation of some of its provisions must, of necessity, he restricted, if not suspended, because their continuance is inconsistent with the proclamation of martial law. For instance, some civil liberties will have to be suspended upon the proclamation of martial law, not because we do not value them, but simply because it is impossible to implement these civil liberties hand-in-hand with the effective and successful exercise and implementation of martial powers. There are certain individual rights which must be restricted and curtailed because their exercise and enjoyment would negate the implementation of martial authority. The preservation of the State and its Constitution stands paramount over certain individual rights and freedom. As it were, the Constitution provides martial law as its weapon for survival, and when the occasion arises, when such is at stake, prudence requires that certain individual rights must have to be sacrificed temporarily. For indeed, the destruction of the Constitution would mean the destruction of all the rights that flow from it.

DELEGATE ADIL: Does Your Honor mean to say that when martial law is declared and I, for instance, am detained by the military authorities, I cannot avail of the normal judicial processes to obtain my liberty and question the legality of my detention?

DELEGATE DE GUZMAN (A.): If I am not mistaken, Your Honor, you are referring to the privilege of the writ of habeas corpus.

DELEGATE ADIL: Yes, Your Honor, that is correct.

DELEGATE DE GUZMAN (A.): In that case, Your Honor, I take it that when martial law is proclaimed, the privilege of the writ of habeas corpusis ipso facto suspended and, therefore, if you are apprehended and detained by the military authorities, more so, when your apprehension and detention were for an offense against the security of the State, then you cannot invoke the privilege of the writ of habeas corpusand ask the courts to order your temporary release. The privilege of the writ of habeas corpus, like some other individual rights, must have to yield to the greater need of preserving the State. Here, we have to make a choice between two values, and I say that in times of great peril, when the very safety of the whole nation and this Constitution is at stake, we have to elect for the greater one. For, as I have said, individual rights assume meaning and importance only when their exercise could he guaranteed by the State, and such guaranty cannot definitely be had unless the State is in a position to assert and enforce its authority.

DELEGATE ADIL: Since martial law was declared by President Marcos last September 21, 1972, and announced on September 23, 1972, the President has been issuing decrees which are in the nature of statutes, regulating, as they do, various and numerous norms of conduct of both the private and the public sectors. Would you say, Your Honor, that such exercise of legislative powers by the President is within his martial law authority?

DELEGATE DE GUZMAN (A.): Certainly, and that is the position of this Committee. As martial law administrator and by virtue of his position as Commander-in-Chief of the Armed Forces, the President could exercise legislative and, if I may add, some judicial powers to meet the martial situation. The Chief Executive must not be harmstrung or limited to his traditional powers as Chief Executive. When martial law is declared, the declaration gives rise to the birth of powers, not strictly executive in character, but nonetheless necessary and incident to the assumption of martial law authority to the end that the State may be safe.

DELEGATE ADIL: I am not at all questioning the constitutionality of the President’s assumption of powers which are not strictly executive in character. Indeed, I can concede that when martial law is declared, the President can exercise certain judicial and legislative powers which are essential to or which have to do with the quelling of rebellion, insurrection, imminent danger thereof, or meeting an invasion. What appears disturbing to me, and which I want Your Honor to convince me further, is the exercise and assumption by the President or by the Prime Minister if powers, either legislative or judicial in character, which have nothing to do with the conditions of rebellion, insurrection, invasion or imminent danger thereof. To be more specific, Your Honor, and to cite to you an example. I have in mind the decree issued by the President proclaiming a nationwide land reform or declaring land reform throughout the Philippines. I suppose you will agree with me, Your Honor, that such a decree, or any similar decree for that matter, has nothing to do with the invasion, insurrection, rebellion or imminent danger thereof. My point, Your Honor, is that this measure basically has nothing to do with the restoration of peace and order or the quelling of rebellion or insurrection. How could we validly say that the President’s assumption of such powers is justified by the proclamation of martial law?

DELEGATE DE GUZMAN (A.): As I have repeatedly stated, Your Honor, we have now to abandon the traditional concept of martial law as it is understood in some foreign textbooks. We have to look at martial law not as an immutable principle. Rather, we must view it in the light of our contemporary experience and not in isolation thereof. The quelling of rebellion or lawlessness or, in other words, the restoration of peace and order may admittedly be said to be the immediate objective of martial law, but that is to beg the question. For how could there really be an enduring peace and order if the very causes which spawned the conditions which necessitated the exercise of martial powers are not remedied? You cite as an example the decree on land reform. Your Honor will have to admit that one of the major causes of social unrest among peasantry in our society is the deplorable treatment society has given to our peasants. As early as the 1930’9, the peasants have been agitating for agrarian reforms to the extent that during the time of President Quirino they almost succeeded in overthrowing the government by force. Were we to adopt the traditional concept of martial law, we would he confined to merely putting down one peasant uprising after another, leaving unsolved the maladies that in the main brought forth those uprisings. If we are really to establish an enduring condition of peace and order and assure through the ages the stability of our Constitution and the Republic, I say that martial law, being the ultimate weapon of survival provided for in the Constitution, must penetrate deeper and seek to alleviate and cure the ills and the seething furies deep in the bowels of the social structure. In a very real sense, therefore, there is a profound relationship between the exercise by the martial law administrator of legislative and judicial powers and the ultimate objective of martial law. And I may add that in the ultimate analysis, the only known limitation to martial law powers is the convenience of the martial law administrator and the judgment and verdict of the people and, of course, the verdict of history itself.

DELEGATE LEVISTE (O.): Your Honor, just for purposes of discussion, may I know from you whether there has been an occasion in this country where any past President had made use of his martial law power?

DELEGATE DE GUZMAN (A.): I am glad that you asked that question, Your Honor, because it seems that we are of the impression that since its incorporation into the 1935 Constitution, the martial law provision has never been availed of by the President. I recall, Your Honor, that during the Japanese occupation, President Laurel had occasion to declare martial law, and I recall that when President Laurel declared martial law, he also assumed legislative and judicial powers. We must, of course, realize that during the time of President Laurel, the threats to national security which precipitated the declaration came from the outside. The threats therefore, were not internal in origin and character as those which prompted President Marcos to issue his historic proclamation. If, in case � as what happened during the time of President Laurel � the declaration of martial law necessitated the exercise of legislative powers by the martial law administrator, I say that greater necessity calls forth the exercise of that power when the threats to national security are posed not by invaders but by the rebellions and seditious elements, both of the left and right, from within. I say that because every rebellion, whether in this country or in other foreign countries, is usually the product of social unrest and dissatisfaction with the established order. Rebellions or the acts of rebellion are usually preceded by long suffering of those who ultimately choose to rise in arms against the government, A rebellion is not born overnight, It is the result of an accumulation of social sufferings on the part of the rebels until they can no longer stand those sufferings to the point that, like a volcano, it must sooner errupt. In this context, the stamping out of rebellion must not be the main and only objective of martial law. The Martial law administrator should, nay, must, take steps to remedy the crises that lie behind the rebellious movement, even if in the process, he should exercise legislative and judicial powers. For what benefit would it be after having put down a rebellion through the exercise of martial power if another rebellion is again in the offing because the root causes which propelled the movement are ever present? One might succeed in capturing the rebel leaders and their followers, imprison them for life or, better still, kill them in the field, but someday new leaders will pick up the torch and the tattered banners and lead another movement. Great causes of every human undertaking do not usually die with the men behind those causes. Unless the root causes are themselves eliminated, there will be a resurgence of another rebellion and, logically, the endless and vicious exercise of martial law authority. This reminds me of the wise words of an old man in our town: That if you are going to clear your field of weeds and grasses, you should not merely cut them, but dig them out.

PRESIDING OFFICER TUPAZ (A.): With the indulgence of the Gentleman from 1a Union, the Chair would want to have a recess for at least ten minutes.

DELEGATE DE GUZMAN (A.): Thank you, Mr. Chairman. In fact, I was about to move for it after the gruelling interpellations by some of our colleagues here, but before we recess, may I move for the approval of Section 4?

PRESIDING OFFICER TUPAZ (A.): Are there any objections? There being none, Section 4 is approved.

It is for the foregoing reasons that I find continued martial law to be a political question under the new Charter. The present Constitution does not give the Supreme Court any power to check the exercise of a supremely political prerogative. If there is any checking or review of martial law, the Constitution gives it, not to the Supreme Court, but to the National Assembly. Ultimately, the checking function is vested in the people. Whether the National Assembly expresses displeasure and withdraws its confidence from the Prime Minister through election of a successor or the Prime Minister asks the President to dissolve the National Assembly under Article VIII, Section 13, the issue of martial law ultimately rests with the people. Anything dependent upon the popular will is, of course, political. Although the interim National Assembly has not yet been convened, the intent of the Constitutional Convention to make the question political is clear.

Exclusive of the Transitory Provisions, other provisions of the present Charter may be cited. The Bill of Rights, Article IV, Section 15 had added "or imminent danger thereof" to the 1935 provision. It now reads �

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

Article IX, Section 16, another new provision reads �

SEC. 16. All powers vested in the President of the Philippines under the nineteen hundred and thirty-five Constitution and the laws of the land which are not herein provided for or conferred upon any official shall be deemed, and are hereby, vested in the Prime Minister, unless the National Assembly provides otherwise.

All the foregoing features of the new Constitution strengthen and do not decrease the exclusivity and political nature of the power to proclaim martial law and to lift it.



Even if we grant that the continuation of martial law and the determination when to lift it are justiciable in character, Our decision is still the same. Correctness of the President’s acts, I must repeat, is not the test. Assuming that the Court has jurisdiction to determine when martial law should be lifted, the test is still arbitrariness.

Aside from asserting that there was no basis for the initial proclamation of martial law, the petitioners insist there is no real emergency in the country today. Petitioner Diokno cites various newspaper items reporting statements of the President and defense officials. Among them are assurances of the President that reservists won’t undergo combat duty, statements of Defense Secretary Ponce Enrile citing gains in peace and order, disclosures of commanding generals that the Mindanao rebellion is crushed and Tarlac is now peaceful, and reports from Nueva Ecija that the rebel backbone is broken. (Supplemental Petition and Motion for Immediate Release dated June 29, 1973.)

The petitioners assert that the "actual state of war" aspect was dropped from general orders as early as September 30, 1972 and that the transformation of a New Society has become the new theme.

It is the second purpose � the building of a New Society � that is now being emphasized everywhere. I he instruments of mass communication that have been allowed to often drum this theme without ceasing. Very little space and time is devoted now to the idea of saving the Republic. One can, of course, handle this difficulty by a semantic manipulation, namely, that the building of a New Society is the only way of saving the Republic.

In a Manifestation dated July 6, 1974, petitioner Diokno cites other circumstances showing that peace and order conditions in the country are normal.

1. The President left the country a few weeks ago for a meeting at Menado with President Suharto of Indonesia, something he obviously would not have done if there really was an emergency.

2. Tourists and foreign unvestors are coming to our shores in hordes, not just to Manila but also its environs and outlying provinces, which they would certainly not do if they were not assured of security and stability.

3. Basketball, chess, swimming and even karate international tournaments are being held in the Philippines. The President even attended the latter event.

4. The 1974 Miss Universe contest is scheduled to be held in Manila this month with expenses in preparation therefor amounting to millions of pesos. The Government would not have been so thoughtless as to spend so much money for such an unnecessary affair, if there is really an "actual and imminent danger of insurrection and rebellion."cralaw virtua1aw library

5. Since the proclamation of martial law, the Philippines has hosted several international conferences, the latest being the United Nations Development Program sessions which were attended by delegates and observers from sixty-six (66) countries, twenty-six (26) United Nations Agencies, and the U.N.D.P. Secretariat. The event last mentioned brought in so many visitors that facilities of no less than fourteen (14) hotels had to be utilized. This can only happen in a country where peace and tranquility prevail.

These circumstances, � some bordering on the frivolous, coupled with the President’s clear and repeated assurances that there is "no real emergency today" (Daily Express, June 22, 1973) and that "actually We have removed" martial law (Time Magazine, April 15, 1974) � all confirm that the conditions under which "persons may be detained without warrant but with due process" (to use the quotation from petitioner’s cited by respondents), no longer exist, if indeed they ever existed, and that, therefore, the power of indefinite detention claimed by the Solicitor General and the respondents for the President in their last two pleadings, is actually and patently "beyond the pale of the law because it is violative of the human rights guaranteed by the Constitution."cralaw virtua1aw library

While I believe that the continuation of a state of martial law is a political question under the new Constitution, these arguments deserve answer for the sake of our people who will read the Court’s decision.

I am not convinced, at this stage of martial law, that the President is acting arbitrarily in not lifting the proclamation.

A Manifestation dated May 13, 1974 from the respondents states:chanrob1es virtual 1aw library

a. Pursuant to the President’s constitutional powers, functions, and responsibilities in a state of martial law, he periodically requires to be conducted a continuing assessment of the factual situation which necessitated the promulgation of Proclamation No. 1081 on September 21, 1972 and the continuation of martial law through Proclamation No. 1104, dated January 17, 1973;

b. The Government’s current and latest assessment of the situation, including evidence of the subversive activities of various groups and individuals, indicates that there are still pockets of actual armed insurrection and rebellion in certain parts of the country. While in the major areas of the active rebellion the military challenge to the Republic and its duly constituted Government has been overcome and effective steps have been and are being taken to redress the centuries-old and deep-seated causes upon which the fires of insurrection and rebellion have fed, the essential process of rehabilitation and renascence is a slow and delicate process. On the basis of said current assessment and of consultations with the People, the President believes that the exigencies of the situation, the continued threat to peace, order, and security, the dangers to stable government and to democratic processes and institutions, the requirements of public safety, and the actual and imminent danger of insurrection and rebellion all require the continuation of the exercise of powers incident to martial law;

c. The majority of persons who had to be detained upon the proclamation of martial law have been released and are now engaged in their normal pursuits. However, the President has deemed that, considering the overall situation described above and in view of adequate evidence which can not now be declassified, the continued detention of certain individuals without the filing of formal charges in court for subversive and other criminal acts is necessary in the interest of national security and defense to enable the Government to successfully meet the grave threats of rebellion and insurrection. In this regard, the Secretary of National Defense and his authorized representatives have acted in accordance with guidelines relating to national security which the President has prescribed.

The President believes that the continued threat to peace and order, the dangers to stable government and democratic institutions and the actual and imminent danger of insurrection and rebellion require continuation of martial law. This finding is based on a continuing assessment of the factual situation which resulted in Proclamation No. 1081. On the other hand, petitioners believe otherwise.

In the exercise of judicial review, one reasonable mind assessing the factual situation now obtaining could probably agree with the petitioners. Another reasonable mind, however, viewing the same factual situation could very understandably arrive at an opposite conclusion. Assuming We have the power We should not try to weigh evidence on either side and determine who is correct and who is wrong. As stated earlier, the test of validity is arbitrariness and not correctness. I do not doubt the President’s sincerity and good faith in making the determination outlined in the respondent’s Manifestation. There can, therefore, be no finding that he is acting arbitrarily in not lifting martial law.

The "evidence" presented by petitioner Diokno weakens his arguments. If, as he claims, the mass media are controlled, the news items on rebellion that he cites should not be accorded strong probative value. It is possible that the news about rebels and insurrectionist activities is deliberately played down as part of the peace and order campaign under martial law. The news could be intended to convince those who may waver between seeking amnesty or prolonging the rebellion to take the first course of action.

In fact, there is overwhelmingly a greater number of reasonable men and women who agree with the President’s findings than with the petitioners’ convictions. On July 27, 1973 and July 28, 1973, voters in a national referendum were asked � Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated under martial law? The Commission on Elections has reported that 18,505,216 voters answered "Yes" and 1,856,744 voted "No." The vote of the 18,505,216 people from all parts of the country who answered "Yes" can clearly be interpreted as sustaining the finding that the President is not acting arbitrarily. In fact, it can be read in no other way but to confirm even the correctness of the President’s determination on the continuing need for martial law. And since other referenda are forthcoming, a more reliable gauge of arbitrariness and correctness than press clippings is available to our people as they judge the President.

The petitioners, in urging this Court to decide the petitions and to decide them in their favor, raise the alarm that unless We do so, We may never be able to decide at all. We are warned that "in the face of an assault on the Judiciary, it would be ridiculous, if it were not tragic, if this Court did not even so much as defend itself . . . In the face of a dismantling of the entire constitutional order of which the Judiciary is a vital, indispensable part, how can it even afford the luxury of acquiescence in its own ruin? And how can it continue to inspire the high respect of the people, if it merely indulges m sculptured rhetoric and fails to protect their civil liberties in live, concrete petitions such as their (Reply Memorandum for Petitioners dated November 30, 1972, page 40). The petitioners speak of "constitutional suicide" (Ibid, p. 60) and allege that "the gloom deepens and is encircling, and only a few lights remain. One remaining light is that provided by this Supreme Tribunal The entire nation now looks in its direction and prayerfully hopes it will continue burning" (ibid, p. 81).

I do not share the same doomsday impressions about martial law. My decision is based not alone on my sincere conviction about what the Constitution commands and what the relevant constitutional provisions mean. Happily, my reading of the Constitution as a legal document coincides with what I feel is right, morally and conscience-wise, for our country and people. It confirms my life-long conviction that there is indeed wisdom, profundity, and even genius in the seemingly short and uncomplicated provisions of our fundamental law.



Another issue in the instant petitions is whether the privilege of the writ of habeas corpusis suspended upon a proclamation of martial law. The answer is obviously in the affirmative.

The proclamation of martial law is conditioned on the occurrence of the gravest contingencies. The exercise of a more absolute power necessarily includes the lesser power especially where it is needed to make the first power effective. "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." (Barcelon v. Baker, 6 Phil. 87, 112). It would negate the effectivity of martial law if detainees could go to the courts and ask for release under the same grounds and following the same procedures obtaining in normal times. The President in the dispositive paragraph of Proclamation No. 1081 ordered that all persons presently detained or others who may thereafter be similarly detained for the crimes of insurrection and rebellion and all other crimes and offenses committed in furtherance or on the occasion or in connection therewith shall be kept under detention until otherwise ordered released by him or his duly designated representative. Under General Order No. 2-A, the President ordered the arrest and taking into custody of certain individuals. General Order No. 2-A directs that these arrested individuals will be held in custody until otherwise ordered by the President or his duly designated representative. These general orders clearly show that the President was precluding court examination into these specified arrests and court orders directing release of detained individuals.

Martial law is intended to overcome the dangers from rebellion or insurrection. The purpose would be subverted if martial law is declared and yet individuals committing acts of direct rebellion and insurrection or acts which further the goals of the rebels cannot be detained without filing charges. If the President decides to proclaim martial law and to use all the military forces of the Philippines to preserve the Republic and safeguard the interests of the people, it is sophistry to state that the lesser power of suspending the privilege of the writ of habeas corpusis not included. This is especially true where, as in these cases, the President has specifically ordered the detention without filing of charges of individuals who further or might further the rebellion. This appears clear from Proclamation No. 1081 itself and from pertinent general orders issued pursuant to it.



There is another reason for denying the instant petitions.

Article XVII, Section 3, Subsection (2) of the present Constitution (ratified on January 17, 1973) has a transitory provision which reads:chanrob1es virtual 1aw library

(2) All proclamations, orders, decrees, Instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly.

It is noted from the foregoing that all proclamations and orders of the President, specifically Proclamation No. 1081 and the relevant orders and decrees affecting the herein petitioners and others similarly situated, are by the express words of the Constitution, part of the law of the land. In fact, the transitory provision considers them valid, legal, binding and effective even after lifting of martial law or the ratification of this Constitution. They are valid not only at the inception of but also during martial law. Only an express and explicit modification or repeal by the regular National Assembly may modify, revoke, and supersede the proclamations, orders, decrees, instructions or other acts of the incumbent President under martial law. This transitory provision does not, as many people believe, merely validate Proclamation No. 1081. This section confirms the validity of the proclamation under the old Constitution and its continuing validity under the New Constitution. The Constitutional Convention concurred with the President and declared that the proclamation was validly issued under the old Charter and continues to be constitutional under the new Constitution. On the basis of the constitutional provision alone, the declaration of martial law under Proclamation No. 1081 may, therefore, be justified and validated. Similarly, the orders of the President on the continued detention of the petitioners and, in effect, the suspension of the privilege of the writ of habeas corpushave been definitely declared valid and constitutional.

I wish to add that with the above-cited portion of the Transitory Provision, the Constitutional Convention wanted to foreclose any constitutional attack on the validity of "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President" mentioned therein. As a matter of fact, during the discussions of this portion of the Transitory Provision before the 166-man special committee, formed to finally draft the Constitution of which I was a member, (being the Vice-Chairman of the panel of floor leaders), answering a query from Delegate Leviste, Delegate Pacificador said:chanrob1es virtual 1aw library



"By the provisions of Subsection 2, we are rendering the decrees of the incumbent President as more than mere statutes. We are constituting them as highly political acts, the validity of which cannot be inquired into even by our courts, but are appealable only to the people themselves. There will be no other way of revoking or repealing such decrees except by the two ways mentioned in Subsection 2 of Section 3."cralaw virtua1aw library

Justifying martial law and the suspension of the privilege of the writ of habeas corpusby citing the transitory provisions of the present Constitution leads to another argument in the petitions. According to petitioner Diokno, the statements in the dispositive portion of the decision in the ratification cases that "there is no further judicial obstacle to the new Constitution being considered in force and effect" is clearly not a ruling that the New Constitution is legally in force and effect. Petitioner Diokno stresses how carefully the Court has chosen its language. According to him, the Court does not say that there is no further legal obstacle and that it says merely that there is no further judicial obstacle. Petitioner finds a world of difference between a legal and a judicial obstacle. Every illegal act, according to him, is per se barred by a legal obstacle but not necessarily by a judicial obstacle. The petitioner points out that the Court does not state that the new Constitution is in force and effect. It merely speaks of the new Constitution being considered in force and in effect. He alleges that between "being" and "being considered", there is again a world of difference. From the decision of the Supreme Court in the ratification cases, the petitioner believes that the Court was trying to make it as plain as circumstances permitted that it had not decided that the new Constitution is legally and factually in force.

Other pleadings submitted in these cases have raised basically the same major issues that were raised in the ratification cases already decided by the Court.

To my mind, the dispositive portion of the Supreme Court’s decision is best interpreted by the Supreme Court itself. No amount of argumentation, submission of pleadings, play of words, and semantic niceties can overcome or ignore the fact that the Supreme Court is interpreting and applying the new Constitution. The members have taken an oath to defend this new Constitution. By both action and words, all the members of this Court have made it plain beyond any shadow of doubt that the new Constitution is legally and factually in force. The justices of this Court would be the last persons to interpret and enforce something they do not consider valid, legitimate, and effective. It is not alone the taking of an oath to support and defend the new Constitution that indicates clearly what the Court meant when it rendered the Javellana v. Executive Secretary (L-36142) decision. The meaning of the decision is quite clear from the fact that the Court has been enlarged beyond its earlier composition. It has reorganized itself into two divisions. Each division is now trying cases pursuant to the New Constitution. All courts are under the administrative supervision of the Supreme Court. An examination of decisions rendered by the Court since the Javellana v. Executive Secretary decision will show that there is constant reference to the 1973 Constitution. Its provisions form the basis for its authority to interpret and expound on the laws. Whenever a provision of the Constitution is invoked, the Court turns to the 1973 Constitution as the present Constitution. I can see no clearer interpretation of a decision of this Court than these various acts of the Court itself.



There are a few other points which I would like to answer briefly. Petitioner Francisco ‘Soc’ Rodrigo states that while he was released from detention on December 5, 1972, his release is conditional and subject to some restrictions. He is not allowed to leave the confines of the Greater Manila area unless specifically authorized by the military. He states that his petition for habeas corpusis not moot and academic because of his release.

Considering my opinion on the constitutionality of Proclamation No. 1081, it follows that the release of petitioners Jose W. Diokno and Benigno S. Aquino may not be ordered. The petitions for their release, as in the case of detainees already released, must be directed to the President. *** If such is the case with petitioners who are actually detained and confined, with more reason should the principles herein enunciated apply to those no longer confined or detained.

In the case of former Senator Benigno S. Aquino, criminal charges have been filed against him. As a rule, a petition for the writ of habeas corpusis satisfactorily answered by a showing that a prisoner is detained on the basis of valid criminal charges. However, petitioner Aquino challenges the jurisdiction of the military tribunal and the validity of the charges filed against him.

Therefore, insofar as all issues in the case of Benigno S. Aquino v. Military Commission No. 2, L-37364, which are common to the issues in these instant petitions are concerned, this decision applies. On any other issue not common to the issues in these Petitions, I am reserving my opinion for L-37364.



The general remedy against an arbitrary, whimsical, or capricious exercise of the martial law power of the President, as it is the remedy on all political questions, is the voice of the people in an election when one is held, or through the Barangays which the President himself has consulted in the July 27 and 28, 1973 referendum on whether the people wanted President Marcos to continue beyond 1973 and finish the reforms he has initiated under martial law. The President has officially announced a number of times that he would consult with the Barangays periodically. Under this remedy, the people, in the exercise of their sovereign power, can base their decision, not only on whether the acts of the President has been arbitrary, whimsical, or capricious; they can base th eir decision on a broader basis � and that is whether, in their own opinion, the President acted correctly or not.

Or if and when the interim assembly is convened, a majority of the members thereof, as representatives of the people, can also remedy an arbitrary, whimsical, capricious, or even an unwise exercise of the power, by so advising the Prime Minister to lift martial law under pain of being deposed as Prime Minister.

As we declare the proclamation and the continuation of martial law political and therefore nonjusticiable in nature, We are only acknowledging the constitutional limitation of that power to justiciable questions only, just as we had defined the constitutional limitations of the powers of Congress and of the Executive. As the interpreter of the Constitution, the Court has to lead in respecting its boundaries.

Our jurisprudence is replete with examples where this Court exercised its judicial power in appropriate cases (Avelino v. Cuenco, 83 Phil. 17; Araneta v. Dinglasan, 84 Phil. 368; Nationalista Party v. Bautista, 85 Phil. 101; Rodriguez v. Gella, 92 Phil. 603; Rutter v. Esteban, 93 Phil. 68; Aytona v. Castillo, 4 SCRA 533, to name only the few), which should more than prove that no matter how grave or urgent, delicate or formidable and novel or uncommon a legal problem is, the Court will know when and how to resolve it. Specifically, it will know what to do if, as petitioners fear, a President may someday wake up and out of the blue proclaim martial law. Of course, this is already almost an impossibility under the parliamentary system established by the New Constitution.



The voluminous pleadings and the lengthy arguments supporting the petitions are generally couched in erudite and eloquent language. It is regrettable that they have been tainted in a number of instances with frenzied and biting statements indicative of a sense of exasperation. I am certain, however, that these statements cannot affect the high sense of impartiality of the members of the Court as they give their opinion in these cases.

The President is the highest elective official in the country. It was no casual or perfunctory choice which elevated him to the position. It is his duty, no less than that of this Court, to save the Republic from the perils of rebellion and insurrection. In order to preserve public safety and good order, he has been forced to proclaim a state of martial law. To insure the continuation of civilian authority and democratic institutions, he has utilized the armed forces to quell the armed challenge and to remedy the ancient evils upon which rebellion and insurrection flourish.

The petitioners dispute the President’s determination and question his motives. To them the exercise of his constitutional powers is an abuse of executive powers and assumption of a dictatorship. Inasmuch as the real reason for the imposition of martial law, according to petitioner Diokno, is not to preserve the nation but to keep the President in power, there is only one decision the Court should make. It should invalidate Proclamation No. 1081. The dire consequences are given by the petitioner � eventual resort to arms, shedding of blood. destruction of property and irreparable loss of invaluable lives � which, of course, are the same consequence sought to be avoided when martial law was proclaimed.

The Supreme Court may be the highest court of the land. It is not, however, a super Being over and above the Executive, the Legislature and the Constitution, deciding cases on an infallible sense of Truth and a faculty of divination. Principles of liberty, right, and justice are not interpreted in an abstract and dogmatic form. They are applied in the manner the sovereign people adopted our institutions of government and formulated our written Constitution.

The Supreme Court can rule on the proclamation of martial law only insofar as its validity under the Constitution is raised as an issue. If the Constitution, as the expression of sovereign will, vests the determination of the necessity for martial law in the President, the Court shall so declare and respect it.

However, the determination of the wisdom or the propriety of the proclamation must rest with the people. Wisdom and propriety in the making of supremely political decisions and in the exercise of political functions are for the people to assess and determine. Under our constitutional form of government, no official or department can effectively exercise a power unless the people support it. Review by the people may not be as clearcut and frequent as judicial review but it is actual, present, and most effective.

The constitutional process and the rule of law are interpreted and enforced by the Supreme Court but their viability and strength depend on the support and faith of the people. Consequently, if our people allow the system of government to be changed, no pronouncements of this Court can reverse the change or topple an alleged dictator from power. Only the people can do it.

Fortunately, the trend of present events clearly shows that martial law, instead of destroying constitutional government as advanced by the petitioners, is, in fact, saving and strengthening it.

WHEREFORE, I vote to render judgment:chanrob1es virtual 1aw library

(1) To grant the Diokno motion to withdraw his petition for habeas corpus;

(2) Declaring that the decision to proclaim martial law is a political question and the Court may not examine the grounds upon which Proclamation No. 1081 is based; granting that the Court may do so, there is sufficient constitutional factual basis for the same and certainly the President has not acted arbitrarily, whimsically or capriciously in issuing the Proclamation; that on both grounds, said Proclamation No. 1081 is constitutional;

(3) Declaring that the privilege of the writ of habeas corpusis ipso facto suspended upon a proclamation of martial law; and in effect, General Order No. 2-A suspended said privilege;

(4) Declaring that the continuation of the state of martial law is similarly a political question and that it is for the President or the Prime Minister, under the New Constitution, to determine when it may be lifted; and granting that this Court may examine the factual basis for the continuation of martial law, We find sufficient basis for the same; and

(5) Dismissing the various petitions for the writ of habeas corpusof petitioners still detained, or under "community arrest," within the Greater Manila area, without costs.