Philippine Supreme Court Jurisprudence > Year 1974 > September 1974 Decisions > Barredo, 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:

It is to my mind very unfortunate that, for reasons I cannot comprehend or do not deem convincing, the majority of the Court has agreed that no main opinion be prepared for the decision in these, cases. Honestly, I feel that the grounds given by the Chief Justice do not justify a deviation from the regular practice of a main opinion being prepared by one Justice even when the members of the Court are not all agreed as to the grounds of the judgment as long as at least a substantial number of Justices concur in the basic ones and there are enough other Justices concurring in the result to form the required majority. I do not see such varying substantial disparity in the views of the members of the Court regarding the different issues here as to call for a summarization like the one that was done, with controversial consequences, in Javellana. * Actually, the summarization made by the Chief Justice does not in my opinion portray accurately the spectrum of our views, if one is to assay the doctrinal value of this decision. The divergences stated are I think more apparent than real.

In any event, it is my considered view that a historical decision like this, one likely to be sui generis, at the same time that it is of utmost transcendental importance because it revolves around the proper construction of the constitutional provisions securing individual rights as they may be affected by those empowering the Government to defend itself against the threat of internal and external aggression, as these are actually operating in the setting of the official proclamation of the Executive that rebellion endangering public safety actually exists, deserves better treatment from the Court. Indeed, I believe that our points of seeming variance respecting the questions before us could have been threshed out, if only enough effort in that direction had been exerted by all. The trouble is that from the very beginning many members of the Court, myself included, announced our desire to have our views recorded for history, hence, individualization rather than consensus became the order of the day. In consequence, the convenient solution was forged that as long as there would be enough votes to support a legally binding judgment, there need not be any opinion of the Court, everyone could give his own views and the Chief Justice would just try to analyze the opinions of those who would care to prepare one and then make a certification of the final result of the voting. It was only at the last minute that, at my suggestion, supported by Justice Castro, the Chief’s prepared certification was modified to assume the form of a judgment, thereby giving this decision a better semblance of respectability.

As will be seen, this separate opinion of concurrence is not due to any irreconcilable conflict of conviction between me and any other member of the Court. Truth to tell, at the early stages of our efforts to decide these cases, but after the Court had more or less already arrived at a consensus as to the result, I was made to understand that I could prepare the opinion for the Court. Apparently, however, for one reason or another, some of our colleagues felt that it is unnecessary to touch on certain matters contained in the draft I had submitted, incomplete and unedited as it was, hence, the plan was abandoned. My explanation that a decision of this import should be addressed in part to the future and should attempt to answer, as best we can, not only the questions raised by the parties but also to relevant ones that we are certain are bothering many of our countrymen, not to speak of those who are interested in the correct juridical implications of the unusual political developments being witnessed in the Philippines these days, failed to persuade them. I still feel very strongly, however, the need for articulating the thoughts that will enable the whole world to visualize and comprehend the exact length, breadth and depth of the juridical foundations of the current constitutional order and thus be better positioned to render its verdict thereon.

The following then is the draft of the opinion I prepared for the Court. I feel I need not adjust it to give it the tenor of an individual opinion. Something inside me dictates that I should let it stand as I had originally prepared it. I am emboldened to do this by the conviction that actually, when properly analyzed, it will be realized that whatever differences there might be in the various opinions we are submitting individually, such differences lie only in the distinctive methods of approach we have each preferred to adopt rather than in any basically substantial and irreconcilable disagreement. If we had only striven a little more, I am confident, we could have even found a common mode of approach. I am referring, of course, only to those of us who sincerely feel the urgency of resolving the fundamental issues herein, regardless of purely technical and strained reasons there might be to apparently justify an attitude of indifference, if not concealed antagonism, to the need for authoritative judicial clarification of the juridical aspects of the New Society in the Philippines.

On September 11, 1974, petitioner Diokno was released by the order of the President, "under existing rules and regulations." The Court has, therefore, resolved that his particular case has become moot and academic, but this development has not affected the issues insofar as the other petitioners, particularly Senator Aquino, are concerned. And inasmuch as the principal arguments of petitioner Diokno, although presented only in the pleadings filed on his behalf, apply with more or less equal force to the other petitioners, I feel that my reference to and discussion of said arguments in my draft may well be preserved, if only to maintain the purported comprehensiveness of my treatment of all the important aspects of these cases.

Before proceeding any further, I would like to explain why I am saying we have no basic disagreements.

Except for Justices Makasiar and Esguerra who consider the recitals in the Proclamation to be absolutely conclusive upon the courts and of Justice Teehankee who considers it unnecessary to express any opinion on the matter at this point, the rest or eight of us have actually inquired into the constitutional sufficiency of the Proclamation. Where we have differred is only as to the extent and basis of the inquiry. Without committing themselves expressly as to whether the issue is justiciable or otherwise, the Chief Justice and Justice Castro unmistakably appear to have actually conducted an inquiry which as far as I can see is based on facts which are uncontradicted in the record plus additional facts of judicial notice. No independent evidence has been considered, nor is any reference made to the evidence on which the President had acted. On their part, Justices Antonio, Fernandez and Aquino are of the view that the Proclamation is not subject to inquiry by the courts, but assuming it is, they are of the conviction that the record amply supports the reasonableness, or lack of arbitrariness, of the President’s action. Again, in arriving at this latter conclusion, they have relied exclusively on the same factual bases utilized by the Chief Justice and Justice Castro. Justices Fernando and Muñoz Palma categorically hold that the issue is justiciable and, on that premise, they made their own inquiry, but with no other basis than the same undisputed facts in the record and facts of judicial notice from which the others have drawn their conclusions. For myself, I am just making it very clear that the inquiry which the Constitution contemplates for the determination of the constitutional sufficiency of a proclamation of martial law by the President should not go beyond facts of judicial notice and those that may he stated in the proclamation, if these are by their very nature capable of unquestionable demonstration. In other words, eight of us virtually hold that the Executive’s Proclamation is not absolutely conclusive � but it is not to be interfered with whenever it accords with facts undisputed in the record as well as those of judicial notice or capable of unquestionable demonstration. Thus, it is obvious that although we are split between upholding justiciability or nonjusticiability, those who believe in the latter have nonetheless conducted an inquiry, while those who adhere to the former theory, insisting on following Lansang, have limited their inquiry to the uncontroverted facts and facts of judicial notice. Indeed, the truth is that no one has asked for inquiry into the evidence before the President which is what the real import of justiciability means. In the final analysis, none of us has gone beyond what in my humble opinion the Constitution permits in the premises. In other words, while a declaration of martial law h not absolutely conclusive, the Court’s inquiry into its constitutional sufficiency may not, contrary to what is implied in Lansang, involve the reception of evidence to be weighed against those on which the President has acted, nor may it extend to the investigation of what evidence the President had before him. Such inquiry must be limited to what is undisputed in the record and to what accords or does not accord with facts of judicial notice.

Following now is my separate concurring opinion which as I have said is the draft I submitted to the Court’s approval:chanrob1es virtual 1aw library

This is a cluster of petitions for habeas corpusseeking the release of petitioners from detention, upon the main ground that, allegedly, Proclamation 1081 issued by President Ferdinand E. Marcos on September 21, 1972 placing the whole country under martial law as well as the general orders subsequently issued also by the President by virtue of the said proclamation, pursuant to which petitioners have been apprehended and detained, two of them until the present, while the rest have been released conditionally, are unconstitutional and null and void, hence their arrest and detention have no legal basis.

The petitioners in G. R. No. L-35538 are all journalists, namely, Joaquin P. Roces, Teodoro M. Locsin, Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo M. Soliven, Renato Constantino and Luis R. Mauricio. Their petition was filed at about noon of September 23, 1972.

Almost three hours later of the same day, the petition in G. R. No. L-35539 was filed, with Carmen I. Diokno, as petitioner, acting on behalf of her husband, Jose W. Diokno, a senator, who is one of those still detained.

Two days later, early in the morning of September 25, 1972, the petition of Maximo V. Soliven, Napoleon G. Rama and Jose Mari Velez, all media men, was docketed as G. R. No. L-35540. The last two were also delegates to the Constitutional Convention of 1971.

In all the three foregoing cases, the proper writs of habeas corpuswere issued returnable not later than 4:00 p.m. of September 25, 1972, and hearing of the petitions was held on September 26, 1972. 1

Late in the afternoon of September 25, 1972, another petition was filed on behalf of Senators Benigno S. Aquino, Jr. and Ramon V. Mitra, Jr., and former Senator Francisco "Soc" Rodrigo, also a TV commentator. (Delegate Napoleon Rama also appears as petitioner in this case.) It was docketed as G. R. No. L-35546.

The next day, September 26, 1972, a petition was filed by Voltaire Garcia II, another delegate to the Constitutional Convention, as G. R. No. L-35547. 2

In this two cases the writs prayed for were also issued and the petitions were heard together on September 29, 1972.

In G. R. No. L-35556, the petition was filed by Tan Chin Hian and Veronica L. Yuyitung on September 27, 1972, but the same was withdrawn by the latter on October 6, 1972 and the former on October 9, 1972, since they were released from custody on September 30, 1972 and October 9, 1972, respectively. The Court allowed the withdrawals by resolution on October 11, 1972.

On October 2, 1972, the petition of journalists Amando Doronila, Juan L. Mercado, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Tan Chin Hian, (already a petitioner in G. R. No. L-35556) Bren Guiao, (for whom a subsequent petition was also filed by his wife in G. R. No. L-35571, but both petitions on his behalf were immediately withdrawn with the approval of the Court which was given by resolution on October 11, 1972) Ruben Cusipag, Roberto Ordoñez, Manuel Almario and Willie Baun was filed in G. R. No. L-35567. All these petitioners, except Juan L. Mercado, Manuel Almario and Roberto Ordoñez withdrew their petitions and the Court allowed the withdrawals by resolutions of October 3 and 11, 1972.

And on October a, 1972, Ernesto Rondon, also a delegate to the Constitutional Contention and a radio commentator, filed his petition in G. R. No. L-35573.

Again, in all these last four cases, G. R. Nos. L-35556, 35567, 35571 and 35573, the corresponding writs were issued and a joint hearing of the petitions was held October 6, 1972, except as to the petitioners who had as of then announced the withdrawal of their respective petitions.

The returns and answers of the Solicitor General in all these nine cases, filed on behalf of the principal respondents, the Secretary of National Defense, Hon. Juan Ponce Enrile, the Chief of Staff of the Armed Forces of the Philippines, General Romeo Espino, and the Chief of the Philippine Constabulary, General Fidel V. Ramos, were practically identical as follows:jgc:chanrobles.com.ph



COME NOW respondents, by the undersigned counsel, and appearing before this Honorable Court only for purposes of this action, as hereunder set forth, hereby state by way of return to the writ and answer to the petition, as follows:chanrob1es virtual 1aw library



1. They ADMIT the allegations in paragraphs I and V of the Petition;

2. They ADMIT the allegations in paragraph 11 of the Petition that the petitioners were arrested on September 22, 1972 and are presently detained at Fort Bonifacio, Makati, Rizal, but SPECIFICALLY DENY the allegation that their detention is illegal, the truth being that stated in Special and Affirmative Defenses of this Answer and Return;

3. They SPECIFICALLY DENY the allegations in paragraphs III, IV, VI and VII, of the Petition, the truth of the matter being that stated in the Special and Affirmative Defenses of this Answer and Return.

Respondents state by way of



4. On September 21, 1972, the President of the Philippines, in the exercise of the 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;

5. Pursuant to said Proclamation, the President issued General Orders Nos. 1, 2, 3, 3-A, 4, 5, 6, and 7 and Letters of Instruction Nos. 1, 2 and 3. True copies of these documents are hereto attached and made internal parts hereof as Annexes 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11. A copy of the President’s statement to the country on September 23, 1972 is also attached as Annex 12;

6. Finally, the petition states no cause of action.



IN VIEW WHEREOF, it is respectfully prayed of this Honorable Supreme Court that the petition be dismissed.

Manila, Philippines, September 27, 1972."cralaw virtua1aw library

At the hearings, the following well-known and distinguished members of the bar appeared and argued for the petitioners: Petitioner Diokno argued on his own behalf to supplement the arguments of his counsel of record; Attys. Joker D. Arroyo appeared and argued for the petitioners in L-35538 and L-35567; Francis E. Garchitorena, assisted by Oscar Diokno Perez, appeared and argued for the petitioner in L-35539; Ramon A. Gonzales, assisted by Manuel B. Imbong, appeared and argued for the petitioners in L-35540; Senators Gerardo Roxas and Jovito R. Salonga, assisted by Attys. Pedro L. Yap, Sedfrey A. Ordoñez, Custodio O. Parlade, Leopoldo L. Africa, Francisco Rodrigo Jr., Magdaleno Palacol and Dakila F. Castro, appeared and argued for the petitioners in L-35546; Atty. E. Voltaire Garcia Sr. appeared and argued in behalf of his petitioner son in L-35547; Attys. Raul I. Goco and Teodulo R. Dirio appeared for the petitioners in L-35556; Atty. Roberto P. Tolentino appeared for the petitioner in L-35571; and Atty. Aquilino Pimentel Jr. assisted by Atty. Modesto R. Galias Jr. appeared and argued for the petitioner in L-35578.

On October 31, 1972, former Senator Lorenzo M. Tañada, together with his lawyer-sons, Attorneys Renato and Wigberto Tabada, entered their appearance as counsel for all the petitioners in G. R, No. L-35538, except Fadul, Galang and Go Eng Guan, for petitioner Diokno in G. R. No. L-35539 and for petitioners Aquino, Mitra, Rodrigo and Rama in G. R. No. L-35546.

For the respondents, Solicitor General Estelito P. Mendoza, Assistant Solicitors General Bernardo P. Pardo and Rosalio A. de Leon (both of whom are judges now), Solicitor Reynato S. Puno (now Assistant Solicitor General) and Solicitors Jose A. R. Melo and Jose A. Janolo appeared in all the cases, but only the Solicitor General argued. Later, Assistant Solicitor General Vicente V. Mendoza also appeared and co-signed all the subsequent pleadings and memoranda for Respondents.

After the hearings of September 26 and 29 and October 6, 1972, the parties were required to file their respective memoranda. On November 9, 1972 petitioners in all the cases filed their consolidated 109-page memorandum, together with the answers, contained in 86 pages, to some 33 questions posed by the Court in its resolution of September 29, 1972, and later, on December 1, 1972, an 88-page reply to the memorandum of respondents, with annexes. In a separate Manifestation of Compliance and Submission filed simultaneously with their reply, petitioners stressed that:jgc:chanrobles.com.ph

"4. That undersigned counsel for Petitioners did not ask for any extension of the period within which to file the Reply Memorandum for Petitioners, despite overwhelming pressure of work, because �

a. every day of delay would mean one day more of indescribable misery and anguish on the part of Petitioners and their families;

b. any further delay would only diminish whatever time is left � more than a month’s time � within which this Court can deliberate on and decide these petitions, having in mind some irreversible events which may plunge this nation into an entirely new constitutional order, namely, the approval of the draft of the proposed Constitution by the Constitutional Convention and the ‘plebiscite’ scheduled on January 15, 1973;

c. the proposed Constitution, if ‘ratified’, might prejudice these petitions, in view of the following transitory provision:chanrob1es virtual 1aw library

‘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 the lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly. (Article XVII, sec. 3, par. 2 of the proposed Constitution).

"5. In view of the fact that they were arrested and detained allegedly in keeping with the existing Constitution, it is only humane and just that these petitions � to be accorded preference under Rule 22, section I of the Rules of Court � be disposed of while there is still time left, in accordance with the present Constitution and not in accordance with a new constitutional order being ushered in, under the aegis of a martial rule, the constitutionality and validity of which is the very point at issue in the instant petitions;

"6. Since, according to the unanimous view of the authorities, as cited in their Memorandum, the overriding purpose of martial law is � and cannot go beyond � the preservation of the constitutional status quo, and not to alter it or hasten its alteration, it would be extremely unjust and inhuman, to say the least, to allow these petitions for the Feat writ of liberty to be imperilled, by virtue of a new Constitution � ‘submission’ and ‘ratification of which are being pressed under martial law � that would purportedly ratify all Executive edicts issued and acts done under said regime � something that has never been done as far as is known in the entire history of the Anglo-American legal system;" (pp. 414-416, Rollo, L-35539.)

At this juncture, it may be stated that as of October 11, 1972, the following petitioners had already withdrawn: Amando Doronila, Hernando J. Abaya, Ernesto Granada, Luis Beltran, Bren Guiao, Ruben Cusipag, Willie Baun, Tan Chin Hian and Veronica L. Yuyitung; hence, of the original nine cases with a total of 32 petitioners, 3 only the six above-entitled cases remain with 18 petitioners. 4 The remaining petitioners are: Joaquin P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Jose W. Diokno thru Carmen Diokno, Napoleon G. Rama, Jose Mari Velez, Benigno S. Aquino, Ramon V. Mitra, Jr., Francisco S. Rodrigo, Juan L. Mercado, Roberto Ordoñez, Manuel Almario and Ernesto Rondon, but only Senators Diokno and Aquino are still in confinement, the rest having been released under conditions hereinafter to be discussed. The case of petitioner Garcia in G. R. No. L-35547 is deemed abated on account of his death.

Over the opposition of these remaining petitioners, respondents’ counsel was given several extensions of their period to file their memorandum, and it was not until January 10, 1973 that they were able to file their reply of 35 pages. Previously, their memorandum of 77 pages was filed on November 17, 1972. Thus, the cases were declared submitted for decision only on February 26, 1973, per resolution of even date, only to be reopened later, as will be stated anon.

In the meanwhile, practically the same counsel for petitioners in these cases engaged the government lawyers in another and separate transcendental judicial tussle of two stages relative to the New Constitution. On December 7, 1972, the first of the so-called Plebiscite Cases (G. R. No. L-35925, Charito Planas v. Comelec, G. R. No. L-35929, Pablo C. Sanidad v. Comelec, G. R. No. L-35940, Gerardo Roxas Et Al. v. Comelec, G. R. No. L-35941, Eddie B. Monteclaro v. Comelec, G. R. No. L-35942, Sedfrey A. Ordoñez v. Treasurer, G. R. No. L-35948, Vidal Tan v. Comelec, G. R. No. L-35953, Jose W. Diokno et als. v. Comelec, G. R. No. L-35961, Jacinto Jimenez v. Comelec, G. R. No. L-35965, Raul M. Gonzales v. Comelec and G. R. No. L-35979, Ernesto Hidalgo v. Comelec) was filed. These cases took most of the time of the Court until January 22, 1973, when they were declared moot and academic because of the issuance of Proclamation 1102 on January 17, 1973, but on January 20, 1973, as a sequel to the Plebiscite Cases, Josue Javellana filed Case No. G. R. No. L-36142 against the Executive Secretary and the Secretaries of National Defense, Justice and Finance. This started the second series of cases known as the Ratification Cases, namely, said G. R. No. L-36142 and G. R. No. L-36164, Vidal Tan v. The Executive Secretary Et Al., G. R. No. L-36165, Gerardo Roxas Et Al. v. Alejandro Melchor etc. Et Al., G. R. No. L-36236, Eddie B. Monteclaro v. The Executive Secretary, and G. R. No. L-36283, Napoleon V. Dilag v. The Honorable Executive Secretary. The main thrust of these petitions was that the New Constitution had not been validly ratified, hence the Old Constitution continued in force and, therefore, whatever provisions the New Constitution might contain tending to validate the proclamations, orders, decrees, and acts of the incumbent President which are being relied upon for the apprehension and detention of petitioners, have no legal effect. In any event, the advent of a new constitution naturally entailed the consequence that any question as to the legality of the continued detention of petitioners or of any restraint of their liberties may not be resolved without taking into account in one way or another the pertinent provisions of the new charter. Accordingly, the resolution of these two series of cases became a prejudicial matter which the Court had to resolve first. It was not until March 31, 1973 that they were decided adversely to the petitioners therein and it was only on April 17, 1973 that entry of final judgment was made therein.

From April 18, 1973, the membership of the Court was depleted to nine, in view of the retirement, effective on said date, of then Chief Justice Roberto Concepcion. With its nine remaining members, doubts were expressed as to whether or not the Court could act on constitutional matters of the nature and magnitude of those raised in these cases, the required quorum for the resolution of issues of unconstitutionality under the New Constitution being ten members. (Section 2 (2), Article IX, Constitution of the Philippines of 1973). Prescinding from this point, it is a fact that even if it is not required expressly by the Constitution, by the Court’s own policy which the Constitution authorizes it to adopt, all cases involving constitutional questions are heard en banc in which the quorum and at the same time the binding vote is of eight Justices. With only nine members out of a possible membership of fifteen, it was not exactly fair for all concerned that the court should act, particularly in a case which in truth does not involve only those who are actual parties therein but the whole people as well as the Government of the Philippines. So, the Court, even as it went on informally discussing these cases from time to time, preferred to wait for the appointment and qualification of new members, which took place only on October 29. 1973, when Justices Estanislao Fernandez, Cecilia Muñoz Palma and Ramon Aquino joined the Court.

Meantime, subsequent to the resolution of February 26, 1973, declaring these cases submitted for decision, or, more particularly on June 29, 1973, counsel for petitioner Carmen I. Diokno in G. R. No. L-35539 filed a 99-page Supplemental Petition and Motion for Immediate Release which the Court had to refer to the respondents, on whose behalf, the Solicitor General filed an answer on July 30, 1973. On August 14, 1973, counsel for petitioner Diokno filed a motion asking that the said petition and motion be set for hearing, which the Court could not do, in view precisely of the question of quorum. As a matter of fact, in the related case of Benigno S. Aquino, Jr. v. Military Commission No. 2 Et Al., G. R. No. L-37364, further reference to which will be made later, a preliminary hearing had to be held by the Court on Sunday, August 24, 1973, on the sole question of whether or not with its membership of nine then, the Court could act on issues of constitutionality of the acts of the President.

At this point, it may be mentioned incidentally that thru several repeated manifestations and motions, Counsel Francis E. Garchitorena of Petitioner Diokno invited the attention of the Court not only to alleged denial to his client of "the essential access of and freedom to confer and communicate with counsel" but also to alleged deplorable subhuman conditions surrounding his detention. And in relation to said manifestations and motions, on February 19, 1973, said petitioner, Diokno, together with petitioner Benigno S. Aquino and joined by their common counsel, Senator Lorenzo M. Tañada filed with this Court a petition for mandamus praying that respondents be commanded "to permit petitioner Tañada to visit and confer freely and actively with petitioners Diokno and Aquino at reasonable hours pursuant to the provisions of RA 857 and RA 1083 and in pursuance of such decision, (to direct said respondents) (1) to clear the conference room of petitioners of all representatives of the Armed Forces and all unwanted third persons, and prohibit their presence; (2) to remove or cause the removal of all listening devices and other similar electronic equipment from the conference room of petitioners, with the further direction that no such instruments be hereafter installed, and (3) to desist from the practice of examining (a) the notes taken by petitioner Tañada of his conferences with petitioners Diokno and Aquino; and (b) such other legal documents as petitioner Tañada may bring with him for discussion with said petitioners." (G. R. No. L-36315). For obvious reasons, said petition will be resolved in a separate decision. It may be stated here, however, that in said G. R. No. L-36315, in attention to the complaint made by Senator Tañada in his Reply dated April 2, 1973, that Mesdames Diokno and Aquino were not being allowed to visit their husbands, and, worse, their very whereabouts were not being made known to them, on April 6, 1973, after hearing the explanations of counsel for therein respondents, the Court issued the following resolution:jgc:chanrobles.com.ph

"Upon humanitarian considerations. the Court RESOLVED unanimously to grant, pending further action by this Court, that portion of the prayer in petitioners’ ‘Supplement and/or Amendment to Petition’ filed on April 6, 1973 that the wives and minor children of petitioners Diokno and Aquino be allowed to visit them, subject to such precautions as respondents may deem necessary."cralaw virtua1aw library

We have taken pains to recite all the circumstances surrounding the progress of these cases from their inception in order to correct the impression, conveyed by the pleadings of petitioner Diokno, that their disposition has been unnecessarily, if not deliberately, delayed. The Court cannot yield to anyone in being concerned that individual rights and liberties guaranteed by the fundamental law of the land are duly protected and safeguarded. It is fully cognizant of how important not only to the petitioners but also to the maintenance of the rule of law is the issue of legality of the continued constraints on the freedoms of petitioners. Under ordinary circumstances, it does not really take the Court much time to determine whether a deprivation of personal liberty is legal or illegal. But, aside from the unusual procedural setbacks related above it just happens that the basic issues to resolve here do not affect only the individual rights of petitioners. Indeed, the importance of these cases transcends the interests of those who, like petitioners, have come to the Court. Actually, what is directly involved here is the issue of the legality of the existing government itself. Accordingly, We have to act with utmost care. Besides, in a sense, the legality of the Court’s own existence is also involved here, and We do not want anyone to even suspect We have hurried precipitately to uphold Ourselves.

In addition to these considerations, it must be borne in mind that there are thousands of other cases in the Court needing its continued attention. With its clogged docket, the Court, could ill afford to give petitioners any preference that would entail corresponding injustice to other litigants before it.

What is more, under the New Constitution, the administrative jurisdiction over all lower courts, including the Court of Appeals, has been transferred from the Department of Justice to the Supreme Court, and because that Department refrained from attending to any administrative function over the courts since January 17, 1973, on April 18, 1973, after the Ratification Cases became final, We found in Our hands a vast accumulation of administrative matters which had to be acted upon without further delay, if the smooth and orderly functioning of the courts had to be maintained. And, of course, the Court has to continuously attend to its new administrative work from day to day, what with all kinds of complaints and charges being filed daily against judges, clerks of court and other officers and employees of the different courts all over the country, which the Court en banc has to tackle. It should not be surprising at all that a great portion of our sessions en banc has to be devoted to the consideration and disposition of such administrative matters.

Furthermore, in this same connection, account must also be taken of the fact that the transfer of the administrative functions of the Department to the Court naturally entailed problems and difficulties which consumed Our time, if only because some of the personnel had to acquaint themselves with the new functions entrusted to them, while corresponding adjustments had to be made in the duties and functions of the personnel affected by the transfer.



Now, before proceeding to the discussion and resolution of the issues in the pending petitions, two preliminary matters call for disposition, namely, first, the motion of petitioner Jose W. Diokno, thru counsel Senator Tañada, to be allowed to withdraw his basic petition and second, the objection of petitioner, Francisco "Soc" Rodrigo, to the Court’s considering his petition as moot and academic as a consequence of his having been released from his place of confinement in Fort Bonifacio. Related to the latter is the express manifestation of the other petitioners: Joaquin P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez, Ramon V. Mitra, Jr., Juan L. Mercado, Roberto Ordoñez, Manuel Almario and Ernesto Rondon, to the effect that they remain as petitioners, notwithstanding their having been released (under the same conditions as those imposed on petitioner Rodrigo), thereby implying that they are not withdrawing, as, in fact, they have not withdrawn their petitions and would wish them resolved on their merits. (Manifestation of counsel for petitioners dated March 15, 1974.)



Anent petitioner Diokno’s motion to withdraw, only seven members of the Court, namely, Chief Justice Makalintal and Justices Zaldivar, Fernando, Teehankee, Muñoz Palma, Aquino and the writer of this opinion, voted to grant the same. Said number being short of the eight votes required for binding action of the Court en banc even in an incident, pursuant to Section 11 of Rule 56, the said motion is denied, without prejudice to the right of each member of the Court to render his individual opinion in regard to said motion 5

One of the reasons vigorously advanced by petitioner Diokno in his motion to withdraw is that he cannot submit his case to the Supreme Court as it is presently constituted, because it is different from the one in which he filed his petition, and that, furthermore, he is invoking, not the present or New Constitution of the Philippines the incumbent Justices have now sworn to protect and defend but the Constitution of 1935 6 under which they were serving before. Indeed, in the "Manifestation of Compliance and Submission" filed by his counsel as early as December 1, 1973, a similar feeling was already indicated, as may be gathered from the portions thereof quoted earlier in this opinion.

Had petitioner reiterated and insisted on the position asserted by him in said manifestation shortly after the ratification of the New Constitution on January 17, 1973 or even later, after the decision of this Court in the Ratification Cases became final on April 17, 1973, perhaps, there could have been some kind of justification for Our then and there declaring his petition moot and academic, considering his personal attitude of refusing to recognize the passing out of the 1935 Constitution and of the Supreme Court under it. But the fact is that as late as June 29, 1973, more than six months after the ratification of the New Constitution and more than two months after this Court had declared that "there is no more judicial obstacle to the New Constitution being considered as in force and effect", petitioner Diokno, thru counsel Tañada, filed a "Supplemental Petition and Motion for Immediate Release" wherein nary a word may be found suggesting the point that both the Constitution he is invoking and the Court he has submitted his petition to have already passed into inexistence. On the contrary, he insisted in this last motion that "an order be issued (by this Court) directing respondents to immediately file charges against him if they have evidence supporting the same." Be it noted, in this connection, that by resolution of the Court of June 1, 1973, it had already implemented the provisions on the Judiciary of the New Constitution and had constituted itself with its nine members into the First Division, thereby making it unmistakably clear that it was already operating as the Supreme Court under the New Constitution. The fact now capitalized by petitioner that the Justices took the oath only on October 29, 1973 is of no significance, the truth being that neither the Justices’ continuation in office after the New Constitution took effect nor the validity or propriety of the Court’s resolution of June 1, 1973 just mentioned were questioned by him before. Accordingly, the allegation in his motion to withdraw relative to the New Constitution and the present Supreme Court appear to be obvious afterthoughts intended only to lend color to his refusal to have the issue of alleged illegality of his detention duly resolved, realizing perchance the untenability thereof and the inevitability of the denial of his petition, albeit none of this will ever be admitted, as may be gathered from his manifestation that he would not want to have anything to do with any ruling of the Court adverse to his pretensions. Just the same, the new oaths of the Justices and the applicability hereto of the Old and the New Constitution will be discussed in another part of this opinion, if only to satisfy the curiosity of petitioner.

Although the other petitioners have not joined the subject withdrawal motion, it might just as well be stated, for whatever relevant purpose it may serve, that, with particular reference to petitioner Rodrigo, as late as November 27, 1973, after three new justices were added to the membership of the Court in partial obedience to the mandate of the New Constitution increasing its total membership to fifteen, and after the Court had, by resolution of November 15, 1973, already constituted itself into two divisions of six Justices each, said petitioner filed a Manifestation "for the purpose of showing that, insofar as (he) herein petitioner is concerned, his petition for habeas corpusis not moot and academic." Notably, this manifestation deals specifically with the matter of his "conditional release" as being still a ground for habeas corpusbut does not even suggest the fundamental change of circumstances relied upon in petitioner Diokno’s motion to withdraw. On the contrary, said manifestation indicates unconditional submission of said petitioner to the jurisdiction of this Court as presently constituted. Of similar tenor is the manifestation of counsel for the remaining petitioners in these cases dated March 15, 1974. In other words, it appears quite clearly that petitioners should be deemed as having submitted to the jurisdiction of the Supreme Court as it is presently constituted in order that it may resolve their petitions for habeas corpuseven in the light of the provisions of the New Constitution.



Coming now to the conditions attached to the release of the petitioners other that Senators Diokno and Aquino, it is to be noted that they were all given identical release papers reading as follows:jgc:chanrobles.com.ph



M56P                      5 December 1972

SUBJECT: Conditional Release
TO: Francisco Soc Rodrigo

1. After having been arrested and detained for subversion pursuant to Proclamation No. 1081 of the President of the Philippines in his capacity as Commander-in-Chief of the Armed Forces of the Philippines, dated 21 September 1972, you are hereby conditionally released.

2. You are advised to abide strictly with the provisions of Proclamation No. 1081 and the ensuing LOIs. Any violation of these provisions would subject you to immediate arrest and confinement.

3. Your investigation will continue following a schedule which you will later on be informed. You are advised to follow this schedule strictly.

4. You are not allowed to leave the confines of Greater Manila Area unless specifically authorized by this Office indicating the provincial address and expected duration of stay thereat. Contact this Office through telephone No. 97-17-56 when necessary.

5. You are prohibited from giving or participating in any interview conducted by any local or foreign mass media representative for purpose of publication and/or radio/TV broadcast.

6. Be guided accordingly.

(SGD.) MARIANO G. MIRANDA
Lt. Colonel PA
Group Commander



THIS IS TO CERTIFY that I have read and understood the foregoing conditional release.

I HEREBY PLEDGE to conduct myself accordingly and will not engage in any subversive activity. I will immediately report any subversive activity that will come to my knowledge.

(SGD.) F. RODRIGO
Address: 60 Juana Rodriguez
Quezon City
Tel. No. 70-25-66; 70-49-20; 70-27-55"

It is the submission of these petitioners that their release under the foregoing conditions is not absolute, hence their present cases before the Court have not become moot and academic and should not be dismissed without consideration of the merits thereof. They claim that in truth they have not been freed, because actually, what has been done to them is only to enlarge or expand the area of their confinement in order to include the whole Greater Manila area instead of being limited by the boundaries of the army camps wherein they were previously detained. They say that although they are allowed to go elsewhere, they can do so only if expressly and specifically permitted by the army authorities, and this is nothing new, since they could also go out of the camps before with proper passes. They maintain that they never accepted the above conditions voluntarily. In other words, it is their position that they are in actual fact being still so detained and restrained of their liberty against their will as to entitle them in law to the remedy of habeas corpus.

We find merit in this particular submittal regarding the reach of habeas corpus. We readily agree that the fundamental law of the land does not countenance the diminution or restriction of the individual freedoms of any person in the Philippines without due process of law. No one in this country may suffer, against his will, any kind or degree of constraint upon his right to go to any place not prohibited by law, without being entitled to this great writ of liberty, for it has not been designed only against illegal and involuntary detention in jails, prisons and concentration camps, but for all forms and degrees of restraint, without authority of law or the consent of the person concerned, upon his freedom to move freely, irrespective of whether the area within which he is confined is small or large, as long as it is not co-extensive with that which may be freely reached by anybody else, given the desire and the means. More than half a century ago in 1919, this Court already drew the broad and all-encompassing scope of habeas corpusin these unequivocal words: "A prime specification of an application for a writ of habeas corpusis restraint of liberty. The essential object and purpose of the writ of habeas corpusis to inquire into all manners of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. 6* There is no reason at all at this time, hopefully there will never be any in the future, to detract a whit from this noble attitude. Definitely the conditions under which petitioners have been released fall short of restoring to them the freedom to which they are constitutionally entitled. Only a showing that the imposition of said conditions is authorized by law can stand in the way of an order that they be immediately and completely withdrawn by the proper authorities so that the petitioners may again be free men as we are.

And so, We come to the basic question in these cases: Are petitioners being detained or otherwise restrained of liberty evidently against their will, without authority of law and due process?



Aside from those already made reference to above, the other background facts of these cases are as follows:chanrob1es virtual 1aw library

On September 21, 1972, President Ferdinand E. Marcos 7 signed the following proclamation:jgc:chanrobles.com.ph



WHEREAS, on the basis of carefully evaluated and verified information, it is definitely established that lawless elements who are moved by a common or similar ideological conviction, design, strategy and goal and enjoying the active moral and material support of a foreign power and being guided and directed by intensely devoted, well trained, determined and ruthless groups of men and seeking refuge under the protection of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their resources and forces together for the prime purpose of, and in fact they have been and are actually staging, undertaking and waging 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, overthrow the duly constituted Government, and supplant our existing political, social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social, economic, legal and moral precepts are based on the Marxist-Leninist-Maoist teaching and beliefs;

WHEREAS, these lawless elements, acting in concert through seemingly innocent-and harmless, although actually destructive, front organizations which have been infiltrated or deliberately formed by them, have continuously and systematically strengthened and broadened their memberships through sustained and careful recruiting and enlistment of new adherents from among our peasantry, laborers, professionals, intellectuals, students, and mass media personnel, and through such sustained and careful recruitment and enlistment have succeeded in spreading and expanding their control and influence over almost every segment and level of our society throughout the land in their ceaseless effort to erode and weaken the political, social, economic, legal and moral foundations of our existing Government, and to influence, manipulate and move peasant, labor, student and terroristic organizations under their influence or control to commit, as in fact they have committed and still are committing, acts of violence, depredations, sabotage and injuries against our duly constituted authorities, against the members of our law enforcement agencies, and worst of all, against the peaceful members of our society;

WHEREAS, in the fanatical pursuit of their conspiracy and widespread acts of violence, depredations, sabotage and injuries against our people, and in order to provide the essential instrument to direct and carry out their criminal design and unlawful activities, and to achieve their ultimate sinister objectives, these lawless elements have in fact organized, established and are now maintaining a Central Committee, composed of young and dedicated radical students and intellectuals, which is charged with guiding and directing the armed struggle and propaganda assaults against our duly constituted Government, and this Central Committee is now imposing its will and asserting its sham authority on certain segments of our population, especially in the rural areas, through varied means of subterfuge, deceit, coercion, threats, intimidations, machinations, treachery, violence and other modes of terror, and has been and is illegally exacting financial and other forms of tributes from our people to raise funds and material resources to support its insurrectionary and propaganda activities against our duly constituted Government and against our peace-loving people;

WHEREAS, in order to carry out, as in fact they have carried out, their premeditated plan to stage, undertake and wage a full scale armed insurrection and rebellion in this country, these lawless elements have organized, established and are now maintaining a well trained, well armed and highly indoctrinated and greatly expanded insurrectionary force, popularly known as the New People’s Army,’ which has since vigorously pursued and still is vigorously pursuing a relentless and ruthless armed struggle against our duly constituted Government and whose unmitigated forays, raids, ambuscades, assaults and reign of terror and acts of lawlessness in the rural areas and in our urban centers brought about the teacherous and cold-blooded assassination of innocent civilians, military personnel of the Government and local public officials in many parts of the country, notably in the Cagayan Valley, in Central Luzon, in the Southern Tagalog Region, in the Bicol Area, in the Visayas and in Mindanao, and whose daring and wanton guerrilla activities have generated and sown fear and panic among our people, have created a climate of chaos and disorder, produced a state of political, social, psychological and economic instability in our land, and have inflicted great suffering and irreparable injury to persons and property in our society;

WHEREAS, these lawless elements, their cadres, fellow travellers, friends, sympathizers and supporters have for many years up to the present time been mounting sustained, massive and destructive propaganda assaults against our duly constituted Government its instrumentalities, agencies and officials, and also against our social, political, economic and religious institutions, through the publications, broadcasts and disseminations of deliberately slanted and overly exaggerated news stories and news commentaries as well as false, vile, foul and scurrilous statements, utterances, writings and pictures through the press-radiotelevision media and through leaflets, college campus newspapers and some newspapers published and still being published by these lawless elements, notably the ‘Ang Bayan,’ ‘Pulang Bandila’ and the ‘Ang Komunista,’ all of which are clearly well-conceived, intended and calculated to malign and discredit our duly constituted Government, its instrumentalities, agencies and officials before our people, making it appear to the people that our Government has become so weak and so impotent to perform and discharge its functions and responsibilities in our society and to our people, and thus undermine and destroy the faith and loyalty and allegiance of our people in and alienate their support for their duly constituted Government, its instrumentalities, agencies and officials, and thereby gradually erode and weaken as in fact they had so eroded and weakened the will of our people to sustain and defend our Government and our democratic way of life;

WHEREAS, these lawless elements having taken up arms against our duly, constituted Government and against our people, and having committed and are still committing acts of armed insurrection and rebellion consisting of armed raids, forays, sorties, ambushes, wanton acts of murders, spoilage, plunder, looting, arsons, destruction of public and private buildings, and attacks against innocent and defenseless civilian lives and property, all of which activities have seriously endangered and continue to endanger public order and safety and the security of the nation, and acting with cunning and manifest precision and deliberation and without regard to the health, safety and well-being of the people, are now implementing their plan to cause widespread, massive and systematic destruction and paralyzation of vital public utilities and services, particularly water systems, sources of electrical power, communication and transportation facilities, to the great detriment, suffering, injury and prejudice of our people and the nation and to generate a deep psychological fear and panic among our people;

WHEREAS, the Supreme Court in the cases brought before it, docketed as G. R. Nos. L-33964, L-33965, L-33973, L-33982, L-34004, L34013, L-34039, L-34265, and L-34339, as a consequence of the suspension of the privilege of the writ of habeas corpusby me as President of the Philippines in my Proclamation No. 889, dated August 21, 1971, as amended, has found that in truth and in fact there exists an actual insurrection and rebellion in the country by a seizable group of men who have publicly risen in arms to overthrow the Government. Here is what the Supreme Court said in its decision promulgated on December 11, 1971:chanrob1es virtual 1aw library

‘. . . our jurisprudence attests abundantly to the Communist activities in the Philippines, especially in Manila, from the late twenties to the early thirties, then aimed principally at incitement to sedition or rebellion, as the immediate objective. Upon the establishment of the Commonwealth of the Philippines, the movement seemed to have waned notably; but, the outbreak of World War II in the Pacific and the miseries, the devastation and havoc, and the proliferation of unlicensed firearms concomitant with the military occupation of the Philippines and its subsequent liberation, brought about, in the late forties, a resurgence of the Communist threat, with such vigor as to be able to organize and operate in Central Luzon an army � called HUKBALAHAP, during the occupation, and renamed Hukbong Mapagpalaya ng Bayan (HMB) after liberation � which clashed several times with the Armed Forces of the Republic. This prompted then President Quirino to issue Proclamation No. 210, dated October 22, 1950, suspending the privilege of the writ of habeas corpusthe validity of which was upheld in Montenegro v. Castaneda. Days before the promulgation of said Proclamation, or on October 18, 1950, members of the Communist Politburo in the Philippines were apprehended in Manila. Subsequently accused and convicted of the crime of rebellion, they served their respective sentences.

‘The fifties saw a comparative lull in Communist activities, insofar as peace and order were concerned. Still, on June 20, 1957, Republic Act No. 1700, otherwise known as the Anti Subversion Act, was approved, upon the Founds stated in the very preamble of said statute � that

‘. . . the Communist Party of the Philippines, although purportedly a political party, is in fact an organized conspiracy to overthrow the Government of the Republic of the Philippines, not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control,

‘. . . the continued existence and activities of the Communist Party of the Philippines constitutes a clear, present and grave danger to the security of the Philippines; and

‘. . . in the face of the organized, systematic and persistent subversion, national in scope but international in direction, posed by the Communist Party of the Philippines and its activities, there is urgent need for special legislation to cope with this continuing menace to the freedom and security of the country . . .’

"In the language of the Report on Central Luzon, submitted, on September 4, 1971, by the Senate Ad Hoc Committee of Seven � copy of which Report was filed in these cases by the petitioners herein �

‘The years following 1963 saw the successive emergence in the country of several mass organizations, notably the Lapiang Manggagawa (now the Socialist Party of the Philippines) among the workers, the Malayang Samahan ng mga Magsasaka (MASAKA) among the peasantry; the Kabataang Makabayan (KM) among the youth/students; and the movement for the Advancement of Nationalism (MAN) among the intellectuals/professionals, the PKP has exerted all-out effort to infiltrate, influence and utilize these organizations in promoting its radical brand of nationalism.’

"Meanwhile, the Communist leaders in the Philippines had been split into two (2) groups, one of which � composed mainly of young radicals, constituting the Maoist faction � reorganized the Communist Party of the Philippines early in 1969 and established a New People’s Army. This faction adheres to the Maoist concept of the ‘Protracted People’s War’ or ‘War of National Liberation.’ Its ‘Programme for a People’s Democratic Revolution’ states, inter alia:chanrob1es virtual 1aw library

‘The Communist Party of the Philippines is determined to implement its general programme for a people’s democratic revolution. All Filipino communists are ready to sacrifice their lives for the worthy cause of achieving the new type of democracy, of building a new Philippines that is genuinely and completely independent, democratic, united, just and prosperous. . .

‘The central task of any revolutionary movement is to seize political power. The Communist Party of the Philippines assumes this task at a time that both the international and national situations are favorable, to taking the road of armed revolution . . .’

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

‘It any rate, two (2) facts are undeniable: (a) all Communists, whether they belong to the traditional group or to the Maoist faction, believe that force and violence are indispensable to the attainment of their main and ultimate objective, and act in accordance with such belief, although they disagree on the means to be used at a given time and in a particular place; and (b) there is a New People’s Army, other, of course, than the Armed Forces of the Republic and antagonistic thereto. Such New People’s Army is per see proof of the existence of a rebellion, especially considering that its establishment was announced publicly by the reorganized CPP. Such announcement is in the nature of a public challenge to the duly constituted authorities and may be likened to a declaration of war, sufficient to establish a war status or a condition of belligerency, even before the actual commencement of hostilities.

‘We entertain, therefore, no doubts about the existence of a seizable group of men who have publicly risen in arms to overthrow the Government and have thus been and still are engage in rebellion against the Government of the Philippines.’

"WHEREAS, these lawless elements have to a considerable extent succeeded in impeding our duly constituted authorities from performing their functions and discharging their duties and responsibilities in accordance with our laws and our Constitution to the great damage, prejudice and detriment of the people and the nation;

"WHEREAS, it is evident that there is throughout the land a state of anarchy and lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the forces of our duly constituted Government and the New People’s Army and their satellite organizations because of the unmitigated forays, raids, ambuscades, assaults, violence, murders, assassinations, acts of terror, deceits, coercion’s, threats, intimidations, treachery, machinations, arsons, plunders and depredations committed and being committed by the aforesaid lawless elements who have pledged to the whole nation that they will not stop their dastardly effort and scheme until and unless they have fully attained their primary and ultimate purpose of forcibly seizing political and state power in this country by overthrowing our present duly constituted Government, by destroying our democratic way of life and our established secular and religious institutions and beliefs, and by supplanting our existing political, social, economic, legal and moral order with an entirely new one whose form of government, whose notion of individual rights and family relations, and whose political, social, economic and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs;

"WHEREAS, the Supreme Court in its said decision concluded that the unlawful activities of the aforesaid lawless elements actually pose a clear, present and grave danger to public safety and the security of the nation and in support of that conclusion found that:chanrob1es virtual 1aw library

‘. . . the Executive had information and reports � subsequently confirmed, in many respects, by the abovementioned Report of the Senate Ad Hoc Committee of Seven � to the effect that the Communist Party of the Philippines does not merely adhere to Lenin’s idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh’s terrorist tactics and resorted to the assassination of uncooperative local officials; that, in line with this policy, the insurgents have killed 5 mayors, 20 barrio captains and 3 chiefs of police; that there were fourteen (14) meaningful bombing incidents in the Greater Manila Area in 1970; that the Constitutional Convention Hall was bombed on June 12, 1971; that, soon after the Plaza Miranda incident, the NAWASA main pipe at the Quezon City San Juan boundary, was bombed; that this was followed closely by the bombing of the Manila City Hall, the COMELEC Building, the Congress Building and the MERALCO sub-station at Cubao, Quezon City; and that the respective residences of Senator Jose J. Roy and Congressman Eduardo Cojuangco were, likewise, bombed, as were the MERALCO main office premises, along Ortigas Avenue, and the Doctor’s Pharmaceuticals, Inc. Building, in Caloocan City.

‘. . . the reorganized Communist Party of the Philippines has, moreover, adopted Mao’s concept of protracted people’s war, aimed at the paralyzation of the will to resist of the Government, of the political, economic and intellectual leadership, and of the people themselves; that conformably to such concept, the Party has placed special emphasis upon a most extensive and intensive program of subversion by the establishment of front organizations in urban centers, the organization of armed city partisans and the infiltration in student groups, labor unions, and farmer and professional groups; that the CPP has managed to Infiltrate or establish and control nine (9) major labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM), and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had two hundred forty-five (245) operational chapters throughout the Philippines of which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these actions were organized, coordinated or led by the aforementioned front organizations; that the violent demonstrations were generally instigated by a small, but well-trained group of armed agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen (16) persons and the injury of many more.

‘Subsequent events . . . have also proven . . . the threat to public safety posed by the New People’s Army. Indeed, it appears that, since August 21, 1971, it had in Northern Luzon six (6) encounters and staged one (1) raid, in consequences of which seven (7) soldiers lost their lives and two (2) others were wounded, whereas the insurgents suffered five (5) casualties; that on August 26, 1971, a well-armed group of NPA trained by defector Lt. Victor Corpus, attacked the very command post of TF LAWIN in Isabela, destroying two (21 helicopters and one (1) plane, and wounding one (1) soldier; that the NPA had in Central Luzon a total of four (4) encounters, with two (2) killed and three (3) wounded on the side of the Government, one (1) BSDU killed and three (3) KM-SDK leader, an unidentified dissident, and Commander Panchito, leader of the dissident group were killed that on August 26, 1971, there was an encounter in the barrio of San Pedro, Iriga City, Camarines Sur, between the PC and the NPA, in which a PC and two (2) KM members were killed; that the current disturbances in Cotabato and the Lanao provinces have been rendered more complex by the involvement of the CPP/NPA, for, in mid-1971, a KM group, headed by Jovencio Esparagoza, contacted the Higaonan tribes, in their settlement in Magsaysay, Misamis Oriental, and offered them books, pamphlets and brochures of Mao Tse Tung, as well as conducted teach-ins in the reservation; that Esparagoza was reportedly killed on September 22, 1971, in an operation of the PC in said reservation; and that there are now two (2) NPA cadres in Mindanao.

‘It should, also be noted that adherents of the CPP and its front organizations are, according to intelligence findings, definitely capable of preparing powerful explosives out of locally available materials; that the bomb used in the Constitutional Convention Hall was a ‘Claymore’ mine, a powerful explosive device used by the U.S. Army, believed to have been one of many pilfered from the Subic Naval Base a few days before; that the President had received intelligence information to the effect that there was a July-August Plan involving a wave of assassinations, kidnappings, terrorism and mass destruction of property and that an extraordinary occurrence would signal the beginning of said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a sizeable part of our armed forces discharges other functions, and that the expansion of the CPP activities from Central Luzon to other parts of the country, particularly Manila and its suburbs, the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and the Bicol Region, required that the rest of our armed forces be spread thin over a wide area.’

"WHEREAS, in the unwavering prosecution of their revolutionary war against the Filipino people and their duly constituted Government, the aforesaid lawless elements have, in the months of May, June and July, 1972, succeeded in bringing and introducing into the country at Digoyo Point, Palanan, Isabela and at other undetermined points along the Pacific coastline of Luzon, a substantial quantity of war material consisting of M-14 rifles estimated to be some 8,500 pieces, several dozens of 40 mm rocket launchers which are said to be Chicom copies of a Russian prototype rocket launcher, large quantities of 80 mm rockets and ammunitions, and other combat paraphernalia, of which war material some had been discovered and captured by government military forces, and the bringing and introduction of such quantity and type-of war material into the country is a mute but eloquent proof of the sinister plan of the aforesaid lawless elements to hasten the escalation of their present revolutionary war against the Filipino people and their legitimate Government;

"WHEREAS, in the execution of their overall revolutionary plan, the aforesaid lawless elements have prepared and released to their various field commanders and Party workers a document captioned ‘REGIONAL PROGRAM OF ACTION 1972,’ a copy of which was captured by elements of the 116th and 119th Philippine Constabulary Companies on June 18, 1972 at Barrio Taringsing, Cordon, Isabela, the text of which reads as follows:chanrob1es virtual 1aw library



‘The following Regional Program of Action 1972 is prepared to be carried out as part of the overall plan of the party to foment discontent and precipitate the tide of nationwide mass revolution. The fascist Marcos and his reactionary members of Congress is expected to prepare themselves for the 1973 hence:chanrob1es virtual 1aw library

‘January � June:chanrob1es virtual 1aw library

‘1. Intensify recruitment of new party members especially from the workers-farmers class. Cadres are being trained in order to organize the different regional bureaus. These bureaus must concentrate on mass action and organization to promote advancement of the mass revolutionary movement. Reference is made to the ‘Borador ng Programa sa Pagkilos at Ulat ng Panlipunang Pagsisiyasat’ as approved by the Central Committee.

‘2. Recruit and train armed city partisans and urban guerrillas and organize them into units under Party cadres and activities of mass organizations. These units must undergo specialized training on explosives and demolition and other forms of sabotage.

‘3. Intensify recruitment and training of new members for the New People’s Army in preparation for limited offensive in selected areas in the regions.

‘4. Support a more aggressive program of agitation and propaganda against the reactionary armed forces and against the Con-Con.

‘July � August:chanrob1es virtual 1aw library

‘During this period the Party expects the puppet Marcos government to allow increase in bus rates thus aggravating further the plight of students, workers and the farmers.

‘1. All Regional Party Committees must plan for a general strike movement. The Regional Operational Commands must plan for armed support if the fascist forces of Marcos will try to intimidate the oppressed Filipino masses.

‘2. Conduct sabotage against schools, colleges and universities hiking tuition fees.

‘3. Conduct sabotage and agitation against puppet judges and courts hearing cases against top party leaders.

‘4. Create regional chaos and disorder to dramatize the inability of the fascist Marcos Government to keep and maintain peace and order thru:chanrob1es virtual 1aw library

‘a) Robbery and hold-up of banks controlled by American imperialists and those belonging to the enemies of the people.

‘b) Attack military camps, US bases and towns.

‘c) More violent strikes and demonstrations.

‘September � October:chanrob1es virtual 1aw library

‘Increase intensity of violence, disorder and confusion:chanrob1es virtual 1aw library

‘1. Intensify sabotage and bombing of government buildings and embassies and other utilities:chanrob1es virtual 1aw library

‘a) Congress

‘b) Supreme Court

‘c) Con-Con

‘d) City Hall

‘e) US Embassy

‘f) facilities of US Bases

‘g) Provincial Capitols

‘h) Power Plants

‘i) PLDT

j) Radio Stations

‘2. Sporadic attacks on camps, towns and cities.

‘3. Assassinate high Government officials of Congress, Judiciary, Con-Con and private individuals sympathetic to puppet Marcos.

‘4. Estability provisional revolutionary government in towns and cities with the support of the masses.

‘5. With the sympathetic support of our allies, establish provisional provincial revolutionary governments.



"WHEREAS, in line with their ‘REGIONAL PROGRAM OF ACTION 1972,’ the aforesaid lawless elements have of late been conducting intensified acts of violence and terrorisms during the current year in the Greater Manila Area such as the bombing of the Area building at Taft Avenue, Pasay City, on March 15; of the Filipinas Orient Airways board room at Domestic Road, Pasay City on April 23; of the Vietnamese Embassy on May 30; of the Court of Industrial Relations on June 23; of the Philippine Trust Company branch office in Cubao, Quezon City on June 24; of the Philamlife building at United Nations Avenue, Manila, on July 3; of the Tabacalera Cigar & Cigarette Factory Compound at Marquez de Comillas, Manila on July 27; of the PLDT exchange office at East Avenue, Quezon City, and of the Philippine Sugar Institute building at North Avenue, Diliman, Quezon City, both on August 15; of the Department of Social Welfare building at San Rafael Street, Sampaloc, Manila, on August 17; of a water main on Aurora Boulevard and Madison Avenue, Quezon City on August 19; of the Philamlife building again on August 30; this time causing severe destruction on the Far East Bank and Trust Company building nearby of the armored car and building of the Philippine Banking Corporation as well as the buildings of the Investment Development, Inc. and the Daily Star Publications when another explosion took place on Railroad Street, Port Area, Manila also on August 30; of Joe’s Department Store on Carriedo Street, Quiapo, Manila, on September 5, causing death to one woman and injuries to some 38 individuals; and of the City Hall of Manila on September 8; of the watermains in San Juan, Rizal on September 12; of the San Miguel Building in Makati, Rizal on September 14; and of the Quezon City Hall on September 18,1972, as well as the attempted bombing of the Congress Building on July 18, when an unexploded bomb was found in the Senate Publication Division and the attempted bombing of the Department of Foreign Affairs on August 30;

"WHEREAS, in line with the same ‘REGIONAL PROGRAM OF ACTION 1972,’ the aforesaid lawless elements have also fielded in the Greater Manila area several of their ‘Sparrow Units’ or ‘Simbad Units’ to undertake liquidation missions against ranking government officials, military personnel and prominent citizens and to further heighten the destructions and depredations already inflicted by them upon our innocent people, all of which are being deliberately done to sow terror, fear and chaos amongst our population and to make the Government look so helpless and incapable of protecting the lives and property of our people;

"WHEREAS, in addition to the above-described social disorder, there is also the equally serious disorder in Mindanao and Sulu resulting from the unsettled conflict between certain elements of the Christian and Muslim population of Mindanao and Sulu, between the Christian ‘Ilagas’ and the Muslim ‘Barracudas,’ and between our government troops, and certain lawless organizations such as the Mindanao Independence Movement;

"WHEREAS, the Mindanao Independence Movement with the active material and financial assistance of foreign political and economic interests, is engaged in an open and unconcealed attempt to establish by violence and force a separate and independent political state out of the islands of Mindanao and Sulu which are historically, politically and by law parts of the territories and within the jurisdiction and sovereignty of the Republic of the Philippines:jgc:chanrobles.com.ph

"WHEREAS, because of the aforesaid disorder resulting from armed clashes, killings, massacres, arsons, rapes, pillages, destruction of whole villages and towns and the inevitable cessation of agricultural and industrial operations, all of which have been brought about by the violence inflicted by the Christians, the Muslims, the ‘Ilagas,’ the ‘Barracudas,’ and the Mindanao Independence Movement against each other and against our government troops, a great many parts of the islands of Mindanao and Sulu are virtually now in a state of actual war;

"WHEREAS, the violent disorder in Mindanao and Sulu has to date resulted in the killing of over 1,000 civilians and about 2,000 armed Muslims and Christians, not to mention the more than five hundred thousand of injured, displaced and homeless persons as well as the great number of casualties among our government troops, and the paralyzation of the economy of Mindanao and Sulu;

"WHEREAS, because of the foregoing acts of armed insurrection, wanton destruction of human lives and property, unabated and unrestrained propaganda attacks against the government and its institutions, instrumentalities, agencies and officials, and the rapidly expanding ranks of the aforesaid lawless elements, and because of the spreading lawlessness and anarchy throughout the land, all of which have prevented the Government to exercise its authority, extend to its citizenry the protection of its laws and in general exercise its sovereignty over all of its territories, caused serious demoralization among our people and have made the public apprehensive and fearful, and finally because public order and safety and the security of this nation demand that immediate, swift, decisive and effective action be taken to protect and insure the peace, order and security of the country and its population and to maintain the authority of the Government;

"WHEREAS, in cases of invasion, insurrection or rebellion or imminent danger thereof, I, as President of the Philippines, have, under the Constitution, three courses of action open to me, namely: (a) call out the armed forces to suppress the present lawless violence; (b) suspend the privilege of the writ of habeas corpusto make the arrest and apprehension of these lawless elements easier and more effective; or (c) place the Philippines or any part thereof under martial law;

"WHEREAS, I have already utilized the first two courses of action, first, by calling upon the armed forces to suppress the aforesaid lawless violence, committing to that specific job almost 50% of the entire armed forces of the country and creating several task forces for that purpose such as Task Force Saranay, Task Force Palanan, Task Force Isarog, Task Force Pagkakaisa and Task Force Lancaf, and, second, by suspending the privilege of the writ of habeas corpuson August 21, 1971 up to January 11, 1972, but inspite of all that, both courses of action were found inadequate and ineffective to contain, much less solve, the present rebellion and lawlessness in the country as shown by the fact that:chanrob1es virtual 1aw library

1. The radical left has increased the number and area of operation of its front organizations and has intensified the recruitment and training of new adherents in the urban and rural areas especially from among the youth;

2. The Kabataang Makabayan (KM), the most militant and outspoken front organization of the radical left, has increased the number of its chapters from 200 as of the end of 1970 to 317 as of July 31, 1972 and its membership from 10,000 as of the end of 1970 to 15,000 as of the end of July, 1972, showing very clearly the rapid growth of the communist movement in this country;

3. The Samahang Demokratiko ng Kabataan (SDK), another militant and outspoken front organization of the radical left, has also increased the number of its chapters from an insignificant number at the end of 1970 to 159 as of the end of July, 1972 and has now a membership of some 1,495 highly indoctrinated, intensely committed and almost fanatically devoted individuals;

4. The New People’s Army, the most active and the most violent and ruthless military arm of the radical left, has increased its total strength from an estimated 6,500 (composed of 560 regulars, 1,500 combat support and 4,400 service support) as of January 1, 1972 to about 7,900 (composed of 1,028 regulars, 1,800 combat support and 5,025 service support) as of July 31, 1972, showing a marked increase in its regular troops of over 100% in such a short period of six months;

5. The establishment of sanctuaries for the insurgents in Isabela, in Zambales, in Camarines Sur, and in some parts of Mindanao, a development heretofore unknown in our campaign against subversion and insurgency in this country;

6. The disappearance and dropping out of school of some 3,000 high school and college students and who are reported to have joined with the insurgents for training in the handling of firearms and explosives,

7. The bringing and introduction into the country of substantial war material consisting of military hardware and supplies through the MV Karagatan at Digoyo Point, Palanan, Isabela, and the fact that many of these military hardware and supplies are now in the hands of the insurgents and are being used against our Government troops;

8. The infiltration and control of the media by persons who are sympathetic to the insurgents and the consequent intensification of their propaganda assault against the Government and the military establishment of the Government;

9. The formation at the grass-root level of ‘political power organs,’ heretofore unknown in the history of the Communist movement in this country, composed of Barrio Organizing Committees (BOCs) to mobilize the harrio people for active involvement in the revolution; the Barrio Revolutionary Committees (BRCs) to act as ‘local governments in barrios considered as CPP/NPA bailiwicks; the Workers Organizing Committees (WOCs) to organize workers from all sectors; the School Organizing Committees (SOCs) to conduct agitation and propaganda activities and help in the expansion of front groups among the studentry; and the Community Organizing Committees (COCs) which operate in the urban areas in the same manner as the BOCs;

"WHEREAS, the rebellion and armed action undertaken by these lawless elements of the communist and other armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force have assumed the magnitude of an actual state of war against our people and the Republic of the Philippines;

"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 maignia, 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.

"IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

"Done in the City of Manila, this 21st day of September, in the year of Our Lord, nineteen hundred and seventy-two.

"(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"

On September 22, 1972 at 9 o’clock in the evening, clearance for the implementation of the proclamation was granted, and forthwith, the following general order, among others, was issued:jgc:chanrobles.com.ph



(ORDERING THE SECRETARY OF NATIONAL DEFENSE TO ARREST THE PERSONS NAMED IN THE ATTACHED LIST, AS WELL AS OTHER PERSONS WHO MAY HAVE COMMITTED CRIMES AND OFFENSES ENUMERATED IN THE ORDER).

Pursuant to Proclamation No. 1081, dated September 21, 1912, and in my capacity as Commander-in-Chief of all the Armed Forces of the Philippines and for being active participants 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 their 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, I hereby order you as Secretary of National Defense to forthwith arrest or case the arrest and take into your custody the individuals named in the attached list and to hold them 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 authorized representative, 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 well as persons who have committed crimes against national security and the law of nations, crimes against the fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, title, improper use of name, uniform and insignia, including persons guilty of crimes as public officers, as well as those persons who may have violated any decree or order promulgated by me personally’ or promulgated upon my direction.

Done in the City of Manila, this 22nd day of September, in the year of Oar Lord, nineteen hundred and seventy-two.

(SGD.) FERDINAND E. MARCOS
PRESIDENT
REPUBLIC OF THE PHILIPPINES"

In the list referred to in this order were the names, among others, of all the petitioners herein. Thus, from shortly after midnight of September 22, 1972 until they were all apprehended, petitioners were taken one by one, either from their homes or places of work, by officers and men of the Armed Forces of the Philippines, without the usual warrant of arrest, and only upon orders of the respondent Secretary of National Defense directed to his co-respondent, the Chief of Staff of the Armed Forces. They have been since then confined either at Camp Bonifacio, Camp Crame or some other military camp, until, as earlier adverted to, they were released subject to certain conditions, with the exception of petitioners Diokno and Aquino, who are still in custody up to the present.

The particular case of petitioner Aquino

As regards petitioner Aquino, it appears from his allegations in his petition and supplemental petition for prohibition in G. R. No. L-37364, already referred to earlier, (1) that on August 11, 1973, six criminal charges, for illegal possession of firearms, etc., murder and violation of RA 1700 or the Anti-Subversion Act, were filed against him with Military Commission No. 2, created under General Orders Nos. 8, 12 and 39, (2) that on August 28, 1973, the President created, thru Administrative Order No. 355, a special committee to undertake the preliminary investigation or reinvestigation of said charges, and (3) that he questions the legality of his prosecution in a military commission instead of in a regular civilian court as well as the creation of the special committee, not only because of alleged invalidity of Proclamation 1081 and General Order No. 2 and the orders authorizing the creation of military commissions out also because Administrative Order No. 355 constitutes allegedly a denial of the equal protection of the laws to him and to the others affected thereby.

From the procedural standpoint, these developments did not warrant the filing of a separate petition. A supplemental petition in G.R. No. L-35546, wherein he is one of the petitioners, would have sufficed. But inasmuch as petitioner Aquino has chosen to file an independent special civil action for prohibition in said G.R. No. L-37364 without withdrawing his petition for habeas corpusin G.R. No. L-35646, We wish to make it clear that in this decision, the Court is going to resolve, for purposes of the habeas corpuspetition of said petitioner, only the issues he has raised that are common with those of the rest of the petitioners in all these cases, thereby leaving for resolution in G.R. No. L-37364 all the issues that are peculiar only to him. In other words, insofar as petitioner Aquino is concerned, the Court will resolve in this decision the question of legality of his detention by virtue of Proclamation 1081 and General Order No. 2, such that in G.R. No. L-37364, what will be resolved will be only the constitutional issues related to the filing of charges against him with Military Commission No. 2, premised already on whatever will be the Court’s resolution in the instant case regarding Proclamation 1081 and General Order No. 2.

With respect to the other petitioners, none of them stands charged with any offense before any court or military commission. In fact, they all contend that they have not committed any act for which they can be held criminally liable.

Going back to the facts, it may be mentioned, at this juncture, that on the day Proclamation 1081 was signed, the Congress of the Philippines was actually holding a special session scheduled to end on September 22,1 972. It had been in uninterrupted session since its regular opening in January, 1972. Its regular session was adjourned on May 18, 1972, followed by three special sessions of thirty days each, 8 from May 19 to June 22, June 23 to July 27 and July 28 to August 31, and one special session of twenty days, from September 1 to September 22.

As a matter of fact, petitioner Aquino was in a conference of a joint committee of the Senate and the House of Representatives when he was arrested in one of the rooms of the Elilton Hotel in Manila.

It must also be stated at this point that on November 30, 1972, the Constitutional Convention of 1971, which convened on June 1, 1971 and had been in continuous session since then, approved a New Constitution; that on January 17, 1973, Proclamation 1102 was issued proclaiming the ratification thereof; and that in the Ratification Cases aforementioned, the Supreme Court rendered on March 31, 1973, a judgment holding that "there is no further judicial obstacle to the New Constitution being considered in force and effect." Among the pertinent provisions of the New Constitution is Section 3 (2) of Article XVII which reads thus:jgc:chanrobles.com.ph

"(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, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly."cralaw virtua1aw library

Before closing this narration of facts, it is relevant to state that relative to petitioner Diokno’s motion to withdraw, respondent filed under date of May 13, 1974 the following Manifestation:jgc:chanrobles.com.ph

"COME NOW respondents, by the undersigned counsel, and to this Honorable Court respectfully submit this manifestation:chanrob1es virtual 1aw library

1. In a Motion dated December 29, 1973, petitioner, through counsel, prayed for the withdrawal of the above-entitled case, more particularly the pleadings filed therein. Respondents’ Comments dated January 17, 1974, petitioners’ Reply dated March 7, 1974, and respondents’ Rejoinder dated March 27, 1974 were subsequently submitted to this Honorable Court:chanrob1es virtual 1aw library

2. The motion to withdraw has been used for propaganda purposes against the Government, including the Supreme Court. Lately, the propaganda has been intensified and the detention of petitioner and the pendency of his case in this Court have been exploited;

3. We are aware that the issues raised in this case are of the utmost gravity and delicacy. This is the reason we said that the decision in these cases should be postponed until the emergency, which called for the proclamation of martial law, is over. While this position is amply supported by precedents and is based on sound policy considerations, we now feel that to protect the into Fity of government institutions, including this Court, from scurrilous propaganda now being waged with relentlessness, it would be in the greater interest of the Nation to have the motion to withdraw resolved and if denied, to have the petition itself decided;

4. This is not to say that the emergency is over, but only to express a judgment that in view of recent tactics employed in the propaganda against the Government, it is preferable in the national interest to have the issues stirred by this litigation settled in this forum. For, indeed, we must state and reiterate that: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.

Respectfully submitted
Manila, Philippines, May 13, 1974."cralaw virtua1aw library
(Vol. II, Rollo, L-35539.)

and that earlier, in connection with the issue of jurisdiction of the Supreme Court over the instant cases, the respondents invoked General Orders Nos. 3 and 3-A reading as follows:jgc:chanrobles.com.ph



WHEREAS, martial law having been declared under Proclamation No. 1081, dated September 21, 1972 and is now in effect throughout the land;

WHEREAS, martial law, having been declared because of wanton destruction of lives and property, widespread lawlessness and anarchy, and chaos and disorder now prevailing throughout the country, which condition has been brought about by groups of men who are actively engaged in a criminal conspiracy to seize political and state power in the Philippines in order to take over the Government by force and violence, the extent of which has now assumed the proportion of an actual war against our people and their legitimate Government; and

WHEREAS, in order to make more effective the implementation of the aforesaid Proclamation No. 1081 without unduly affecting the operations of the Government, and in order to end the present national emergency within the shortest possible time;

NOW, THEREFORE, I, FERDINAND E. MARCOS, Commander-in-Chief of all the Armed Forces of the Philippines, and pursuant to Proclamation No. 1081, dated September 21, 1972, do hereby order that henceforth all executive departments, bureaus, offices, agencies and instrumentalities of the National Government, government-owned or controlled corporations, as well as all governments of all the provinces, edits, municipalities and barrios throughout the land shall continue to function under their present officers and employees and in accordance with existing laws, until otherwise ordered by me or by my duly designated representative.

I do hereby further order that the Judiciary shall continue to function in accordance with its present organization and personnel, and shall try and decide in accordance with existing laws all criminal and civil cases, except the following cases:chanrob1es virtual 1aw library

1. Those involving the validity, legality or constitutionality of any decree, order or acts issued, promulgated or performed by me or by my duly designated representative pursuant to Proclamation No. 1081, dated September 21, 1972.

2. Those involving the validity or constitutionality of any rules, orders, or acts issued, promulgated or performed by public servants pursuant to decrees, orders, rules and regulations issued and promulgated by me or by my duly designated representative pursuant to Proclamation No. 1081, dated September 21, 1972.

3. Those involving crimes against national security and the law of nations.

4. Those involving crimes against the fundamental laws of the State.

5. Those involving crimes against public order.

6. Those Crime involving usurpation of authority, rank, title, and improper use of names, uniforms, and insignia.

7. Those involving crimes committed by public of officers

Done in the City of Manila, this 22nd day of September, in the year of Our Lord, nineteen hundred and seventy-two.

(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"



Sub-paragraph 1 of the second paragraph of the dispositive portion of General Order No. 3, dated September 22, 1972, is hereby amended to read as follows:chanrob1es virtual 1aw library



1. Those involving the validity, legality, or constitutionality of Proclamation No. 1081, dated September 21, 1972, or of any decree, order or acts issued, promulgated or performed by me or by my duly designated representative pursuant thereto.



Done in the City of Manila, this 24th day of September, in the year of Our Lord, nineteen hundred and seventy-two.

(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"

Likewise relevant are the issuance by the President on January 17, 1973 of Proclamation 1104 reading thus:jgc:chanrobles.com.ph



WHEREAS, Barangays (Citizens Assemblies) were created in barrios in municipalities and in districts/wards in chartered cities pursuant to Presidential Decree No. 86, dated December 31, 1972, composed of all persons who are residents of the barrio, district or ward for at least six months, fifteen years of age or over, citizens of the Philippines and who are registered in the list of Citizen Assembly members kept by the barrio, district or ward secretary;

WHEREAS, the said Barangays were established precisely to broaden the base of citizen participation in the democratic process and to afford ample opportunities for the citizenry to express their views on important national issues;

WHEREAS, pursuant to Presidential Decree No. 86-A, dated January 5, 1973 and Presidential Decree No. 86-B, dated January 7, 1973, the question was posed before the Barangays: Do yon want martial law to continue?

WHEREAS, fifteen million two-hundred twenty-four thousand five hundred eighteen (15,224,518) voted for the continuation of martial law as against only eight hundred forty-three thousand fifty-one (843,051) who voted against it;

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby declare that martial law shall continue in accordance with the needs of the time and the desire of the Filipino people.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the Republic of the Philippines to be affixed.

Done in the City of Manila, this 17th day of January, in the year of Our Lord, nineteen hundred and seventy-three.

(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines"

and the holding of a referendum on July 27-28, 1973 which as evidenced by the COMELEC proclamation of August 3, 1973 resulted in the following:jgc:chanrobles.com.ph

"Under the present constitution the President, if he so desires, can continue in office beyond 1973.

Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated under Martial Law?

18,052,016 � YES

1,856,744 � NO"

(Phil. Daily Express, August 4, 1973)



First of all, petitioners challenge the factual premises and constitutional sufficiency of Proclamation 1081. Invoking the Constitution of 1935 under which it was issued, they vigorously maintain that "while there may be rebellion in some remote places, as in Isabela, there is no basis for the nationwide imposition of martial law, since: (a) no large scale rebellion or insurrection exists in the Philippines; (b) public safety does not require it, inasmuch as no department of the civil government � is shown to have been unable to open or function because of or due to, the activities of the lawless elements described in the Proclamation; (c) the Executive has given the nation to understand � and there exists no evidence to the contrary � that the armed forces can handle the situation without ‘utilizing the extraordinary powers of the President etc.’; and (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." (pp. 6970, Petitioners’ Memorandum). In his supplemental petition, petitioner Diokno individually posits that especially these days, with the improved conditions of peace and order, there is no more constitutional justification for the continuance of martial law. In other words, petitioners question not only the constitutional sufficiency both in fact and in law of the proclamation but also the legality of their detention and constraints, independently of any finding of validity of the proclamation, while in his supplemental petition petitioner Diokno individually submits that the Court should declare that it has already become illegal to continue the present martial law regime because the emergency for which it was proclaimed, if it ever existed, has already ceased, as attested by various public and official declaration of no less than the President himself. On the other hand, respondents would want the Court to lay its hands off the instant petitions, claiming that under General Orders Nos. 3 and 3-A, aforequoted, the President has ordered that the Judiciary shall not try and decide cases "involving the validity, legality or constitutionality" of Proclamation 1081 and any order, decree or acts issued or done pursuant to said Proclamation. They contend most vehemently that this Court has no jurisdiction to inquire into the factual bases of the proclamation, any question as to the propriety or constitutional sufficiency of its issuance being, according to them, political and non-justiciable. They point out, in this connection, that in the above-mentioned referendum of January 10-15, 1973 and more so in that of July 27-28, 1973, the sovereign people impressed their seal of approval on the continuation of martial law for as long as the President may deem it wise to maintain the same. And on the assumption the Court can make an inquiry into the factual bases of the Proclamation, they claim there was more than sufficient justification for its issuance, in the light of the criterion of arbitrariness sanctioned by Us in Lansang v. Garcia, 42 SCRA 448. Respondents further maintain that it is only by another official proclamation by the President, not by a judicial declaration, that martial law may be lifted. Additionally, in their answer of July 26, 1973 to petitioner Diokno’s supplemental petition, respondents contend that the express provisions of the above-quoted transitory provision of the New Constitution, have made indubitable that Proclamation 1081 as well as all the impugned General Orders are constitutional and valid.

Thus, the fundamental questions presented for the Court’s resolution are:chanrob1es virtual 1aw library

1. Does the Supreme Court have jurisdiction to resolve the merits of the instant petitions? Put differently, are not the issues herein related to the propriety or constitutional sufficiency of the issuance of the Proclamation purely political, which are not for the judiciary, but for the people and the political departments of the government to determine? And viewed from existing jurisprudence in the Philippines, is not the doctrine laid down by this Court in Lansang v. Garcia, supra, applicable to these cases?

2. Even assuming Lansang to be applicable, and on the basis of the criterion of arbitrariness sanctioned therein, can it be said that the President acted arbitrarily, capriciously or whimsically in issuing Proclamation 1081?

3. Even assuming also that said proclamation was constitutionally issued, may not the Supreme Court declare upon the facts of record and those judicially known to it now that the necessity for martial law originally found by the President to exist has already ceased so as to make further continuance of the present martial law regime unconstitutional?

4. Even assuming again that the placing of the country under martial law is constitutional until the President himself declares otherwise, is there any legal justification for the arrest and detention as well as the other constraints upon the individual liberties of the petitioners, and, in the affirmative, does such justification continue up to the present, almost two years from the time of their apprehension, there being no criminal charges of any kind against them nor any warrants of arrest for their apprehension duly issued pursuant to the procedure prescribed by law?

5. Finally, can there still be any doubt regarding the constitutionality of the issuance of Proclamation 1081 and all the other proclamations and orders, decrees, instructions and acts of the President issued or done by him pursuant to said Proclamation, considering that by the terms of Section 3 (2) of Article XVII of the Constitution of the Philippines of 1973, "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" until revoked or superseded by the incumbent President himself or by the regular National Assembly established under the same Constitution?





By its very nature, the issue of jurisdiction vigorously urged by the Solicitor General calls for prior resolution. Indeed, whenever the authority of the Court to act is seriously challenged, it should not proceed any further until that authority is clearly established. And it goes without saying that such authority may be found only in. the existing laws and/or the Constitution.

For a moment, however, there was a feeling among some members of the Court that the import of the transitory provisions of the New Constitution referred to in the fifth question above has made the issue of jurisdiction posed by the respondents of secondary importance, if not entirely academic. Until, upon further reflection, a consensus emerged that for Us to declare that the transitory provision invoked has rendered moot and academic any controversy as to the legality of the impugned acts of the President is to assume that the issue is justiciable, thereby bypassing the very issue of jurisdiction We are asked to resolve. We feel that while perhaps, such reliance on the transitory provision referred to may legally suffice to dispose of the cases at bar, it cannot answer persistent queries regarding the powers of the Supreme Court in a martial law situation. It would still leave unsettled a host of controversies related to the continued exercise of extraordinary powers by the President. Withal, such assumption of justiciability would leave the Court open to successive petitions asking that martial law be lifted, without Our having resolved first the correctness of such assumption. Indeed, nothing short of a categorical and definite ruling of this Court is imperative regarding the pretended non-justiciability of the issues herein, if the people are to know, as they must, whether the present governmental order has legitimate constitutional foundations or it is supported by nothing more than naked force and self-created stilts to keep it above the murky waters of unconstitutionality. Thus, it is but proper that We tackle first the questions about the authority of the Court to entertain and decide these cases before discussing the materiality and effects of the transitory provision relied upon by respondents.

As a matter of fact, it is not alone the matter of jurisdiction that We should decide. Beyond the purely legal issues placed before Us by the parties, more fundamental problems are involved in these proceedings. There are all-important matters which a historical decision like this cannot ignore on the pretext that Our duty in the premises is exclusively judicial. Whether all the members of the Court like it or not, the Court has to play its indispensable and decisive role in resolving the problems confronting our people in the critical circumstances in which they find themselves. After all, we cannot dissociate ourselves from them, for we are Filipinos who must share the common fate to which the denouement of the current situation will consign our nation. The priority issue before Us is whether We will subject the assailed acts of the President to judicial scrutiny as to its factual bases or We will defer to his findings predicated on evidence which are in the very nature of things officially available only to him, but in either case, our people must know that Our decision has democratic foundations and conforms with the great principles for which our nation exists.

The New Constitution itself is in a large sense a product of the political convulsion now shaking precariously the unity of the nation. Upon the other hand, that those presently in authority had a hand in one way or another in its formulation, approval and ratification can hardly be denied. To justify, therefore, the restraint upon the liberties of petitioners through an exclusive reliance on the mandates of the new charter, albeit logically and technically tenable, may not suffice to keep our people united in the faith that there is genuine democracy in the existing order and that the rule of law still prevails in our land. Somehow the disturbing thought may keep lingering with some, if not with many, of our countrymen that by predicating Our decision on the basis alone of what the New Constitution ordains, We are in effect allowing those presently in authority the dubious privilege of legalizing their acts and exculpating themselves from their supposed constitutional transgressions through a device which night yet have been of their own furtive making.

Besides, We should not be as naive as to ignore that in troublous times like the present, simplistic solutions, however solidly based, of constitutional controversies likely to have grave political consequences would not sound cogent enough unless they ring in complete harmony with the tune set by the founders of our nation when they solemnly consecrated it to the ideology they considered best conducive to the contentment and prosperity of all our people. And the commitment of the Philippines to the ideals of democracy and freedom is ever evident and indubitable. It is writ in the martyrdom of our revolutionary forbears when they violently overthrow the yoke of Spanish despotism. It is an indelible part of the history of our passionate and zealous observance of democratic principles and practices during the more than four decades that America was with us. It is reaffirmed in bright crimson in the blood and the lives of the countless Filipinos who fought and died in order that our country may not be subjugated under the militarism and totalitarianism of the Japanese then, who were even enticing us with the idea of a Greater East Asia Co-Prosperity Sphere. And today, that our people are showing considerable disposition to suffer the imposition of martial law can only be explained by their belief that it is the last recourse to save themselves from the inroads of ideologies antithetic to those they cherish and uphold.

Withal, the eyes of all the peoples of the world on both sides of the bamboo and iron curtains are focused on what has been happening in our country since September 21, 1972. Martial law in any country has such awesome implications that any nation under it is naturally an interesting study subject for the rest of mankind. Those who consider themselves to be our ideological allies must be keeping apprehensive watch on how steadfastly we shall remain living and cherishing our common fundamental political tenets and ways of life, whereas those of the opposite ideology must be eagerly anticipating how soon we will join them in the conviction that, after all, real progress and development cannot be achieved without giving up individual freedom and liberty and unless there is concentration of power in the exercise of government authority. It is true the Philippines continues to enjoy recognition of all the states with whom it had diplomatic relations before martial law was proclaimed, but it is not difficult to imagine that as soon as it has become definite or anyway apparent to those concerned that the Philippines has ceased to adhere to the immutable concepts of freedom and democracy enshrined in its own fundamental law, corresponding reactions would manifest themselves in the treatment that will be given us by these states.

In our chosen form of government, the Supreme Court is the department that most authoritatively speaks the language of the Constitution. Hence, how the present martial law and the constraints upon the liberties of petitioners can be justified under our Constitution which provides for a republican democratic government will be read by the whole world in the considerations of this decision. From them they will know whither we are going as a nation. More importantly, by the same token, history and the future generations of Filipinos will render their own judgment on all of us who by the will of Divine Providence have to play our respective roles in this epochal chapter of our national life. By this decision, everyone concerned will determine how truly or otherwise, the Philippines of today is keeping faith with the fundamental precepts of democracy and liberty to which the nation has been irrevocably committed by our heroes and martyrs since its birth.

And we should not gloss over the fact that petitioners have come to this Court for the protection of their rights under the provisions of the Old Charter that have remained unaltered by the New Constitution. It would not be fair to them, if the provisions invoked by them still mean what they had always meant before, to determine the fate of their petitions on the basis merely of a transitory provision whose consistency with democratic principles they vigorously challenge.

In this delicate period of our national life, when faith in each other and unity among all of the component elements of our people arc indispensable, We cannot treat the attitude and feelings of the petitioners, especially Senator Diokno * who is still under detention without formal charges, with apathy and indifferent unconcern. Their pleadings evince quite distinctly an apprehensive, nay a fast dwindling faith in the capacity of this Court to render them justice. Bluntly put, their pose is that the justice they seek may be found only in the correct construction of the 1935 Constitution, and they make no secret of their fears that because the incumbent members of the Court have taken an oath to defend and protect the New Constitution, their hopes of due protection under the Bill of Rights of the Old Charter may fall on deaf ears. Petitioner Diokno, in particular, with the undisguised concurrence of his chief counsel, former Senator Tañada, despairingly bewails that although they are "convinced beyond any nagging doubt that (they are) on the side of right and reason and law and justice, (they are) equally convinced that (they) cannot reasonably expect either right or reason, law or justice, to prevail in (these) case(s)."cralaw virtua1aw library

To be sure, We do not feel bound to soothe the subjective despondency nor to cool down the infuriated feelings of litigants and lawyers by means other than the sheer objectiveness and demonstrated technical accuracy of our decisions. Under the peculiar milieu of these cases, however, it is perhaps best that We do not spare any effort to make everyone see that in discharging the grave responsibility incumbent upon Us in the best light that God has given Us to see it, We have explored every angle the parties have indicated and that We have exhausted all jurisprudential resources within our command before arriving at our conclusions and rendering our verdict. in a way, it could indeed be part of the nobility that should never be lost in any court of justice that no party before it is left sulking with the thought that he lost because not all his important arguments in which he sincerely believes have been duly considered or weighed in the balance.

But, of course, petitioners’ emotional misgivings are manifestly baseless. It is too evident for anyone to ignore that the provisions of the Old Constitution petitioners are invoking remain unaltered in the New Constitution and that when it comes to the basic precepts underlying the main portions of both fundamental laws, there is no disparity, much less any antagonism between them, for in truth, they are the same identical tenets to which our country, our government and our people have always been ineradicably committed. Insofar, therefore, as said provisions and their underlying principles are concerned, the new oath taken by the members of the Court must be understood, not in the disturbing sense petitioners take them, but rather as a continuing guarantee of the Justices’ unswerving fealty and steadfast adherence to the self-same tenets and ideals of democracy and liberty embodied in the oaths of loyalty they took with reference to the 1935 Constitution.

Contrary to what is obviously the erroneous impression of petitioner Diokno, the fundamental reason that impelled the members of the Court to take the new oaths that are causing him unwarranted agony was precisely to regain their independence from the Executive, inasmuch as the transitory provisions of the 1978 Constitution had, as a matter of course, subjected the judiciary to the usual rules attendant in the reorganization of governments under a new charter. Under Sections 9 and 10 of Article XVII, "incumbent members of the Judiciary may continue in office until they reach the age of seventy years, unless sooner replaced" by the President, but "all officials whose appointments are by this Constitution vested in the (President) shall vacate their offices upon the appointment and qualification of their successors." In other words, under said provisions, the Justices ceased to be permanent. And that is precisely why our new oaths containing the phrase "na pinagpapatuloy sa panunungkulan", which petitioner Diokno uncharitably ridicules ignoring its real import, was prepared by the Secretary of Justice in consultation with the Court, and not by the President or any other subordinate in the Executive office, purposely to make sure that the oath taking ceremony which was to be presided by the President himself would connote and signify that thereby, in fact and in contemplation of law, the President has already exercised the power conferred upon him by the aforequoted transitory constitutional provisions to replace anyone of us with a successor at anytime.

There was no Presidential edict at all for the Justices to take such an oath. The President informed the Court that he was determined to restore the permanence of the respective tenures of its members, but there was a feeling that to extend new appointments to them as successors to themselves would sound somehow absurd. And so, in a conference among the President, the Secretary of Justice and all the Justices, a mutually acceptable construction of the pertinent transitory provision was adopted to the effect that an official public announcement was to be made that the incumbent Justices would be continued in their respective offices without any new appointment, but they would take a fittingly worded oath the text of which was to be prepared in consultation between the Secretary of Justice and the Court. Thus, by that oath taking, all the members of the Court, other than the Chief Justice and the three new Associate Justices, who because of their new appointments are not affected by the transitory provisions, are now equally permanent with them in their constitutional tenures, as officially and publicly announced by the President himself on that occasion. Otherwise stated, the reorganization of the Supreme Court contemplated in the transitory provisions referred to, which, incidentally was also a feature of the transitory provisions of the 1935 Constitution, albeit, limited then expressly to one year, (Section 4, Article XVI) has already been accomplished, and all the Justices are now unreachably beyond the presidential prerogative either explicit or implicit in the terms of the new transitory provisions.

It is, therefore, in these faith and spirit and with this understanding, supported with prayers for guidance of Divine Providence, that We have deliberated and voted on the issues in these cases � certainly, without any claim of monopoly of wisdom and patriotism and of loyalty to all that is sacred to the Philippines and the Filipino people.



As already stated, the Government’s insistent posture that the Supreme Court should abstain from inquiring into the constitutional sufficiency of Proclamation 1081 is predicated on two fundamental grounds, namely, (1) that under General Order No. 3, as amended by General Order No. 3-A, "the Judiciary (which includes the Supreme Court) shall continue to function in accordance with its present organization and personnel, and shall try and decide in accordance with existing laws all criminal and civil cases, except the following: 1. Those involving the validity, legality or constitutionality of Proclamation 1081 dated September 21, 1972 or of any decree, order or acts issued, promulgated or performed by (the President) or by (his) duly designated representative pursuant thereto," and (2) the questions involved in these cases are political and non-justiciable and, therefore, outside the domain of judicial inquiry.



Anent the first ground thus invoked by the respondents, it is not without importance to note that the Solicitor General relies barely on the provisions of the general orders cited without elaborating as to how the Supreme Court can be bound thereby. Considering that the totality of the judicial power is vested in the Court by no less than the Constitution, both the Old and the New, the absence of any independent showing of how the President may by his own fiat constitutionally declare or order otherwise is certainly significant. It may be that the Solicitor General considered it more prudent to tone down any possible frontal clash with the Court, but as We see it, the simplistic tenor of the Solicitor General’s defense must be due to the fact too well known to require any evidential proof that by the President’s own acts, publicized here and abroad, he had made it plainly understood that General Orders Nos. 3 and 3-A are no longer operative insofar as they were intended to divest the Judiciary of jurisdiction to pass on the validity, legality or constitutionality of his acts under the aegis of martial law. In fact, according to the President, it was upon his instructions given as early as September 24, 1972, soon after the filing of the present petitions, that the Solicitor General submitted his return and answer to the writs We have issued herein. It is a matter of public knowledge that the president’s repeated avowal of the Government’s submission to the Court is being proudly acclaimed as the distinctive characteristic of the so-called "martial law � Philippine style", since such attitude endowes it with the democratic flavor so dismally absent in the martial law prevailing in other countries of the world.

Accordingly, even if it were to be assumed at this juncture that by virtue of the transitory provision of the New Constitution making all orders of the incumbent President part of the law of the land, General Orders Nos. 3 and 3-A are valid, the position of the respondents on the present issue of jurisdiction based on said orders has been rendered untenable by the very acts of the President, which in the words of the same transitory provision have "modified, revoked or superseded" them. And in this connection, it is important to note that the transitory provision just referred to textually says that the acts of the incumbent President shall "remain valid, legal, binding and effective unless modified, revoked or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly", thereby implying that the modificatory or revocatory acts of the president need not be as express and explicit as in the case of the National Assembly. In other words, when it comes to acts of the President, mere demonstrated inconsistency of his posterior acts with earlier ones would be enough for implied modification or revocation to be effective, even if no statement is made by him to such effect.

Rationalizing his attitude in regard to the Supreme Court during martial law, President Marcos has the following to say in his book entitled "Notes on the New Society of the Philippines":jgc:chanrobles.com.ph

"Our martial law is unique in that it is based on the supremacy of the civilian authority over the military and on complete submission to the decision of the Supreme Court, and most important of all, the people. . . ." (p. 103)



"Thus, upon the approval by the Constitutional Convention of a new Constitution, I organized the barangays or village councils or citizens assemblies in the barrios (a barrio is the smallest political unit in the Philippines). I directed the new Constitution to be submitted to the barangays or citizens assemblies in a formal plebiscite from January 10 to 15, 1973. The barangays voted almost unanimously to ratify the Constitution, continue with martial law and with the reforms of the New Society.

This action was questioned in a petition filed before our Supreme Court in the cases entitled Javellana v. Executive Secretary et al, G.P. No. L-36143, 36164, 36165, 36236 and 36283. The issue raised was whether I had the power to call a plebiscite; whether I could proclaim the ratification of the new Constitution. In raising this issue, the petitioners (who, incidentally, were Liberals or political opposition leaders) raised the fundamental issue of the power of the President under a proclamation of martial law to issue decrees.

Inasmuch as the issues in turn raised the question of the legitimacy of the entire Government and also to meet the insistent suggestion that, in the event of an adverse decision, I proclaim a revolutionary government, I decided to submit to the jurisdiction of the Supreme Court as I had done in the Lansang v. Garcia case (already quoted) in 1971 when almost the same parties in interest questioned my powers as President to suspend the privilege of the writ of habeas corpus. (Refer to pp. 13-17.)

This would, at the same time, calm the fears of every cynic who had any misgivings about my intentions and claimed that I was ready to set up a dictatorship. For who is the dictator who would submit himself to a higher body like the Supreme Court on the question of the constitutionality or validity of his actions?" (pp. 103-104.)



"It will be noted that I had submitted myself to the jurisdiction of the Supreme Court in all cases questioning my authority in 1971 in the case of Lansang v. Garcia on the question of the suspension of the privilege of the writ of habeas corpus, and in the case just cited on the proclamation of martial law as well as the other related cases." (pp. 105-106.)

Nothing could be more indicative, than these words of the President himself, of his resolute intent to render General Orders Nos. 3 and 3-A inoperative insofar as the Supreme Court’s jurisdiction over cases involving the validity, legality or constitutionality of his acts are concerned. Actually, the tenor and purpose of the said general orders are standard in martial law proclamations, and the President’s attitude is more of an exception to the general practice. Be that as it may, with this development, petitioners have no reason to charge that there is a "disrobing" of the Supreme Court. But even as the President unequivocally reaffirms, over and above martial law, his respect for the Supreme Court’s constitutionally assigned role as the guardian of the Constitution and as the final authority as to its correct interpretation and construction, it is entirely up to the Court to determine and define its own constitutional prerogatives vis-a-vis the proclamation and the existing martial law situation, given the reasons for the declaration and its avowed objectives



The second ground vigorously urged by the Solicitor General is more fundamental, since, prescinding from the force of the general orders just discussed, it strikes at the very core of the judicial power vested in the Court by the people thru the Constitution. It is claimed that insofar as the instant petitions impugn the issuance of Proclamation 1081 as having been issued by the President in excess of his constitutional authority, they raise a political question not subject to inquiry by the courts. And with reference to the plea of the petitioners that their arrest, detention and other restraints, without any charges or warrants duly issued by the proper judge, constitute clear violations of their rights guaranteed by the fundamental law, the stand of the respondents is that the privilege of the writ of habeas corpushas been suspended automatically in consequence of the imposition of martial law, the propriety of which is left by the Constitution to the exclusive discretion of the President, such that for the proper exercise of that discretion he is accountable only to the sovereign people, either directly at the polls or thru their representatives by impeachment.

Never before has the Supreme Court of the Philippines been confronted with a problem of such transcendental consequences and implications as the present one entails. There is here an exertion of extreme state power involving the proclaimed assumption of the totality of government authority by the Executive, predicated on his own declaration that a state of rebellion assuming "the magnitude of an actual state of war against our people and the Republic of the Philippines" exists (22nd whereas of Proclamation 1081) and that "the public order and safety and the security of this nation demand that immediate, swift, decisive and effective action be taken to protect and insure the peace, order and security of the country and its population and to maintain the authority of the government." (19th whereas, id.) Upon the other hand, petitioners deny the factual bases of the Proclamation and insist that it is incumbent upon the Court, in the name of democracy, liberty and the constitution, to inquire into the veracity thereof and to declare, upon finding them to be untrue, that the proclamation is unconstitutional and void. Respondents counter, however, that the very nature of the proclamation demands that the court should refrain from making any such inquiry, considering that, as already stated, the discretion as to whether or not martial law should be imposed is lodged by the Constitution in the President exclusively.

As We enter the extremely delicate task of resolving the grave issues thus thrust upon Us, We are immediately encountered by absolute verities to guide Us all the way. The first and most important of them is that the Constitution 9 is the supreme law of the land. This means among others things that all the powers of the government and of all its officials from the President down to the lowest emanate from it. None of them may exercise any power unless it can be traced thereto either textually or by natural and logical implication.

The second is that it is settled that the Judiciary provisions of the Constitution point to the Supreme Court as the ultimate arbiter of all conflicts as to what the Constitution or any part thereof means. While the other Departments may adopt their own construction thereof, when such construction is challenged by the proper party in an appropriate case wherein a decision would be impossible without determining the correct construction, the Supreme Court’s word on the matter controls.

The third is that in the same way that the Supreme Court is the designated guardian of the Constitution, the President is the specifically assigned protector of the safety, tranquility and territorial integrity of the nation. This responsibility of the President is his alone and may not be shared by any other Department.

The fourth is that, to the end just stated, the Constitution expressly provides that "in case of invasion, insurrection or rebellion or imminent danger thereof, when the public safety requires it, he (the Executive) "may (as a last resort) . . . place the Philippines or any part thereof under martial law." 10

The fifth is that in the same manner that the Executive power conferred upon the Executive by the Constitution is complete, total and unlimited, so also, the judicial power vested in the Supreme Court and the inferior courts, is the very whole of that power, without any limitation or qualification.

The sixth is that although the Bill of Rights in the Constitution strictly ordains that "no person shall be deprived of life, liberty or property without due process of law", 11 even this basic guarantee of protection readily reveals that the Constitution’s concern for individual rights and liberties is not entirely above that for the national interests, since the deprivation it enjoins is only that which is without due process of law, and laws are always enacted in the national interest or to promote and safeguard the general welfare. Of course, it is understood that the law thus passed, whether procedural or substantive, must afford the party concerned the basic elements of justice, such as the right to be heard, confrontation, and counsel, inter alia.

And the seventh is that whereas the Bill of Rights of the 1935 Constitution explicitly enjoins that "(T)he privilege of the writ of habeas corpusshall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist",12 there is no similar injunction whether expressed or implied against the declaration of martial law.

From these incontrovertible postulates, it results, first of all, that the main question before Us is not in reality one of jurisdiction, for there can be no conceivable controversy, especially one involving a conflict as to the correct construction of the Constitution, that is not contemplated to be within the judicial authority of the courts to hear and decide. The judicial power of the courts being unlimited and unqualified, it extends over all situations that call for the ascertainment and protection of the rights of any party allegedly violated, even when the alleged violator is the highest official of the land or the government itself. It is, therefore, evident that the Court’s jurisdiction to take cognizance of and to decide the instant petitions on their merits is beyond challenge.

In this connection, however, it must be borne in mind that in the form of government envisaged by the framers of the Constitution and adopted by our people, the Court’s indisputable and plenary authority to decide does not necessarily impose upon it the duty to interpose its fiat as the only means of settling the conflicting claims of the parties before it. It is ingrained in the distribution of powers in the fundamental law that hand in hand with the vesting of the judicial power upon the Court, the Constitution has coevally conferred upon it the discretion to determine, in consideration of the constitutional prerogatives granted to the other Departments, when to refrain from imposing judicial solutions and instead defer to the judgment of the latter. It is in the very nature of republican governments that certain matters are left in the residual power of the people themselves to resolve, either directly at the polls or thru their elected representatives in the political Departments of the government. And these reserved matters are easily distinguishable by their very nature, when one studiously considers the basic functions and responsibilities entrusted by the charter to each of the great Departments of the government. To cite an obvious example, the protection, defense and preservation of the state against internal or external aggression threatening its very existence is far from being within the ambit of judicial responsibility. The distinct role then of the Supreme Court of being the final arbiter in the determination of constitutional controversies does not have to be asserted in such contemplated situations, thereby to give way to the ultimate prerogative of the people articulated thru suffrage or thru the acts of their political representatives they have elected for the purpose.

Indeed, these fundamental considerations are the ones that lie at the base of what is known in American constitutional law as the political question doctrine, which in that jurisdiction is unquestionably deemed to be part and parcel of the rule of law, exactly like its apparently more attractive or popular opposite, judicial activism, which is the fullest exertion of judicial power upon the theory that unless the courts intervene injustice might prevail. It has been invoked and applied by this Court in varied forms and modes of projection in several momentous instances in the past,13 and it is the main support of the stand of the Solicitor General on the issue of jurisdiction in the cases at bar. It is also referred to as the doctrine of judicial self-restraint or abstention. But as the nomenclatures themselves imply, activism and self-restraint are both subjective attitudes, not inherent imperatives. The choice of alternatives in any particular eventuality is naturally dictated by what in the Court’s considered opinion is what the Constitution envisions should be done in order to accomplish the objectives of government and of nationhood. And perhaps it may be added here to avoid confusion of concepts, that We are not losing sight of the traditional approach based on the doctrine of separation of powers. In truth, We perceive that even under such mode of rationalization, the existence of power is secondary, respect for the acts of a co-ordinate, co-equal and co-independent Department being the general rule, particularly when the issue is not encroachment of delimited areas of functions but alleged abuse of a Department’s own basic prerogatives.

In the final analysis, therefore, We need not indulge in any further discussion as to whether or not the Court has jurisdiction over the merits of the instant petitions. It is definite that it has. Rather, the real question before Us is whether or not the Court should act on them. Stated differently, do We have here that appropriate occasion for activism on the part of the Court, or, do the imperatives of the situation demand, in the light of the reservations in the fundamental law just discussed, that We defer to the political decision of the Executive? After mature deliberation, and taking all relevant circumstances into account, We are convinced that the Court should abstain in regard to what is in all probability the most important issue raised in them, namely, whether or not the Court should inquire into the constitutional sufficiency of Proclamation 1081 by receiving evidence tending to belie the factual premises thereof. It is Our considered view that under the Constitution, the discretion to determine ultimately whether or not the Philippines or any part thereof should be placed under martial law and for how long is lodged exclusively in the Executive, and for this reason, it is best that We defer to his judgment as regards the existence of the grounds therefor, since, after all, it is not expected that the Supreme Court should share with him the delicate constitutional responsibility of defending the safety, security, tranquility and territorial integrity of the nation in the face of a rebellion or invasion. This is not abdication of judicial power, much less a violation of Our oaths "to support and defend the Constitution"; rather, this is deference to an act of the Executive which, in Our well-considered view, the Constitution contemplates the Court should refrain from reviewing or interfering with. To Our mind, the following considerations, inter alia, impel no other conclusion:chanrob1es virtual 1aw library



It has been said that martial law has no generally accepted definition, much less a precise meaning. But as We see it, no matter how variously it has been described, a common element is plainly recognizable in whatever has been said about it � it does not involve executive power alone. To be more exact, martial law is state power which involves the totality of government authority, irrespective of the Department or official by whom it is administered. This is because, as admitted by all, martial law is every government’s substitute for the established governmental machinery rendered inoperative by the emergency that brings it forth, in order to maintain whatever legal and social order is possible during the period of emergency, while the government is engaged in battle with the enemy. Otherwise, with the breakdown of the regular government authority or the inability of the usual offices and officials to perform their functions without endangering the safety of all concerned, anarchy and chaos are bound to prevail and protection of life and property would be nil. What is worse, the confusion and disorder would detract the defense efforts. It is indispensable therefore that some kind of government must go on, and martial law appears to be the logical alternative. Hence, from the point of view of safeguarding the people against possible governmental abuses, it is not the declaration of martial law and who actually administers it that is of supreme importance. Someone has of necessity to be in command as surrogate of the whole embattled government. It is what is actually done by the administrator affecting individual rights and liberties that must pass constitutional standards, even as these are correspondingly adjusted to suit the necessities of the situation. But this is not to say that redress of constitutional offenses would immediately and necessarily be available, for even the procedure for securing redress, its form and time must depend on what such necessities will permit. Viewed in depth, this is all that can be visualized as contemplated in the supposedly fundamental principle invoked by petitioners to the effect that necessity and necessity alone is the justification and the measure of the powers that may be exercised under martial law.



In countries where there is no constitutional provision sanctioning the imposition of martial law, the power to declare or proclaim the same is nevertheless conceded to be the most vital inherent prerogative of the state because it is axiomatic that the right of the state to defend itself against disintegration or subjugation by another cannot be less than an individual’s natural right of self-defense. The resulting repression or restraint of individual rights is therefore justified as the natural contribution that the individual owes to the state, so that the government under which he lives may survive. After all, such subordination to the general interest is supposed to be temporary, coincident only with the requirements of the emergency.

At the same time, under the general practice in those countries, it is considered as nothing but logical that the declaration or proclamation should be made by the Executive. So it is that none of the cases cited by petitioners, including those of Hearon v. Calus, 183, S.E. 24 and Allen v. Oklahoma City, 52 Pac. Rep. 2nd Series, pp. 1054-1059, may be deemed as a binding precedent sustaining definitely that it is in the power of the courts to declare an Executive’s proclamation or declaration of martial law in case of rebellion or insurrection to be unconstitutional and unauthorized. Our own research has not yielded any jurisprudence upholding the contention of petitioners on this point. What is clear and incontrovertible from all the cases cited by both parties is that the power of the Executive to proclaim martial law in case of rebellion has never been challenged, not to say outlawed. It has always been assumed, even if the extent of the authority that may be exercised under it has been subjected to the applicable provision of the constitution, with some courts holding that the enforceability of the fundamental law within the area of the martial law regime is unqualified, and the others maintaining that such enforceability must be commensurate with the demands of the emergency situation. In other words, there is actually no authoritative jurisprudential rule for Us to follow in respect to the specific question of whether or not the Executive’s determination of the necessity to impose martial law during a rebellion is reviewable by the judiciary. If We have to go via the precedential route, the most that We can find is that the legality of an Executive’s exercise of the power to proclaim martial law has never been passed upon by any court in a categorical manner so as to leave no room for doubt or speculation.



In the Philippines, We do not have to resort to assumptions regarding any inherent power of the government to proclaim a state of martial law. What is an implied inherent prerogative of the government in other countries is explicitly conferred by our people to the government in unequivocal terms in the fundamental law. More importantly in this connection, it is to the Executive that the authority is specifically granted "in cases of invasion, insurrection or rebellion, when public safety requires it", to "place the Philippines or any part thereof under Martial Law." To be sure, petitioners admit that much. But they insist on trying to show that the factual premises of the Proclamation are not entirely true and are, in any event, constitutionally insufficient. They urge the Court to pass on the merits of this particular proposition of fact and of law in their petitions and to order thereafter the nullification and setting aside thereof.

We do not believe the Court should interfere.

The pertinent constitutional provision is explicit and unequivocal. It reads as follows:jgc:chanrobles.com.ph

"(2) The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law." (Section 10(2), Article VII, 1935 Constitution.)

"SEC. 12. The prime Minister shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law." (Section 12, Article IX, 1973 Constitution.)

Except for the reference to the Prime Minister in the New Constitution instead of to the President as in the Old, the wording of the provision has remained unaltered ipssissimis verbis. Accordingly, the two Constitutions cannot vary in meaning, they should be construed and applied in the light of exactly the same considerations. In this sense at least, petitioners’ invocation of the 1935 Constitution has not been rendered academic by the enforcement of the new charter. For the purposes of these cases, We will in the main consider their arguments as if there has been no Javellana decision.

Now, since in those countries where martial law is an extra-constitutional concept, the Executive’s proclamation thereof, as observed above, has never been considered as offensive to the fundamental law, whether written or unwritten, and, in fact, not even challenged, what reason can there be that here in the Philippines, wherein the Constitution directly and definitely commits the power to the Executive, another rule should obtain? Are we Filipinos so incapable of electing an Executive we can trust not to unceremoniously cast aside his constitutionally worded oath solemnly and emphatically imposing upon him the duty "to defend and protect the Constitution"? Or is the Court to be persuaded by possible partisan prejudice or the subjective rationalization informing personal ambitions?

Reserving for further discussion the effect of Lansang upon the compelling force of the opinions in Barcelon v. Baker, 5 Phil. 87 and Montenegro v. Castañeda, 91 Phil. 862, relative to the issue at hand, We cannot lightly disregard the ponderous reasons discussed in said opinions supporting the view that the Executive’s choice of means in dealing with a rebellion should be conclusive. In Barcelon, this Court said:jgc:chanrobles.com.ph

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

A paragraph of section 5 of the act of Congress of July 1, 1902, provides:chanrob1es virtual 1aw library

‘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-General with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist.’

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

This provision of the act of Congress makes two conditions. necessary in order that the President or the Governor-General with the approval of the Philippine Commission may suspend the privilege of the writ of habeas corpus. They are as follows:chanrob1es virtual 1aw library

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

(2) When public safety may require it.

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

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

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

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

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

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

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

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

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

It is the duty of the legislative branch of the Government to make such laws and regulations as will effectually conserve peace and good order and protect the lives and property of the citizens of the State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict enforcement of laws under the conditions mentioned necessarily tends to jeopardize public interests and the safety of the whole people. If the judicial department of the Government, or any officer in the Government, has a right to contest the orders of the President or of the Governor-General under the conditions above supposed, before complying with such orders, then the hands of the President or the Governor-General may he tied until the very object of the rebels or insurrectos or invaders has been accomplished. But it is urged that the President, or the Governor-General with the approval of the Philippine Commission, might he mistaken as to the actual conditions; that the legislative department � the Philippine Commission � might, by resolution, declare after investigation, that a state of rebellion, insurrection, or invasion exists, and that the public safety requires the suspension of the privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions actually existed; that the President, or Governor-General acting upon the authority of the Philippine Commission, might by proclamation suspend the privilege of the writ of habeas corpuswithout there actually existing the conditions mentioned in the act of Congress. In other words, the applicants allege in their argument in support of their application for the writ of habeas corpus, that the legislative and executive branches of the Government might reach a wrong conclusion from their investigations of the actual conditions, or might, through a desire to oppress and harass the people, declare that a state of rebellion, insurrection, or invasion existed and that public safety required the suspension of the privilege of the writ of habeas corpuswhen actually and in fact no such conditions did exist. We can not assume that the legislative and executive branches will act or take any action based upon such motives.

Moreover it can not be assumed that the legislative and executive branches of the Government, with all the machinery which those branches have at their command for examining into the conditions in any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It is the duty of the executive branch of the Government to constantly inform the legislative branch of the Government of the condition of the Union as to the prevalence of peace and disorder. The executive branch of the Government, through its numerous branches of the civil and military, ramifies every portion of the Archipelago, and is enabled thereby to obtain information from every quarter and corner of the State. Can the judicial department of the government, with its very limited machinery for the purpose of investigating general conditions, be any more sure of ascertaining the true conditions throughout the Archipelago, or in any particular district, than the other branches of the government? We think not." (At p. 91-96.)



"The same general question presented here was presented to the Supreme Court of the United States in the case of Martin v. Mott, in January, 1821. An act of Congress of 1795 provided �

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

In this case (Martin v. Mott) the question was presented to the court whether or not the President’s action in calling out the militia was conclusive against the courts. The Supreme Court of the United States, in answering this question, said:chanrob1es virtual 1aw library

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

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

Justice Joseph Story, for many years a member of the Supreme Court of the United States, in discussing the question who may suspend the privilege of the writ of habeas corpus, under the Constitution of the United States, said:chanrob1es virtual 1aw library

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

Justice James Ket, for many years a justice of the supreme court of the State of New York, in discussing the same question, cites the case of Martin v. Mott, and says:chanrob1es virtual 1aw library

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

John Randolph Tucker, for many years a professor of constitutional and international law in Washington and Lee University, in discussing this question, said:chanrob1es virtual 1aw library

‘By an act passed in 1795 Congress gave to the President power to call out the militia for certain purposes, and by subsequent acts, in 1807, power was given to him to be exercised whenever he should deem it necessary, for the purposes stated in the Constitution; and the Supreme Court (United States) has decided that this executive discretion in making the call (for State militia) could not be judicially questioned.’ (Tucker on the Constitution, Vol. II, p. 681.)

John Norton Pomeroy, an eminent law writer upon constitutional questions, said:chanrob1es virtual 1aw library

‘In Martin v. Mott it was decided that under the authority given to the President by the statute of 1795, calling forth the militia under certain circumstances, the power is exclusively vested in him to determine whether those circumstances exist; and when he has determined by issuing his call, no court can question his decision.’ (Pomeroy’s Constitutional Law, sec. 476.)

Henry Campbell Black, a well-known writer on the Constitution, says:chanrob1es virtual 1aw library

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

Judge Thomas M. Cooley, in discussing the right of the judicial department of the Government to interfere with the discretionary action of the other departments of the Government, in his work on constitutional law, said:chanrob1es virtual 1aw library

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

But it may be argued by those who contend for the contrary doctrine, to wit, that the acts of the Governor-General, with the approval of the Philippine Commission, are not conclusive upon the courts and that none of the foregoing citations are exactly in point, that none of these cases or authors treat of a case exactly like the one presented. We are fortunate, however, in being able to cite, in answer to that contention, the case of Henry William Boyle, where exactly the same question was presented to the supreme court of the State of Idaho, which the applicants present here and where the courts held the doctrine of the cases applied. In the case of Boyle, he had been arrested after the privilege of the writ of habeas corpushad been suspended. He applied for a writ of habeas corpusto the supreme court of Idaho, alleging, among other things, in his application:chanrob1es virtual 1aw library

First: That ‘no insurrection, riot, or rebellion now exists in Shoshone County;’ and

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

In reply to this contention on the part of the applicant, Boyle, the court said:chanrob1es virtual 1aw library

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

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

‘It having been demonstrated to the satisfaction of the governor, after some six or seven years of experience, that the execution of the laws in Shoshone County through the ordinary and established means and methods was rendered practically impossible, it became his duty to adopt the means prescribed by the statute for establishing in said county the supremacy of the law and insuring the punishment of those by whose unlawful and criminal acts such a condition of things has been brought about; and it is not the province of the courts to interfere, delay, or place obstructions in the path of duty prescribed by law for the executive, but rather to render him all the aid and assistance in their power, in his efforts to bring about the consummation most devoutly prayed for by every good, law-abiding citizen in the State.’ (In re Boyle, 45 L.R.A., 1899, 832.)" (At pp. 99-104.)

These observations are followed on pages 104 to 115 by a compilation of decided cases centrally holding that "whenever the Constitution or a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, such person is to be considered the sole and exclusive judge of the existence of those facts." For the sake of brevity, We shall not quote the discussion anymore. We are confident there can be no dissent insofar as the general proposition stated is concerned.

Notably, in the unanimous decision of this Court in Montenegro, these views are totally adopted in a very brief passage thus:jgc:chanrobles.com.ph

"B. In his second proposition appellant insists there is no state of invasion, insurrection, rebellion or imminent danger thereof. ‘There are’ he admits ‘intermittent sorties and lightning attacks by organized hands in different places’; but, he argues, ‘such sorties are occasional, localized and transitory. And the proclamation speaks no more than of overt acts of insurrection and rebellion, not of cases of invasion, insurrection or rebellion or imminent danger thereof.’ On this subject it is noted that the President concluded from the facts recited in the proclamation, and others connected therewith, that ‘there is actual danger of rebellion which may extend throughout the country.’ Such official declaration implying much more than imminent danger of rebellion amply justifies the suspension of the writ.

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

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

Indeed as Justice Johnson said in that decision, whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the Archipelago." (At pp. 886-887.)

There are actually many more judicial precedents and opinions of knowledgeable and authoritative textwriters, that can be copied here, maintaining with inexorable logic why the Executive is incomparably best equipped and prepared to cope with internal and external aggression and that, indeed, the protection of the country against such contingencies is his sole responsibility not supposed to be shared by the Judiciary. But the proposition appears to Us so plain and ineluctable that to summon all of them to Our assistance could only open Us to the suspicion that the Philippine Supreme Court has to depend on borrowed thinking to resolve the most critical issues between individual rights, on the one hand, and state power exerted as a matter of self-defense against rebellion and subversion imperilling the country’s own survival, on the other. Emphatically, We don’t have to. Thank God We have enough native genius and indigenous means and resources to cope with the most delicate problems of statehood. Let others listen to and abide by the platitudinous and elegantly phrased dicta in Milligan, supra, Duncan and White, 14 they who are in and of the wealthiest and mightiest power in the world, that only actual military combat and related operations can justify martial law, but We, who are in and of a small and weak developing nation, let us hearken and follow the home-spun advice of our barrio folks cautioning everyone thus:jgc:chanrobles.com.ph

"Kung ang bahay mo ay pawid at kawayan, pagdilim ng ulap at lumalakas na ang hangin, magsara ka na ng bintana at suhayan mo ang iyong bahay." (When your house is made of nipa and bamboo, and you see the clouds darkening and the winds start blowing, it is time for you to close your windows and strengthen the support of your house.)

This could explain why under the Constitution, martial law can be declared not only in case of actual rebellion, but even only when there is imminent danger thereof. And that is why the open court rule established in Milligan and reiterated in Duncan and White is not controlling in this jurisdiction.

Besides, inasmuch as our people have included in the Constitution an express commitment of the power to the President, why do We have to resort to the pronouncements of other courts of other countries wherein said power is only implied? Regardless of what other courts believe their Executive may do in emergencies, our task is not to slavishly adopt what those courts have said, for there is no evidence that such was the intent of our constitutional fathers. Rather, We should determine for Ourselves what is best for our own circumstances in the Philippines, even if We have to give due consideration to the experience other peoples have gone through under more or less similar crises in the past.

In any event, regardless of their weight insofar as the suspension of the privilege of the writ of habeas corpusis concerned, We consider the reasons given in the above-quoted opinions in Barcelon and Montenegro of particular relevance when it comes to the imposition of martial law.



It may be that the existence or non-existence or imminence of a rebellion of the magnitude that would justify the imposition of martial law is an objective fact capable of judicial notice, for a rebellion that is not of general knowledge to the public cannot conceivably be dangerous to public safety. But precisely because it is capable of judicial notice, no inquiry is needed to determine the propriety of the Executive’s action.

Again, while the existence of a rebellion may be widely known, its real extent and the dangers it may actually pose to the public safety are not always easily perceptible to the unpracticed eye. In the present day practices of rebellion, its inseparable subversion aspect has proven to be more effective and important than "the rising (of persons) publicly and taking arms against the Government" by which the Revised Penal Code characterizes rebellion as a crime under its sanction (Art. 134, Revised Penal Code). Subversion is such a covert kind of anti-government activity that it is very difficult even for army intelligence to determine its exact area of influence and effect, not to mention the details of its forces and resources. By subversion, the rebels can extend their field of action unnoticed even up to the highest levels of the government, where no one can always he certain of the political complexion of the man next to him, and this does not exclude the courts. Arms, ammunitions and all kinds of war equipment travel and are transferred in deep secrecy to strategic locations, which can be one’s neighborhood without him having any idea of what is going on. There are so many insidious ways in which subversives act, in fact too many to enumerate, but the point that immediately suggests itself is that they are mostly incapable of being proven in court, so how are We to make a judicial inquiry about them that can satisfy our judicial conscience?

The Constitution definitely commits it to the Executive to determine the factual bases and to forthwith act as promptly as possible to meet the emergencies of rebellion and invasion which may be crucial to the life of the nation. He must do this with unwavering conviction, or any hesitancy or indecision on his part will surely detract from the needed precision in his choice of the means he would employ to repel the aggression. The apprehension that his decision might be held by the Supreme Court to be a transgression of the fundamental law he has sworn to "defend and preserve" would deter him from acting when precisely it is most urgent and critical that he should act, since the enemy is about to strike the mortal blow. Different men can honestly and reasonably vary in assessing the evidentiary value of the same circumstance, and the prospect of being considered as a constitutional felon rather than a saviour of the country should the Justices disagree with him, would put the Executive in an unenviable predicament, certainly unwise and imprudent for any Constitution to contemplate he should be in. But what is worse is that the Court is not equipped in any way with the means to adequately appreciate the insidious practices of subversion, not to say that it cannot do it with more or at least equal accuracy as the Executive. Besides, the Court would then be acting already with considerable hindsight considerations which can imperceptibly influence its judgment in overriding the Executive’s finding.

More than ever before, when rebellion was purely a surface action, and viewing the matter from all angles, it appears ineludible that the Court should refrain from interfering with the Executive’s delicate decision. After all, the sacred rights of individuals enshrined in the Bill of Rights and the other constitutional processes ever valuable to the people, but which admittedly cannot, by the way, be more important than the very survival of the nation, are not necessarily swept away by a state of martial law, for, as already pointed out earlier, the validity of the Proclamation is one thing, the administration of the government under it is something else that has to be done with the closest adherence to the fundamental law that the obvious necessities of the situation will permit. As We see it, it is in this sense that the Constitution is the supreme law equally in times of peace and of war and for all classes of men, if We must refer again to petitioners’ reliance on Milligan. At the same time, let us not overlook, in connection with this favorite authority of petitioners, that the Federal Supreme Court’s postulation therein, that it was "happily proved by the result of the great effort to throw off (the) just authority" of the United States during the Civil War that the constitution of that country contains within itself all that is necessary for its preservation, is not factually accurate, for all the world knows that if the American Union survived the ordeal of possible disinteration and is the great nation that she is today, it was not because President Lincoln confined himself strictly to the powers vested in the presidency by the constitution, but because he was wise enough to resort to inherent extraconstitutional state prerogatives, exercisable by the Executive alone, which President Marcos did not have to do, considering that our Constitution expressly confers upon him the authority to utilize such state power in defense of the nation.



The historical development of the powers of the Philippine Executive unmistakably points to the same direction. Practically all the constitutions that came into being during the revolutionary period before the turn of the last century, of which the Malolos Constitution is typical, either entrusted executive power to a commission or made the Executive largely dependent on the legislature. When the Americans ended their military occupation, after subduing the Aguinaldo forces of independence, they had their own version of governmental powers. In the Philippine Bill of 1902, nothing was mentioned about martial law, and the power of the Governor General to suspend the privilege of the writ of habeas corpuswas conditioned on, among other things, the concurrence of the Philippine Commission of which, notably, the Governor General was the head. When in 1905, the Governor General suspended the Privilege in the provinces of Cavite and Batangas, the case of Barcelon v. Baker, supra, arose. Over the dissent of Justice Willard who invoked Milligan, the Supreme Court held that the proclamation ordering such suspension was not reviewable by the Judiciary.

With a little touch of irony, in 1916, when the United States Congress, with the avowed intent of granting greater political autonomy to the Philippines, enacted the Jones Law, it removed the need for legislative concurrence in regards to the suspension of the Privilege, because the legislature was to be in Filipino hands, and in addition to preserving such power of suspension, granted the Governor-General the sole authority to declare martial law, subject only to revocation by the President of the United States. Without forgetting that at that time, the Governor-General being then an American, those powers served as weapons of the colonizer to consolidate its hold on the subject people, such plenitude of power in the Executive was to appear later to the Filipino leaders as something that should be adopted in our fundamental law. So it was that in the Constitutional Convention of 1934, the first the Philippines ever held in peace time, the delegates, drawing heavily from the experience of the country during the autonomous period of the Jones Law, and perchance persuaded in no small measure by the personality of President Manuel L. Quezon, lost no time in adopting the concept of a strong executive. Their decision was studied and deliberate. Indeed, it is the unanimous observation of all students of our Constitution, that under it, we have in the Philippines the strongest executive in the world. Fully aware of this feature and appearing rather elated by the apparent success of the delegates to reconcile the possible evils of dictatorship with the need of an executive who "will not only know how to govern, but will actually govern", President Claro M. Recto of the Convention remarked in his valedictory address adjourning the Assembly as follows:jgc:chanrobles.com.ph

"During the debate on the Executive Power it was the almost unanimous opinion that we had invested the Executive with rather extraordinary prerogatives. There is much truth in this assertion. But it is because we cannot be insensible to the events that are transpiring around us, events which, when all is said and done, are nothing but history repeating itself. In fact, we have seen how dictatorships, whether black or red, capitalistic or proletarian, fascistic or communistic, ancient or modern, have served as the last refuge of peoples when their parliaments fail and they are already powerless to save themselves from misgovernment and chaos. Learning our lesson from the truth of history, and determined to spare our people the evils of dictatorship and anarchy, we have thought it prudent to establish an executive power which, subject to the fiscalization of the Assembly, and of public opinion, will not only know how to govern, but will actually govern, with a firm and steady hand, unembarrassed by vexations, interferences by other departments, or by unholy alliances with this and that social group. Thus, possessed with the necessary gifts of honesty and competence, this Executive will be able to give his people an orderly and progressive government, without need of usurping or abdicating powers, and cunning subterfuges will not avail to extenuate his failures before the bar of public opinion." ("The Philippine Constitution � Sources, Making, Meaning, and Application" published by the Philippine Lawyers’ Association, p. 540.)

Of particular relevance to the present discussion is the fact that when an attempt was made by a few delegates led by Delegate Salvador Araneta of Manila to subject the Executive’s power to suspend the privilege of the writ of habeas corpusto concurrence or review by the National Assembly and the Supreme Court, the effort did not prosper, thereby strongly indicating, if it did not make it indubitably definite, that the intent of the framers of the fundamental law is that the Executive should be the sole judge of the circumstances warranting the exercise of the power thus granted. In any event, the only evidence of any thinking within the convention advocating the revocation of the Barcelon doctrine of which together with Milligan, they were or ought to have been aware, what with the best known lawyers in the Philippines in their midst, collapsed with the rejection of the Araneta proposal.

It was in the light of this historical development of the Executive Power that in 1951, the Supreme Court decided unanimously the case of Montenegro v. Castañeda, supra, reiterating the doctrine of conclusiveness of the Executive’s findings in the Barcelon case.

For all that it may be worthy of mention here, if only because practically the same Filipino minds, led by President Jose P. Laurel, were largely responsible for its formulation, the Constitution of the Second Philippine Republic born under aegis of the Japanese occupation of the Philippines during the Second World War, provided also for a strong executive. On this point, President Laurel himself had the following to say:jgc:chanrobles.com.ph

"The fundamental reason and necessity for the creation of a political center of gravity under the Republic is that, in any form of government � and this is especially true in an emergency, in a national crisis � there must be a man responsible for the security of the state, there must be a man with adequate powers, to face any given situation and meet the problems of the nation. There must be no shifting of responsibility; there must be no evasion of responsibility; and if a government is to be a real government and a scientific government there must be no two centers of gravity but one. (2 O.G. [J.M.A.], 873 [1943].)" (The Philippine Presidency by Irene R. Cortes, p. 14)

The foregoing is a logical follow-up of what Laurel had said in the 1934 Convention thus:jgc:chanrobles.com.ph

". . . A strong executive be is intended to be, because a strong executive we shall need, especially in the early years of our independent, or semi-independent existence. A weak executive is synonymous with a weak government. He shall not be a ‘monarch’ or a dictator in time of profound and Octavian peace, but he virtually so becomes in an extraordinary emergency; and whatever may be his position, he bulwarks, normally, the fortifications of a strong constitutional government, but abnormally, in extreme cases, be is suddenly ushered in as a Minerva, full-grown and in full panoply of war, to occupy the vantage ground as the ready protector and defender of the life and honor of his nation." (Emphasis supplied) (The Philippine Constitution, published by the Phil. Lawyers Association, Vol. I, 1969 Ed., p. 183.)

Thus, it is not surprising at all that without changing one word in the provision granting to the Executive the power to cope with the emergencies under discussion, the 1971 Convention fortified thru related provisions in the transitory portion of the Constitution the applicability of the Barcelon and Montenegro concepts of the Executive’s power, as applied to the imposition of martial law, thereby weakening pro tanto, as will be seen in the following pages, the impact of Our Lansang doctrine, for the purposes of the precise issue now before Us.

At this juncture, it may be pointed out that the power granted to the Executive to place the country or any part thereof under martial law is independent of the legislative grant to him of emergency powers authorized under the following provision of the 1935 Constitution:jgc:chanrobles.com.ph

"Sec. 26. In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy." (Art. VI, sec. 26, 1935 Constitution.)

This provision is copied verbatim in the 1973 Charter except for the reference to the Prime Minister instead of to the President and the addition of the following sentence indicating more emphatically the temporary nature of the delegation:jgc:chanrobles.com.ph

"Unless sooner withdrawn by resolution of the National Assembly, such powers shall cease upon its next adjournment." (Section 15, Article VIII, 1973 Constitution of the Philippines.)

The point that immediately surges to the mind upon a reading of this provision is that in times of war or other national emergency it is definitely to the Executive that the people thru the fundamental law entrust the running of the government, either by delegation of the legislative power to him thru an express enactment of the Legislature to that effect or by direct authorization from the Constitution itself to utilize all the powers of government should he find it necessary to place the country or any part thereof under martial law. Additional evidence of such clear intent is the fact that in the course of the deliberations in the Constitutional Convention of 1934 of the proposal to incorporate the above provision in the charter, Delegate Wenceslao Vinzons of Camarines Norte moved to delete the same for fear that the concentration of powers in one man may facilitate the emergence of a dictatorship. He said in part:jgc:chanrobles.com.ph

"The power to promulgate rules and regulations in times of emergency or war is not recognized in any constitution except, perhaps, the Constitution of Denmark, which provides that in case of special urgency the King may, when the Reichstag is not in session, issue laws of temporary application. Such laws, however, shall not be contrary to the Constitution, and they shall be submitted to the Reichstag in its next session. So, even in a kingdom like Denmark, the powers of the King are limited in times of emergency.

"Under the Constitution we are drafting now, there is absolutely no limit except when the National Assembly specifies at the inception of the grant of power.

"I want to warn, Mr. President, of a future condition in our Republic when we shall no longer be under the tutelage of any foreign power, when we shall have to work for our own destiny. I want to say that I am not very positive in stating here that we shall have a dictatorship because the structure of the government that we are creating permits its establishment, but the power to promulgate rules and regulations will give rise to a strong man who may, in a desire to gratify his personal ambitions, seize the reins of government." (Page 391, Volume Five, The Philippine Constitution, Its Origins, Making, Meaning, and Application, a publication of the Philippine Lawyers Association, 1972.)

Despite such eloquent warning, the assembly voted down his motion.

It is now contended that instead of declaring martial law, President Marcos should have sought from Congress the approval of an emergency powers act similar to Commonwealth Acts 600 and 671 passed respectively on August 19, 1940, long before the Japanese invasion, and December 16, 1941, when the Nippon Army was already on its way to Manila from Lingayen and other landing points in the North.

To start with, Congress was not unaware of the worsening conditions of peace and order and of, at least, evident insurgency, what with the numerous easily verifiable reports of open rebellious activities in different parts of the country and the series of rallies and demonstrations, often bloody, in Manila itself and other centers of population, including those that reached not only the portals but even the session hall of the legislature, but the legislators seemed not to be sufficiently alarmed or they either were indifferent or did not know what to do under the circumstances. Instead of taking immediate measures to alleviate the conditions denounced and decried by the rebels and the activists, they debated and argued long on palliatives without coming out with anything substantial, much less satisfactory in the eyes of those who were seditiously shouting for reforms. In any event, in the face of the inability of Congress to meet the situation, and prompted by his appraisal of a critical situation that urgently called for immediate action, the only alternative open to the President was to resort to the other constitutional source of extraordinary powers, the Constitution itself.

It is significant to note that Commonwealth Act 671 granted the President practically all the powers of government. It provided as follows:jgc:chanrobles.com.ph

"Sec. 1. The existence of war between the United States and other countries of Europe and Asia, which involves the Philippines, makes it necessary to invest the President with extraordinary powers in order to meet the resulting emergency.

"Sec. 2. Pursuant to the provisions of Article VI, section 16, of the Constitution, the President is hereby authorized, during the existence of the emergency, to promulgate such rules and regulations as he may deem necessary to carry out the national policy declared in section 1 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the Government or any of its subdivisions, branches, departments, offices, agencies or instrumentalities; (b) to reorganize the Government of the Commonwealth including the determination of the order of precedence of the heads of the Executive Departments; (c) to create new subdivisions, branches, departments, offices, agencies or instrumentalities of government and to abolish any of those already existing; (d) to continue in force laws and appropriations which would lapse or otherwise become inoperative, and to modify or suspend the operation or application of those of an administrative character; (e) to impose new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the issuance of bonds or otherwise, and to authorize the expenditure of the proceeds thereof; (g) to authorize the National, provincial, city or municipal governments to incur in overdrafts for purposes that he may approve; (h) to declare the suspension of the collection of credits or the payment of debts; and (i) to exercise such other powers as he may deem necessary to enable the Government to fulfill its responsibilities and to maintain and enforce its authority.

"Sec. 3. The President of the Philippines shall as soon as practicable upon the convening of the Congress of the Philippines report thereto all the rules and regulations promulgated by him under the powers herein granted.

"Sec. 4. This act shall take effect upon its approval, and the rules and regulations promulgated hereunder shall be in force and effect until the Congress of the Philippines shall otherwise provide."cralaw virtua1aw library

From this extensive grant of immense powers, it may be deduced that the difference between martial law and the delegation of legislative power could be just a matter of procedure in that the investment of authority in the former is by the Constitution while in the latter it is by the Legislature. The resulting constitutional situation is the same in both � government by the Executive. It can be said that even the primacy of military assistance in the discharge of government responsibilities would be covered by the exercise of the delegated authority from Congress.

What is most important, however, is that the Constitution does not prohibit the declaration of martial law just because of the authority given to the Legislative to invest the Executive with extraordinary powers. It is not to be supposed that in the face of the inability or refusal of the Legislature to act, the people should be left helpless and without a government to cope with the emergency of an internal or external aggression. Much less is it logical to maintain that it is the Supreme Court that is called upon to decide what measures should be taken in the premises. Indeed, the fundamental law looks to the Executive to make the choice of the means not only to repel the aggression but, as a necessary consequence, to undertake such curative measures and reforms as are immediately available and feasible to prevent the recurrence of the causes of the emergency.

Petitioners are capitalizing on the pronouncements of this Court in Lansang. We feel, however, that such excessive reliance is not altogether well placed.

The exact import of the Lansang doctrine is that it is within the constitutional prerogative of the Supreme Court to inquire into the veracity of the factual bases recited by the Executive in a proclamation ordering the suspension of the privilege of the writ of habeas corpus, for the purpose of determining whether or not the Executive acted arbitrarily in concluding from the evidence before him that there was indeed a rebellion and that public necessity, as contemplated in the Constitution, required such suspension. In other words, We held therein that the issue of legality or illegality of a proclamation suspending the Privilege is a justiciable one, in regard to which the Court could make independent findings based on the evidence on which the President himself acted. Actually, however, no real hearing was held for the purpose in that case. What might perhaps be considered as such a hearing was what took place on October 28 and 29, 1971, when, because of the willingness expressed by the respondents therein to impart to the Court classified information relevant to the cases, subject to appropriate security measures, the Court met behind closed doors, and in the presence of three attorneys representing the petitioners therein and the Solicitor General, it was briefed by the Chief of Staff of the Armed Forces and other ranking military officials on said classified information, after which the parties were granted time to file their respective memoranda of observations on the matters revealed in the briefing, which they did. (See 42 SCRA, at pp. 466-467). In the present cases there has been no such hearing, not even a briefing wherein petitioners were represented. And it is gravely doubtful whether any move in that direction would prosper, considering there are not enough members of the Court, who believe in the juridical relevance thereof, to constitute the required majority for a binding action to order such a hearing or even just a similar briefing as before.

Be that as it may, the important point is that Lansang referred to the extent of the powers of the Court in regard to a proclamation suspending the Privilege whereas what is before Us now is a proclamation imposing martial law. We hold that the powers of the Executive involved in the two proclamations are not of the same constitutional level and the prerogatives of the Court relative to habeas corpusare distinct from those in the perspective of martial law.

To start with, it is too evident to admit of dispute that the aforequoted constitutional provision touching on the three powers of the Executive, the calling of the armed forces, the suspension of the privilege and the imposition of martial law contemplates varying and ascending degrees of lawlessness and public disorder. While it is true that textually any of the three courses of action mentioned may be taken by the Executive on the occasion of an invasion, insurrection or rebellion, the degree of resulting repression of individual rights under each of them varies so substantially that it cannot be doubted that the constitution contemplates that the determination as to which of them should be taken should depend on the degree of gravity of the prevailing situation. In other words, it is the actual magnitude of the rebellion to be suppressed and the degree and extent of danger to public safety resulting therefrom that determines whether it should be the first, the second or the third that should be taken in order that there may be a direct proportion between the degree of gravity of the crisis and the restraint of individual rights and liberties. When the situation is not very serious but is nevertheless beyond the control of the regular peace authorities of the place affected, then the armed forces can be called. Should the conditions deteriorate in such a way as to involve a considerable segment of the population, thereby making it difficult to maintain order and to differentiate the loyal from the disloyal among the people, without detaining some of them, either preventively or for their delivery to the proper authorities after the emergency or as soon as it eases, then the privilege of the writ of habeas corpusmay also be suspended. But the moment the situation assumes very serious proportions, to the extent that there is a breakdown of the regular government machinery either because the officials cannot physically function or their functioning would endanger public safety, martial law may be imposed. There is thus a marked gradation of the circumstances constituting rebellion and danger to public safety in the provision, and it is to be supposed that the measure to be adopted by the Executive should be that which the situation demands.

The calling of the armed forces is done by the Executive in his capacity as Commander-in-Chief. The power thus exercised is purely executive and does not cause any disturbance in the constitutional order in the government. In the case of suspension of the Privilege, individual rights guaranteed by the Bill of Rights are restrained, but otherwise the regular constitutional machinery and the powers and functions of the different officials of the government, including the courts, remain unaffected. Moreover, the suspension of the Privilege, although premised on the demand of public safety, need not be necessarily predicated on the requirements of national security as should be the case with martial law. Again, the power exercised in suspension is executive power and nothing more. But when martial law is proclaimed, there is, as already observed earlier, a subrogation of the regular government machinery by the constitutionally designated administrator with the aid of the military. What is exercised in this instance is not executive power alone but state power which involves the totality of government authority, but without an actual military takeover, if only because the civilian President remains at the head.

In this connection, it is very important to note that whereas the Bill of Rights explicitly prohibits the suspension of the Privilege of the writ of habeas corpusexcept under the detailed circumstances prescribed therein, including the limitations as to the time and place when and where it may stay suspended, there is no similar injunction in regard to the imposition of martial law. In other words, the grant of the power to declare martial law in the Executive portion of the Constitution is not countered, unlike in the case of habeas corpus, by a prohibition in the Bill of Rights, the sanctuary of individual liberties.

Invoking Lansang, petitioners argue that if an order of suspension of the Privilege which involves less repression of constitutional processes than martial law is reviewable by the courts, with more reason should the imposition of martial law, whose effect upon the constitutional rights and processes is more pervasive, be subject to a judicial test of constitutionality. Viewing it from the angle of individual rights, the argument sounds plausible, but when it is considered that the framers of the Bill of Rights never bothered to put the same or any similar breaks to the imposition of martial law as that which they placed in regard to suspension, it can be readily seen that because of the gravity of the crisis predicating the extreme remedy of martial law, the constitution itself makes the invocation of individual rights subordinate to the national interest involved in the defense of the state against the internal aggression that confronts it. From this consideration, it follows that whatever standard of constitutionality was established by the Court in Lansang relative to Suspension is not necessarily the measure of the powers the Court can exercise over the Executive’s proclamation of martial law. What the Constitution purposely and with good reason differentiates, the Court may not equate.

At any rate, We do not believe this is the proper occasion for the Court to alter or modify what We said in Lansang. All that We say here is that Lansang does not reach the martial law powers of the Executive, if only because that case involved exclusively the question of legality of the detention, during the Suspension, of some individuals, the petitioners therein, whereas here We are dealing with the deprivation of liberty of petitioners as a direct consequence of martial law, and in effect the real question before Us now is the legality of the martial law regime itself, which, as already demonstrated, occupies a different level in the constitutional order of Executive power, specially when considered from the point of view of the Bill of Rights.

But even if We must refer to the considerations of the Court in formulating Lansang, We cannot disregard the impact of contemporary constitutional developments related thereto. The Constitutional Convention of 1971 had barely started its relevant deliberations when Lansang was decided. It is to be assumed that the delegates were well informed about its import. Indeed, they must have focused their attention thereto when martial law was proclaimed in September of 1972, if only because some of the delegates were apprehended and detained and had forthwith filed the petitions now pending before Us. The delegates knew or ought to have known that under the existing Constitution, the Bill of Rights made no mention of the possible imposition of martial law in the section prohibiting the suspension of the privilege of the writ of habeas corpus. Instead of seeing to it that in the charter they were drafting the prohibition as to habeas corpusshould he extended to the declaration of martial law, in order to make the contingency thereof as difficult as in the case of the former, they evidently found more reason to concur in the construction pursued by President Marcos of the prerogatives which the Constitution empowers him to utilize during a rebellion or invasion. Accordingly, to erase further doubts on the matter, the Convention enacted the transitory provision earlier referred to making the Proclamation, among others, part of the law of the land, which provision, We deem, at this point, not as a fiat placing the Proclamation definitely beyond the pale of unconstitutionality, but as a contemporary authoritative construction of the current charter by the body precisely called to examine it carefully and determine its defects that should be corrected, to the end that the rights of the people may be best safeguarded. Verily, such construction is entitled to due respect from Us, particularly because it has been in effect, if not directly, approved by the people, not only in the referendum of January 10-15, 1973 assailed by petitioners but in the other one held by secret ballot on July 27-28, 1973 under the supervision of the Commission on Elections. And in the light of such construction, Our considered view is that Lansang is not controlling on the issues regarding martial law involved in these cases.

Perhaps, it may not be amiss to add here that although the records of the Constitutional Convention of 1934 do not reveal the actual reasons for the rejection of the amendment proposed by Delegate Vicente J. Francisco to include in the Bill of Rights provision regarding habeas corpusthe reference made to imminent danger of invasion, insurrection or rebellion in the enumeration of the powers of the Executive relative to the same subject, it is quite possible that in the mind of the convention it was not absolutely necessary to suspend the Privilege when the danger is only imminent unless the element of public safety involved already requires the imposition of martial law. Relatedly, Delegate Araneta who as earlier mentioned, proposed to subject the suspension of the Privilege to legislative or judicial concurrence or review, and who appeared to be the most bothered, among the delegates, about the exertion of executive power during the emergencies contemplated, never said a word against the manner in which the Executive was being granted the authority to impose martial law, much less proposed any restriction upon it the way he did with the suspension of the Privilege. This goes to show that the feeling in the assembly was to regard martial law differently from the suspension and to recognize that its imposition should not be tramelled nor shackled by any provision of the Bill of Rights.



There are insurmountable pragmatic obstacles to the theory of justiciability sustained by petitioners.

The most important of this is that there is no known or recognized procedure which can be adopted in the proposed inquiry into the factual bases of the Executive’s proclamation to insure that the degree of judicious and fair hearing and determination of facts might be approximated. Admittedly, the ordinary rules of pleading, practice and evidence are out of the question. The relevant elemental facts are scattered throughout the length and breath of the country, and there is no conceivable judicial camera that can catch the whole picture with adequate fidelity to the truth. Perhaps judicial notice can help, but the elements of public safety are not properly susceptible of judicial notice when it comes to covert subversive activities. The problems of demonstration are manifold, and when it is borne in mind that, in the very nature of things and under universally accepted norms of state protection, there is a wall, inpenetrable even to the judiciary, behind which the state rightfully keeps away from other Departments matters affecting national security, one will realize the futility of believing that the Court can, assuming it were, by some curious way of reasoning, legally required to do so, properly perform its judicial attributes when it comes to determining in the face of an apparently nationwide rebellion, whether or not martial law should be proclaimed by the Executive, instead of resorting to the lesser remedies of calling the armed forces or suspending the Privilege. Besides, for the Court to be able to decide whether or not the action of the Executive is arbitrary, it must, in justice to both parties, and to him in particular, act in the light of the same evidence from which he drew his conclusion. How can such evidence be all gathered and presented to the Court?

Some members of the Court are of the firm conviction that it is Our constitutional duty to indulge in the suggested inquiry, so We can be assured in Our own conscience, and for the protection of the people, whether or not President Marcos has acted arbitrarily. But prescinding from the difficulties of demonstration just discussed, from what evidence is the Court going to draw its own conclusions in the cases at bar, when We have not even been told what evidence the President had before him, except those that may be inferred from the whereases of the Proclamation which are disputed by petitioners? On the other hand, how can We have all the evidence before US, when in the very nature thereof We cannot have access to them, since they must be kept under the forbidding covers of national security regulations? Even the standing ordinary rules of evidence provide in this respect thus:jgc:chanrobles.com.ph

"SEC. 21. Privilege communication. �



(e) A public officer cannot be examined during his term of office or afterwards, as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure" (Rule 130, Revised Rules of Court of the Philippines).

The inevitable conclusion is that the Constitution must have intended that the decision of the Executive should be his alone.

If We should hold that the matter before Us is justiciable, the practical result would be that even if the Court should now decide in the style of Lansang that the President did not act arbitrarily in issuing the Proclamation, We would have to be ready to entertain future petitions, one after the other, filed by whosoever may be minded to allege, for his own purpose, that conditions have so improved as to warrant the lifting of martial law. Accordingly, every now and then the Court would have to hear the parties and evaluate their respective evidence. The Government would have to appear and prove all over again the justifications for its action. The consequence would be that instead of devoting his time to the defense of the nation, the President would be preparing himself for the court battle. It is ridiculous to think that the members of the Constitutional Convention had conceived placing such difficulties in the way of the Executive which make of his function of defending the state a continuous running battle in two separate fronts, one with the enemy another with the courts. It is suggested that the Court can summarily dismiss any such future petitions in cavalier fashion by simply holding on to the finding We would make in these cases. But new allegations and arguments are bound to be made, and it is definitely improper for Us to just summarily uphold the Executive everytime a case comes up.

What is more absurd is fiat the Supreme Court is not the only court in which a petition to lift may be filed. Imagine if petitions were filed in two or three Courts of First Instance, what would happen? In this connection, We are in no position to enjoin the lower courts to entertain such petitions because they may refer to the proposed lifting of martial law only in the respective provinces where the courts are, and We cannot hold, precisely because of Our own characterization of the nature of the issue as justiciable, or more simply, that the Proclamation is subject to the review of factual bases by the court, that any of said courts is without jurisdiction to entertain the petition. Stated otherwise, every court would then be open to pass on the reasonability or arbitrariness of the President’s refusal or failure to lift martial law. We do not mean to insinuate that the lower court judges may not be prepared for the purpose, but the spectacle alone of several of such petitions pending in various courts, without visualizing anymore the potentiality of one judge or another upholding the proponent, is something that will not only foreseeably complicate our international relations but will also detract from our image as a people trained in the field of government. All of these considerations suggest again that it is best that the Judiciary abstain from assuming a role not clearly indicated in the Constitution to pertain to it.



THE SUPREME COURT ABSTAINS FROM REVIEWING PROCLAMATION 1081, BECAUSE, IN THE LIGHT OF THE CONSIDERATIONS HEREIN DISCUSSED, IT IS CONVINCED THAT THE CONSTITUTION CONTEMPLATES THAT THE DECLARATION OF MARTIAL LAW SHOULD BE THE RESPONSIBILITY SOLELY OF THE EXECUTIVE, BUT SHOULD ANY OCCASION OF OPEN DEFIANCE AND MANIFEST DISREGARD OF THE PERTINENT CONSTITUTIONAL PROVISION ARISE, THE COURT IS NOT POWERLESS TO "SUPPORT AND DEFEND" THE CONSTITUTION.

The greatest fear entertained by those who would sustain the Court’s authority to review the action of the President is that there might be occasions when an Executive drunk with power might without rhyme or reason impose martial law upon the helpless people, using the very Constitution itself as his weapon of oppression to establish here a real dictatorship or totalitarian government. The view is that it is only the Supreme Court that can prevent such a dismal eventuality by holding that it has the final authority and inescapable duty to define the constitutional boundaries of the powers of the Executive and to determine in every case properly brought before it whether or not any such power has been abused beyond the limits set down by the fundamental law, and that unless We hold here that the Court can determine the constitutional sufficiency of Proclamation 1081 in fact and in law, the Filipino people would have no protection against such an abusive Executive.

We here declare emphatically that such apprehension is definitely unfounded. Precisely, in this decision, We are holding that the Court has the jurisdiction, the power and the authority to pass on any challenge to an Executive’s declaration of martial law alleged in a proper case affecting private or individual rights to be unwarranted by the Constitution. In these cases, however, we do not see any need for the interposition of our authority. Instead what appears clear to Us, in the light of the considerations We have discussed above, and so We bold, is that the Solicitor General is eminently correct in contending that in the circumstantial and constitutional milieu of the impugned Proclamation, We should abstain from conducting the suggested inquiry to determine their constitutional sufficiency.

In the way We see the martial law provision of the Constitution, only two hypotheses can be considered relative to the Constitutional problem before Us. Either the Executive acts in conformity with the provision or he does not. In other words, either he imposes martial law because there is actually a rebellion endangering the public safety or he does it for his own personal desire to grab power, notwithstanding the absence of the factual grounds required by the fundamental law. In the latter case, the Court would have the constitutional power and duty to declare the proclamation issued null and void. But to do this it does not have to conduct a judicial inquiry by the reception of evidence. It should be guided solely by facts that are of judicial notice. Thus, if the predicative recitals of the proclamation are confirmed by facts of general public knowledge, obviously any further inquiry would be superfluous. On the other hand, in the contrary hypothesis, that is, it is publicly and generally known that there is no rebellion of the nature and extent contemplated in the Constitution, no amount of evidence offered by the Executive can judicially create such a rebellion. Indeed, as observed elsewhere in this opinion, a rebellion that does not come to the judicial notice of the Court cannot warrant the imposition of martial law, particularly in reference to one imposed over the whole country. But once it is known to the Court by judicial notice that there is a rebellion, it would constitute an undue interference with the constitutional duties and prerogatives of the Executive for the Court to indulge in an inquiry as to the constitutional sufficiency of his decision. Whether or not public safety requires the drastic action of imposing martial law already involves the exercise of judgment, which as far as We can see is committed to the responsibility of the Executive as the protector and defender of the nation. Our considered view is that in such circumstances, the Constitution rather expects the Court to defer to his decision. Under this concept of the powers of the Court relative to the exercise by the Executive of his martial law prerogatives, the Court does not relinquish its authority as guardian of the Constitution and the Executive, guided solely by his own sense of responsibility under his solemn oath "to defend and preserve" the Constitution, can proceed with his task of saving the integrity of the government and the nation, without any fear that the Court would reverse his judgment.

To be sure, it could have sufficed for Us to point out, in answer to the contention about possible abuse, that it is axiomatic in constitutional law that the possibility that an official might abuse the powers conferred upon him by law or by the Charter does not mean that the power does not exist or should not be granted. This Court affirmed this principle not only in Barcelon v. Baker, quoted supra, which was the precursor perhaps of the extreme of judicial self-restraint or abstention in this jurisdiction but even in Angara v. Electoral Commission, 63 Phil. 139, reputedly the vanguard of judicial activism in the Philippines. Justice Laurel postulated reassuringly on this point in Angara thus: "The possibility of abuse is not an argument against the concession of power as there is no power that is not susceptible of abuse" (at p. 177). And We could have complemented this ratiocination with the observation that it is most unlikely that the Filipino people would he penalized by Divine Providence with the imposition upon them of an Executive with the frightening characteristics ominously portrayed by those who advocate that the Court, assuming its own immunity from being abusive, arbitrary or improvident, should not recognize any constitutionally envisioned deference to the other Departments of the Government, particularly the Executive.

We can feel, however, that the people need further reassurance. On this score, it is opportune to recall that in Avelino v. Cuenco, 83 Phil. 68, in spite of the fact that in the Resolution of March 4, 1949, this Court refused to intervene in the controversy between the parties as to whether or not there was a valid election of a new President of the Senate, upon the ground that the issue involved was purely political, in the subsequent Resolution of March 14, 1949, upon realizing that a critical situation, detrimental to the national interest, subsisted as a consequence of its abstention, the Court reversed itself and assumed the power to state categorically the correct solution to the conflict based on its interpretation of the pertinent provisions of the Constitution.

Again, in January, 1962, in the space of several hours, 350 appointments to different positions in the government, including Justices of the Supreme Court and of the Court of Appeals and judges of the lower courts, fiscals, officers of the Army, directors of bureaus, Governor of the Central Bank, and others were sent by the President then to the Commission on Appointments on December 29, 1961, the day preceding his last half-day in office, December 30, 1961. Upon the said appointments being impugned in the Supreme Court, the Court, aghast by the number of and the speed in the making of said appointments, the fact that they were made under circumstances that betrayed not only lack of proper and deliberate consideration of the qualifications of the appointees but also an evident intent to deprive the succeeding President from filling the vacancies that had been left vacant even after the results showing the defeat of the incumbent President had already been publicly known and conceded, the departure from long established practices in their preparation as well as the other undesirable circumstances that surrounded the same, promptly struck them down as the product of an improvident exercise of power, obnoxious to the precepts underlying the principled government conceived in the Constitution.15 The violation of the spirit and intent of the Constitution appeared manifest to the Court on the basis of facts which were mainly if not all of judicial notice and, therefore, needed no further demonstration in an inquiry or investigation by the Court. Under more or less a similar setting of circumstances, which occurred in the latter part of the term of the President whose tenure expired on December 30, 1965, the Supreme Court reiterated the above ruling in Guevarra v. Inocentes, 16 SCRA 379.

Thus everyone can see that when situations arise which on their faces and without the need of inquiry or investigation reveal an unquestionable and palpable transgression of the Constitution, the Supreme Court has never been without means to uphold the Constitution, the policy of judicial self-restraint implicit therein notwithstanding. The precedents just related relate to peaceful controversies, and, of course, the alleged violation of the Constitution by the Executive in the exercise of a power granted to him to meet the exigencies of rebellion and the dangers to public safety it entails has to be considered from a different perspective. Even then, the Supreme Court would not be powerless to act. Until all of its members are incarcerated or killed and there are not enough of them to constitute a quorum, the Court would always be there ready to strike down a proclamation of martial law as unconstitutional, whenever from the facts manifest and generally known to the people and to it, and without its having conducted any inquiry by the reception of evidence, it should appear that the declaration is made without any rational basis whatsoever and is predicated only on the distorted motives of the Executive. For as long, however, as the recitals or grounds given in a proclamation accord substantially with facts of judicial notice, either because they are of public knowledge or are by their nature capable of unquestionable demonstration, We have no reason to interfere with the discharge by the Executive of a responsibility imposed upon him by the Constitution and in which there is no indication therein that the Court should share. But when, as just stated, it is generally known or it is of public knowledge that there is no rebellion or, there being one, that it poses no conceivable danger to the public safety, and, God forbid, martial law is proclaimed, the Court, even without the need of any kind of judicial inquiry into the facts alleged in the proclamation, will certainly act and declare the pretentious Executive a constitutional outlaw, with the result that the regular government established by the Constitution may continue in the hands of those who are constitutionally called upon to succeed him, unless he overcomes the legitimate government by force. In truth, such is the only way the Supreme Court should act in discharging its duty to uphold the Constitution by the use of the judicial power, if it is to give to the Executive or the Legislature, as the case may be, the due regard that the Constitution contemplates should be accorded to them in consideration of their own functions and responsibilities implicit in the principle of separation of powers embodied therein.





The foregoing discussion covers, as must have been noted, the resolution not only of the issue of jurisdiction raised by the respondents but also of the corollary question of the application of the Lansang doctrine. Not only that, from what has been said, it is obvious that since it is to the President that the Constitution has committed the discretion to impose martial law, it follows that he alone should have the discretion and the prerogative to declare when it should cease or be lifted. Exactly the same considerations compelling the conclusion that the Court may not review the constitutional sufficiency of his proclamation of martial law make it ineludible to conclude that the people have also left it to the Executive to decide when conditions would permit the full restoration of the regular constitutional processes. With characteristic perceptive insight, in his thesis to be cited infra, Justice Guillermo S. Santos of the Court of Appeals, discourses on this point as follows:jgc:chanrobles.com.ph

"44. When Martial Rule is Terminated �

In both England and the United States martial rule terminates ipso facto upon the cessation of the public emergency that called it forth. To this proposition there has been no dissent. Martial rule must cease when the public safety no longer require its further exercise.

"45. Who Terminates Martial Rule �

Since the declaration of martial rule has been committed to the judgment of the President, it follows that its termination is to be fixed by the same authority. (Barcelon v. Baker, 1905, 5 Phil. 87.) Again, to this view there cannot be any valid objection. It would seem only natural that since the President has been expressly authorized to declare martial rule no other authority should be permitted to terminate it." (Martial Law, Nature, Principles and Administration by Guillermo S. Santos, p. 75.)

Needless to say, it is our Constitution that controls in the cases at bar, not the American theory. In fact, when President Laurel proclaimed martial law during the Second World War, he expressly provided, to avoid any doubt about the matter, thus:jgc:chanrobles.com.ph

"8. The proclamation of martial law being an emergency measure demanded by imperative necessity, it shall continue as long as the need for it exists and shall terminate upon proclamation of the President of the Republic of the Philippines."cralaw virtua1aw library

In the interest of truth and to set Our perspective aright, it may not be said that under Proclamation 1081 and the manner in which it has been implemented, there has been a total suspension, much less an abrogation, of the Constitution. Even textually, the ensuing orders issued by the President have left virtually unaltered the established constitutional order in all levels of government and society except those that have to be adjusted and subjected to potential changes demanded by the necessities of the situation and the attainment of the objectives of the declaration. Repeatedly and emphatically, the President has solemnly reassured the people that there is no military takeover and that the declared principle in the Constitution that "Civilian authority is at all times supreme over the military" (Section 8, Article II, 1973 Charter) shall be rigorously observed. And earlier in this opinion, We have already discussed how he restored the security of tenure of the members of the Court and how the judicial power has been retained by the courts, except in those cases involving matters affecting national security and public order and safety which the situation demands should be dealt with by the executive arms of the government.

When President Lincoln proclaimed martial law in Kentucky in 1864, he did not completely overhaul the existing machinery, he let it continue insofar as it did not obstruct the military operations and related activities. He ordered thus:jgc:chanrobles.com.ph

"Whereas many citizens of the State of Kentucky have joined the forces of the insurgents, and such insurgents have, on several occasions, entered the said State of Kentucky in large force, and, not without aid and comfort furnished by disaffected and disloyal citizens of the United States residing therein, have not only disturbed the public peace but have overborne the civil authorities and made flagrant civil war, destroying property and life in various parts of the State: And whereas it has been made known to the President of the United States by the officers commanding the national armies, that combinations have been formed in the said State of Kentucky with a purpose of inciting rebel forces to renew the said operations of civil war within the said State, and thereby to embarrass the United States armies now operating in the said States of Virginia and Georgia, and even to endanger their safety: . . . "The martial law herein proclaimed, and the things in that respect herein ordered, will not be deemed or taken to interfere with the holding of lawful elections, or with the proceedings of the constitutional legislature of Kentucky, or with the administration of justice in the courts of law existing therein between citizens of the United States in suits or proceedings which do not affect the military operations or the constituted authorities of the government of the United States." (Martial Law, Nature, Principles and Administrative, by Guillermo S. Santos, pp. 97-98.)

Incidentally, there is here a clear repudiation of the open court theory, and what is more, even the holding of regular elections and legislative sessions were not suppressed. 16 Accordingly, the undeniable fact that the Philippine Congress was in session, albeit about to adjourn, when martial law was declared on September 21, 1972 is not necessarily an argument against the exercise by the President of the power to make such a declaration.

President Laurel’s own declaration of martial law during the Japanese occupation did not involve a total blackout of constitutional government. It reads in its pertinent portions thus:"jgc:chanrobles.com.ph



"4. All existing laws shall continue in force and effect until amended or repealed by the President, and all the existing civil agencies of an executive character shall continue exercising their powers and performing their functions and duties, unless they are inconsistent with the terms of this Proclamation or incompatible with the expeditious and effective enforcement of martial law herein declared.

"5. It shall be the duty of the Military Governors to suppress treason, sedition, disorder and violence; and to cause to be punished all disturbances of public peace and all offenders against the criminal laws; and also to protect persons in their legitimate rights. To this end and until otherwise decreed, the existing courts of justice shall assume jurisdiction and try offenders without unnecessary delay and in a summary manner, in accordance with such procedural rules as may be prescribed by the Minister of Justice. The decisions of courts of justice of the different categories in criminal cases within their original jurisdiction shall be final and unappealable: Provided, however, That no sentence of death shall be carried into effect without the approval of the President.

"6. The existing courts of justice shall continue to be invested with, and shall exercise, the same jurisdiction in civil actions and special proceedings as are now provided in existing laws, unless otherwise directed by the President of the Republic of the Philippines."cralaw virtua1aw library

Proclamation 1081 is in no sense any more constitutionally offensive. In fact, in ordering detention of persons, the Proclamation pointedly limits arrests and detention only to those "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." Indeed, even in the affected areas, the Constitution has not been really suspended much less discarded. As contemplated in the fundamental law itself, it is merely in a state of anaesthesia, to the end that the much needed major surgery to save the nation’s life may be successfully undertaken.



The next issue to consider is that which refers to the arrest and continued detention and other restraints of the liberties of petitioners, and their main contention in this respect is that the proclamation of martial law does not carry with it the suspension of the privilege of the writ of habeas corpus, hence petitioners are entitled to immediate release from their constraints.

We do not believe such contention needs extended exposition or elaboration in order to be overruled. The primary and fundamental purpose of martial law is to maintain order and to insure the success of the battle against the enemy by the most expeditious and efficient means without loss of time and with the minimum of effort. This is self-evident. The arrest and detention of those contributing to the disorder and especially of those helping or otherwise giving aid and comfort to the enemy are indispensable, if martial law is to mean anything at all. This is out logical. To fight the enemy, to maintain order amidst riotous chaos and military operations, and to see to it that the ordinary constitutional processes for the prosecution of law-breakers are three functions that cannot humanly be undertaken at the same time by the same authorities with any fair hope of success in any of them. To quote from Malcolm and Laurel, "Martial law and the privilege of that writ (of habeas corpus) are wholly incompatible with each other." (Malcolm and Laurel, Philippine Constitutional Law, p. 210). It simply is not too much for the state to expect the people to tolerate or suffer inconveniences and deprivations in the national interest, principally the security and integrity of the country.

Mere suspension of the Privilege may be ordered, as discussed earlier, when the situation has not reached very critical proportions imperilling the very existence of the nation, as long as public safety demands it. It is, therefore, absurd to contend, that when martial law, which is precisely the ultimate remedy against the gravest emergencies of internal or external aggression, is proclaimed, there is no suspension of the Privilege unless this is separately and distinctly ordered. Considering that both powers spring from the same basic causes, it stands to reason that the graver sanction includes the lesser, It is claimed that President Laurel treated the two matters separately in his aforequoted proclamation. We do not believe that the precedent cited controls. It only proves that to avoid any doubt, what President Laurel did may be adopted. There can be no denying the point that without suspension of the Privilege, martial law would certainly be ineffective. Since martial law involves the totality of government authority, it may be assumed that by ordering the arrest and detention of petitioners and the other persons mentioned in the Proclamation, until ordered released by him, the President has by the tenor of such order virtually suspended the Privilege. Relatedly, as pointed out by the Solicitor General no less than petitioner Diokno himself postulated in a lecture at the U.P. Law Center that:jgc:chanrobles.com.ph

"There are only, as far as I know, two instances where persons may be detained without warrant but with due process. The first is in cases of martial law or when the writ of habeas corpusis suspended. In those cases, it is not that their detention is legal, it is that we cannot inquire into the legality of their detention. Because martial law means actually the suspension of law and the substitution of the will of our Congress. The second instance is that which is provided for in Rule 113, section 6 of the Rules of Court and Section 37 of the Revised Charter of the City of Manila. Essentially it consists of cases where the crime is committed right in the presence of the person who is making the arrest or detention." (Trial Problems in City & Municipal Courts, 1970, p. 267, U. P. Law Center Judicial Conference Series.)

In his well documented and very carefully prepared and comprehensive thesis on Martial Law, Nature, Principles and Administration, published by Central Law book Publishing Co., Inc. in 1972, Justice Guillermo S. Santos of the Court of Appeals and formerly of the Judge Advocate General’s Service, Armed Forces of the Philippines, makes these pointed observations:jgc:chanrobles.com.ph

"Whether the existence of martial law and the suspension of the privilege of the writ of habeas corpus‘are one and the same thing’, or ‘the former includes the latter and much more,’ had been the subject of ‘an angry war of pamphlets between Professors Parsons and Parker of the Harvard Law School at the outbreak of the Civil War.’ (Fairman, p. 43; Wiener, p. 9.) It has also been a difficult question to decide in some jurisdictions whether the suspension of the privilege of the writ amounted to a declaration of martial law. (Winthrop, pp. 820 & 828, citing Ex parte Field, 9 Am. L.R. 507; Bouvier’s Law Dictionary, 3rd Francis Rawis Ed., 1914, p. 2105, citing 1 Halleck, Int. Law 549.

"In the face of the constitutional provisions (Art. III, Sec. 1, Clause (’4) and f.n 9, supra.) in our jurisdiction, there seems to be no room for doubt that the two are different. While the grounds for the suspension of the privilege of the writ and the proclamation of martial law are the same, there can be no question that suspension of the writ means what it says, that during the suspension of the privilege, the writ, if issued, will be to no avail; but martial law has more than just this effect. The only question which apparently remains to be determined here, is, whether the declaration of martial law ipso facto carries with it the suspension of the privilege of the writ, or whether a declaration of martial law must necessarily include a declaration suspending the privilege of the writ in order to consider the same inoperative. But it appears that the former is the better view, (Malcolm and Laurel, Philippine Constitutional Law, p. 310) although in the United States it has been held that qualified martial rule may exist where the writ has, in legal contemplation, not been suspended, (Fairman, p. 44) and that the status of martial law does not of itself suspend the writ. (Military Law [Domestic Disturbances], Basic Field Manual, War Department, [US] f.n. 19 & 15, p. 17 [1945].)" (See pp. 41-42.)

Of course, We are not bound by the rule in other jurisdictions.

Former Dean Vicente G. Sinco of the College of Law of the University of the Philippines, of which he became later on President, a noted authority on constitutional law from whom many of us have learned the subject, likewise sustains the view that the proclamation of martial law automatically suspends the privilege of the writ of habeas corpus. (V. Sinco, Phil. Political Law, p. 259, 11th Ed., 1962)

Now, as to the constitutional propriety of detaining persons on suspicion of conspiracy with the enemy without the need of the regular judicial process, We have also the authoritative support of no less than what a distinguished member of this Court, considered as one of the best informed in American constitutional law, Mr. Justice Enrique Fernando, and the principal counsel of petitioners, former Senator Tañada, himself an authority, on the subject, had to say on the point in their joint authorship, used as textbook in many law schools, entitled Constitution of the Philippines, to wit:jgc:chanrobles.com.ph

"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 arrests are made in good faith and in the honest belief they are needed to maintain order, the President, as Commander-in-Chief, cannot thereafter, when 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 individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process." (Emphasis supplied) (Constitution of the Philippines by Tañada & Fernando, Vol. 2, pp. 523-525.)

The authority cited by Justice Fernando and Senator Tañada says:jgc:chanrobles.com.ph

"The plaintiff’s position, stated in a few words, is that the action of the governor, sanctioned to the extent that it was by the decision of the supreme court, was the action of the state and therefore within the 14th Amendment; but that, if that action was unconstitutional, the governor got no protection from personal liability for his unconstitutional interference with the plaintiff’s rights. It is admitted, as it most be, that the governor’s declaration that a state of insurrection existed is conclusive of that fact. It seems to be admitted also that the arrest alone would not necessarily have given a right to bring this suit. Luther v. Borden, 7 How. 1, 45, 46, 12 L. ed. 581, 600, 601. But it is said that a detention for so many days, alleged to be without probable cause, at a time when the courts were open, without an attempt to bring the plaintiff before them, makes a case on which he has a right to have a jury pass.

"We shall not consider all of the questions that the facts suggest, but shall confine ourselves to stating what we regard as a sufficient answer to the complaint, without implying that there are not others equally good. Of course, the plaintiff’s position is that he has been deprived of his liberty without doe process of law. But it is familiar that what is due process of law depends on circumstances. It varies with the subject-matter and the necessities of the situation. Thus, summary proceedings suffice for taxes, and executive decisions for exclusion from the county. Den ex dem. Murray v. Hoboken Land & Improv. Co. 18 How. 272, 15 L. ed. 372; United States v. Ju Toy, 198 U.S. 253, 263, 49 L. ed. 1040, 1044, 25 Sup. Ct. Rep. 644. What, then, are the circumstances of this case? By agreement the record of the proceedings upon habeas corpuswas made part of the complaint, but that did not make the averments of the petition for the writ averments of the complaint. The facts that we are to assume are that a state of insurrection existed and that the governor, without sufficient reason; but in good faith, in the course of putting the insurrection down, held the plaintiff until he thought that he safely could release him.

"It would seem to be admitted by the plaintiff that he was president of the Western Federation of Miners, and that, whoever was to blame, trouble was apprehended with the members of that organization. We mention these facts not as material, but simply to put in more definite form the nature of the occasion on which the governor felt called upon to act. In such a situation we must assume that he had a right, under the state Constitution and laws, to call out troops, as was held by the supreme court of the state. The Constitution is supplemented by an act providing that ‘when an invasion of or insurrection in the state is made or threatened, the governor shall order the national guard to repel or suppress the same.’ Laws of 1897, chap. 63, art. 7, & 2, p. 204. That means that he shall make the ordinary use of the soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power. So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the governor is the final judge and cannot be subjected to an action after he is out of office, on the ground that he had not reasonable ground for his belief. If we suppose a governor with a very long term of office, it may be that a case could be imagined in which the length of the imprisonment would raise a different question. But there is nothing in the duration of the plaintiff’s detention or in the allegations of the complaint that would warrant submitting the judgment of the governor to revision by a jury. It is not alleged that his judgment was not honest, if that be material, or that the plaintiff was detained after fears of the insurrection were at an end.

No doubt there are cases where the expert on the spot may be called upon to justify his conduct later in court, notwithstanding the fact that he had sole command at the time and acted to the best of his knowledge. That is the position of the captain of a ship. But, even in that case, great weight is given to his determination, and the matter is to be judged on the facts as they appeared then, and not merely in the light of the event. Lawrence v. Minturn, 17 How. 100, 110, 15 L. ed. 58, 62; The Star of Hope, 9 Wall. 203, 19 L. ed. 638; The Germanic (Oceanic Steam Nav. Co. v. Aitken) 196 U.S. 589, 594, 595, 49 L. ed. 610, 613, 25 Sup. Ct. Rep. 317. When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328." (Moyer v. Peabody, 212 U.S. 416, 417.)

Relatedly, in the decision of the Supreme Court of Colorado dealing with the same detention of Charles H. Moyer by order of the state governor, it was held:jgc:chanrobles.com.ph

"By the reply it is alleged that, notwithstanding the proclamation and determination of the Governor that a state of insurrection existed in the county of San Miguel, that as a matter of fact these conditions did not exist at the time of such proclamation or the arrest of the petitioner, or at any other time. By S 5, art. 4, of our Constitution, the governor is the commander in chief of the military forces of the state, except when they are called into actual service of the United States; and he is thereby empowered to call out the militia to suppress insurrection. It must therefore become his duty to determine as a fact when conditions exist in a given locality which demand that, in the discharge of his duties as chief executive of the state, he shall employ the militia to suppress. This being true, the recitals in the proclamation to the effect that a state of insurrection existed in the country of San Miguel cannot be controverted. Otherwise, the legality of the orders of the executive would not depend upon his judgment, but the judgment of another coordinate branch of the state government . . .



". . . If then, the military may resort to the extreme of taking human life in order to suppress insurrection, it is impossible to imagine upon what hypothesis it can be successfully claimed that the milder means of seizing the persons of those participating in the insurrection or aiding and abetting it may not be resorted to. This is but a lawful means to the end to be accomplished. The power and authority of the militia in such circumstances are not unlike that of the police of a city, or the sheriff of a county, aided by his deputies or possee comitatus in suppressing a riot. Certainly such officials would be justified in arresting the rioters and placing them in jail without warrant, and detaining them there until the riot was suppressed. Hallett, J., in Re Application of Sherman Parker (no opinion for publication). If as contended by counsel for petitioner, the military, as soon as a rioter or insurrectionist is arrested must turn him over to the civil authorities of the county, the arrest might, and in many instances, would, amount to a mere farce. He could be released on bail, and left free to again join the rioters or engage in aiding and abetting their action, and, if again arrested, the same process would have to be repeated, and thus the action of the military would be rendered a nullity. Again, if it be conceded that, on the arrest of a rioter by the military, he must at once be turned over to the custody of the civil officers of the county, then the military, in seizing armed insurrectionists and depriving them of their arms, would be required to forthwith return them to the hands of those who were employing them in acts of violence; or be subject to an action of replevin for their recovery, whereby immediate possession of such arms would be obtained by the rioters, who would thus again be equipped to continue their lawless conduct. To deny the right of the militia to detain those whom they arrest while engaged in suppressing acts of violence and until order is restored would lead to the most absurd results. The arrest and detention of an insurrectionist, either actually engaged in acts of violence or in aiding and abetting others to commit such acts, violates none of his constitutional rights. He is not tried by any military court, or denied the right of trial by jury; neither is he punished for violation of the law, nor held without due process of law. His arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a continuation of the conditions which the governor in the discharge of his official duties and in the exercise of authority conferred by law is endeavoring to suppress. When this end is reached, he could no longer be restrained of his liberty by the military, but must be, just as respondents have indicated in their return to the writ, turned over to the usual civil authorities of the county, to be dealt with in the ordinary course of justice, and tried for such offenses against the law as he may have committed. It is true that petitioner is not held by virtue of any warrant, but if his arrest and detention are authorized by law, he cannot complain because those steps have not been taken which are ordinarily required before a citizen can be arrested and detained.



". . . The same power which determines the existence of an insurrection must also decide when the insurrection has been suppressed." (Emphasis added.) (Re Moyer, 35 Colo, 159, 85 Pac. 190 [1904].)

It is evident, therefore, that regardless of whether or not the privilege of the writ of habeas corpusis expressly suspended during martial law, arrest, detention and other restraints of liberty of individuals may not be assailed as violative of the due process clause. The Presidential orders to such effect constitute substantive and procedural due process at the same time and may therefore be invoked as valid defenses against any remedy or prayer for release. Given the validity of the declaration of martial law, the sole tests of legality of constraints otherwise frowned upon in normal times by the fundamental law are substantial relevance and reasonableness. In the very nature of things, and absent any obvious showing of palpable bad faith, the Executive should enjoy respectful deference in the determination of his grounds. As a rule, the Courts are not supposed to make any inquiry into the matter.

We accordingly hold that, as well demonstrated by the Solicitor General, a proclamation of martial law automatically results in the suspension of the privilege of the writ of habeas corpusand, therefore, the arrest, detention and restraints upon petitioners are authorized by the Constitution. In any event, the Presidential order of arrest and detention constitute due process and is, therefore, a valid defense to any allegation of illegality of the constraints upon petitioners. We further hold that the duration of such constraints may be co-extensive with martial law unless otherwise ordered by the Executive.





All that remains now for resolution is the question of what effect did the approval and ratification of the New Constitution have upon the instant petitions?

When petitioners came to this Court in September and October 1972 to impugn the legality of their arrest and detention by virtue of Proclamation 1081 and General Order No. 2, their common fundamental theory was that said proclamation and order were violative of the Constitution of the Philippines of 1935, not only because, according to them, there was no justification for its placing the country under martial law but also because, even assuming its propriety, there was allegedly no legal basis for the apprehension and detention of petitioners without any warrant of arrest and without even any charges being filed against them. Thus, in his return of the writ of habeas corpusissued by the Court, as well as in his oral argument at the hearings, the Solicitor General limited himself to barely invoking the provision of the said Constitution empowering the President to proclaim martial law, even as he denied the allegation that there was no factual basis therefor, and simply contended that the arrest and detention of petitioners were made pursuant to orders validly issued under the powers of the President flowing from the proclamation.



As already noted, however, even before these cases could be submitted for decision, on November 30, 1972, the Constitutional Convention of 1971 approved a draft constitution designed to supersede the Constitution of 1935 and on January 17, 1973, thru Proclamation 1102, the President declared that draft constitution to have been ratified by the people in the referendum of January 10-15, 1973, and, as also stated earlier, said proclamation became the subject of two series of cases in this Court which ultimately ended with the decision of March 31, 1973 adjudging that "there is no further judicial obstacle to the New Constitution being considered in force and effect." And among the salient and pertinent provisions of the New Constitution or the Constitution of 1973, as the new charter may distinctively be referred to, is that of Section 3 (2) of Article XVII textually reproduced earlier above.

In view of the comprehensive or all-inclusive tenor of the constitutional injunction contained in said provision, referring as it does to "all proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President", there can be no doubt that Proclamation 1081 and General Order No. 2, herein assailed by petitioners, are among those enjoined to be "part of the law of the land." The question that arises then is, did their having been made part of the law of the land by no less than an express mandate of the fundamental law preclude further controversy as to their validity and efficacy?

In pondering over this question, it is important to bear in mind the circumstances that attended the framing and final approval of the draft constitution by the Convention. As already noted, two actuations of the President of indubitable transcendental import overtook the deliberations of the constituent assembly, namely, the issuance by him of Proclamation 1081 placing the Philippines under martial law and his exercise, under said proclamation, of non-executive powers, inclusive of general legislative authority. As to be expected in a country, like the Philippines, long accustomed to strict constitutionalism, and the superiority of civilian authority over the military, soon enough, these two actuations spawned constitutional controversies of serious dimensions, so much so that several cases involving them, including the instant ones, are now pending in the Supreme Court. Surely, the members of the Convention were well aware of these developments. In other words, the delegates in convention assembled were living witnesses of the manner in which, for the first time in our constitutional history, the martial law clause of the charter was being actually implemented, and they knew the grave constitutional issues such implementation had provoked.

Indeed, no constituent assembly could have been better circumstanced to formulate the fundamental law of the land. The Convention had a full and first-hand view of the controversial operation of the most important part of the charter it was called to improve upon � its martial law clause. Verily, no other aspect of the constitution could have commanded more the most serious attention of the delegates. They knew or ought to have known that the placing of the country or any part thereof under martial law could possibly affect the continued operation therein of the constitution or at least, the enforceability of particular provisions thereof. Therefore, if the Convention felt that what was being done by the President as witnessed by them was not within the contemplation of the existing fundamental law or that it was inconsistent with the underlying principles of democracy and constitutionalism to which the nation has been irrevocably committed since its birth and which were to remain as the foundations of the new charter, the delegates would have considered it to be their bounden duty to our people and to the future generations of Filipinos, to manifest their conviction by providing appropriate safeguards against any repetition thereof in the constitution they were drafting. And so, when it is considered that as finally approved, the New Constitution reproduces in exactly the same terms or verbatim the martial law clause of the 1935 charter, the ineludible conclusion is that our new constitutional fathers did not see anything repugnant to the concepts of the old constitution in what the President has done or was doing. As We see it, this attitude of the Convention constitutes an authoritative contemporary construction of the provision in controversy, and considering that the President’s manner of implementing martial law has been sanctioned by the people not only in the referendum of January 10-15, 1973 but also in that of July 27-28, 1973, reliance on such attitude in determining the meaning and intent of said provision cannot be out of place.

In the light of these considerations, We do not see in the transitory provision under discussion any idea of ratification or validation of something void or unauthorized. Rather, what We perceive in it are revelations of what lay in the core of the martial law clause of the 1935 Constitution as it was conceived and formulated by its wise and farsighted framers. It would be unreasonable, illogical and unworthy of the 1971 delegates to impute to them an intent to merely ratify, confirm or validate the President’s acts, on the assumption that they were originally unauthorized by the charter, for that would imply that they were concerned only about straightening out the present situation, when it is just as important to insure that future acts of the President are not tainted with illegality. We cannot entertain any thought that the delegates were not sufficiently apprised on the implications of their acts. Indeed, the New Constitution has not imparted ex propio vigore any element of validity to the acts in question, it has only expressed in black and white what the Old Constitution did not deem necessary to lay down with precision in respect to them. Viewed this way, what the transitory provision under discussion means is that both the acts of the President before as well as those after ratification of the New Constitution are valid � not validated � and, as just stated, what reenforces this construction and places the said acts beyond possible attacks for unconstitutionality are the results of the two referendums of January and July, 1973.

Withal, having absolute faith in the high sense of duty and the patriotic courage of the members of the Convention, We also reject the suggestion that they were in any way impeded, under the circumstances then obtaining, from freely expressing themselves. We cannot for a moment entertain the thought that any other Filipino can ever have less courage and love of country and concern for the future of our people than the members of this Court who are presently called upon to make momentous decisions affecting no less than the legality and legitimacy of the very Government admittedly in effective control of the whole territory of the nation, regardless of possible personal consequences to themselves.

The fact of the matter is that Proclamation 1081 did not make mention of the Convention at all. On the contrary, judicial notice may be taken of the increased funds appropriated by the President so as to enable it to proceed with its deliberations, unbothered by any apprehension regarding the inadequacy of the funds which the Congress had appropriated for it, and which were then fast dwindling, without any certainty of further congressional appropriations. Indeed, when Delegate Kalaw of the First District of Rizal proposed in a formal resolution that the sessions be suspended until after the lifting of martial law, the assembly voted overwhelmingly to turn down the proposal. There is no evidence at all that any form of undue pressure was brought to bear upon the delegates in any respect related to their constituent functions. It has not been shown that the arrest and detention of a number of delegates, some of whom are petitioners herein, was in any way connected with or caused by their actuations related to their constituent functions. What General Order No. 2 asserts is that the President ordered the "Secretary of National Defense to forthwith arrest or cause the arrest and take into custody the individuals named in the attached list (among them, the said delegates) and to hold them until otherwise so ordered by me or my duly designated representative" for their "being active 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." Even then, said delegates were allowed to cast their votes in the assembly when the final draft was submitted for approval of the members of the Convention. Thus, it can be safely asserted that the freedom of the Convention to act and to perform whatever was incumbent upon it as a constituent body suffered no substantial diminution or constraint on account of the proclamation of martial law.

To reiterate then, Section 3 (2), Article XVII of the New Constitution enjoins that "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 the lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly." Notably, the provision does not only make all such proclamations, orders, decrees, etc. "part of the law of the land", in which case, it would have been perhaps possible to argue, that they had just been accorded the status of legislative enactments, ordinarily subject to possible attack on constitutional grounds. The provision actually goes further. It expressly ordains that the proclamations, orders, etc. referred to should "remain valid, legal, binding, and effective." . . until revoked, modified, repealed or superseded in the manners therein stipulated. What is more, the provision refers to and contemplates not only proclamations, orders, decrees, instructions and acts of executive character, but even those essentially legislative, as may be gathered from the nature of the proclamations, decrees, orders, etc. already existing at the time of the approval of the draft constitution and of the acceptance thereof by the people. Accordingly, and because there is no doubt that Proclamation 1081 and General Order No. 2, herein challenged, are among the proclamations and orders contemplated in said provision, the Court has no alternative but to hold, as it hereby holds, in consonance with the authoritative construction by the Constitutional Convention of the fundamental law of the land, that Proclamation 1081 of President Marcos placing the Philippines under martial law as well as General Order No. 2, pursuant to which petitioners are either in custody or restrained of their freedoms "until otherwise so ordered by (the President) or (his) duly designated representative" are valid, legal, binding and effective, and consequently, the continued detention of petitioner Aquino as well as the constraints on the freedoms of the other petitioners resulting from the conditions under which they were released from custody are legal and constitutional. We feel We are confirmed in this conclusion by the results of the referendum of July 27-28, 1973 in which 18,052,016 voters gave their affirmative approval to the following question:jgc:chanrobles.com.ph

"Under the present constitution the President, if he so desires, can continue in office beyond 1973.

Do you want President Marcos to continue beyond 1973 and finish the reforms he has initiated under Martial Law?"

We hasten to add, to avoid misunderstanding or confusion of concepts, that it is not because of the fiat or force of the New Constitution itself that the transitory provision is being relied upon for the purposes of the instant petitions. At this point, and without prejudice to looking into the matter insofar as other issues and other cases affecting martial law and the orders issued under it are concerned, all that We say is that the said provision constitutes an authoritative contemporary construction of the martial law clause of the Constitution giving light regarding the emergency powers that the Executive may exercise after its proclamation.



But petitioner Diokno 17 would dillute the force of this conclusion by trying to find fault with the dispositive portion of the decision of this Court in the Ratification Cases. He contends that actually, six justices rendered opinions expressly holding that the New Constitution has not been validly ratified in accordance with Article XV of the 1935 Constitution and that the said dispositive portion "is not consistent with their finding, which were also the findings of the majority of the Court." Otherwise stated, the position of petitioner Diokno is that the decision in the Ratification Cases has no binding legal force as regards the question of whether or not the New Constitution is indeed in force and effect. This is practically an attempt to make the Court resolve the same points which counsels for the petitioners in the Ratification Cases submitted to the Court on the last day for the finality of the decision therein, but without asking for either the reconsideration or modification thereof, because they merely wanted to record for posterity their own construction of the judgment of the Court. 18

Without in any way attempting to reopen the issues already resolved by the Court in that decision, but for the sake of erasing any doubt as to the true import of Our judgment therein, and in order that those who would peruse the same may not be led astray by counsel’s misconstruction thereof, the writer feels it is here opportune to say a few words relative to petitioner’s observations, considering specially that Our discussion above is predicated on the premise that the New Constitution is in full force and effect.

To start with, it is evident that the phrase in question saying that "there is no further judicial obstacle to the New Constitution being considered in force and effect" was in actual fact approved specifically by the members of the Court as the juridical result of their variant separate opinions. In fact, even those who dissented, except Justice Zaldivar, accepted by their silence the accuracy of said conclusion. 19 Had any of the other justices, particularly, Chief Justice Makalintal and Justice Castro felt that their joint opinion did not justify such a judgment, they would have certainly objected to its tenor, as Justice Zaldivar did. (See footnote 11). Surely, it is not for anyone to say now that the Court misstated its judgment.

In the particular case of Counsels Tañada and Arroyo, while it is true that on the last day for the finality of that decision, they filed a "Constancia", separately from the Manifestation to the same effect of the other counsel, discussing extensively the alleged inconsistency between the collective result of the opinions of the majority of the Court and the dispositive portion of the judgment, like the other counsel, however, they did not make any prayer for relief, stating that their only purpose is "to save our people from being misled and confused, in order to place things in their proper perspective, and in order to keep faith with the 1935 Constitution . . . so that when history passes judgment upon the real worth and meaning of the historic Resolution of this Honorable Court promulgated on March 31, 1973, it may have all the facts before it," for which reason, the majority of the Court, over the dissent of Justices Zaldivar, Antonio, Esguerra and the writer, did not consider it necessary to act, believing it was not exactly the occasion to disabuse the minds of counsels about the juridical integrity of the Court’s actuation embodied in the resolution. In a sense, therefore, said counsels should be deemed to be in estoppel to raise the same points now as arguments for any affirmative relief, something which they did not ask for when it was more appropriate to do so.

In the second place, laying aside the division of views among the members of the Court on the question of whether or not there has been compliance with the provisions of Article XV of the 1935 Constitution, the vital and decisive fact is that the majority of the Court held that the question of whether or not the New Constitution is already in force and effect is a political question and the Court must perforce defer to the judgment of the political departments of the government or of the people in that respect. In is true some of the Justices could not find sufficient basis for determining whether or not the people have accepted the New Constitution, but, on that point, four Justices, Justices Makasiar, Antonio, Esguerra and the writer, did vote categorically in the affirmative, while two Justices, then Chief Justice Concepcion and Justice Zaldivar, voted in the negative. And in the joint opinion of now Chief Justice Makalintal and Justice Castro, it is crystal clear that the reference therein to their inability to accurately appraise the people’s verdict was merely casual, the thrust of their position being that what is decisive is the President’s own attitude regarding the situation, that is, whether he would take the report of the Katipunan ng mga Barangay to the effect that the people have approved and ratified the New Constitution as definitive and final or he would prefer to submit the new charter to the same kind of election which used to be held for the ratification of constitutional amendments, his decision either way not being subject to judicial inquiry. Stated differently, our distinguished colleagues were of the view that whether or not the New Constitution may be held to have been duly ratified pursuant to Article XV of the 1935 Constitution and even their own negative conclusion in such respect, have no bearing on the issue of the enforceability of the New Constitution on the basis of its having been accepted by the people, and that although they were not possessed of sufficient knowledge to determine this particular fact, the President’s own finding thereon is conclusive upon the Court, since, according to them, such a decision is political and outside the pale of judicial review. To quote their own words:jgc:chanrobles.com.ph

"However, a finding that the ratification of the draft Constitution by the Citizens Assemblies, as certified by the President in Proclamation No. 1102, was not in accordance with the constitutional and statutory procedure laid down for the purpose does not quite resolve the questions raised in these cases. Such a finding, in our opinion, is on a matter which is essentially justiciable, that is, within the power of this Court to inquire into. It imports nothing more than a simple reading and application of the pertinent provisions of the 1935 Constitution, of the Election Code and of other related laws and official acts. No question of wisdom or of policy is involved. But from this finding it does not necessarily follow that this Court may justifiably declare that the Constitution has not become effective, and for that reason give due course to these petitions or grant the writs herein prayed for. The effectivity of the Constitution in the final analysis, is the basic and ultimate question posed by these cases, to resolve which considerations other than judicial, and therefore beyond the competence of this Court, are relevant and unavoidable.



"If indeed it be accepted that the Citizens Assemblies had ratified the 1973 Constitution and that such ratification as well as the establishment of the government thereunder formed part of a revolution, albeit peaceful, then the issue of whether or not that Constitution has become effective and, as a necessary corollary, whether or not the government legitimately functions under it instead of under the 1935 Constitution, is political and therefore non-judicial in nature. Under such a postulate what the people did in the Citizens Assemblies should be taken as an exercise of the ultimate sovereign powers. If they had risen up in arms and by force deposed the then existing government and set up a new government in its place, there could not be the least doubt that their act would be political and not subject to judicial review but only to the judgment of the same body politic act, in the context just set forth, is based on realities. If a new government gains authority and dominance through force, it can be effectively challenged only by a stronger force; no Judicial review is concerned, if no force had been resorted to and the people, in defiance of the existing Constitution but peacefully because of the absence of any appreciable opposition, ordained a new Constitution and succeeded in having the government operate under it. Against such a reality there can be no adequate judicial relief; and so courts forbear to take cognizance of the question but leave it to be decided through political means.



"But then the President, pursuant to such recommendation, did proclaim that the Constitution had been ratified and had come into effect. The more relevant consideration, therefore, as far as we can see, should be as to what the President had in mind in convening the Citizens Assemblies, submitting the Constitution to them and proclaiming that the favorable expression of their views was an act of ratification. In this respect subjective factors, which defy judicial analysis and adjudication, are necessarily involved.

"In positing the problem within an identifiable frame of reference we find no need to consider whether or not the regime established by President Marcos since he declared martial law and under which the new Constitution was submitted to the Citizens Assemblies was a revolutionary one. The pivotal question is rather whether or not the effectivity of the said Constitution by virtue of Presidential Proclamation No. 1102, upon the recommendation of the Katipunan ng mga Barangay, was intended to be definite and irrevocable, regardless of non-compliance with the pertinent constitutional and statutory provisions prescribing the procedure for ratification. We must confess that after considering all the available evidence and all the relevant circumstances we have found no reasonably reliable answer to the question.



"In the light of this seeming ambivalence, the choice of what course of action to pursue belongs to the President. We have earlier made reference to subjective factors on which this Court, to our mind, is in no position to pass judgment. Among them is the President’s own assessment of the will of the people as expressed through the Citizens Assemblies and of the importance of the 1973 Constitution to the successful implementation of the social and economic reforms he has started or envisioned. If he should decide that there is no turning back, that what the people recommended through the Citizens Assemblies, as they were reported to him, demanded that the action he took pursuant thereto be final and irrevocable, then judicial review is out of the question.

"In articulating our view that the procedure of ratification that was followed was not in accordance with the 1935 Constitution and related statutes, we have discharged our sworn duty as we conceive it to be. The President should now perhaps decide, if he has not already decided, whether adherence to such procedure is weighty enough a consideration, if only to dispel any cloud of doubt that may now and in the future should the nation’s Charter.

"In the deliberation of this Court one of the issues formulated for resolution is whether or not the new Constitution, since its submission to the Citizens Assemblies, has found acceptance among the people, such issue being related to the political question theory propounded by the respondents. We have not tarried on the point at all since we find no reliable basis on which to form a judgment. Under a regime of martial law, with the free expression of opinions through the usual media vehicles restricted, we have no means of known, to the point of judicial certainty, whether the people have accepted the Constitution. In any event, we do not find the issue decisive insofar as our vote in these cases is concerned. To interpret the Constitution � that is judicial. That Constitution should be deemed in effect because of popular acquiescence � that is political, and therefore beyond the domain of judicial review. (JAVELLANA � vs � THE EXECUTIVE SECRETARY � 50 SCRA 161-162; 164; 166-167; 170-171) 20

It only remains for the writer to reiterate here a few considerations already touched in the separate opinions in the Ratification Cases which in his considered view may well be taken into account by those who would read again the judgment of the Court therein.



Having come to the conclusion that the question of whether or not the New Constitution is legally in force and effect is political and outside the domain of judicial review, it was not strange that the Court should simply rule that there should be no further judicial obstacle to the enforcement of the charter, should that be, as it appeared to be, the intent of those actually in authority in the government. It is implicit in the political-question doctrine that the Court’s opinion as to the correctness of the legal postures involved is of no moment, for the simple reason that the remedy against any error therein lies either with the sovereign people at the polls or with the political department concerned in the discharge of its own responsibility under the fundamental law of the land, and not with the Court. Even if it were otherwise desirable, if only for the benefit of those interested in the settlement of the specific legal problem posed, any categorical ruling thereon would transcend the bounds of judicial propriety. For the Court to hold it is without power to decide and in the same breath to actually decide is an intolerable incongruity, hence any pronouncement or holding made under the circumstances could have no more force than an obiter dictum, no matter how rich in erudition and precedential support. Consequently, to say that the New Constitution may be considered by those in authority to be in force and effect because such is the mandate expressed by the people in the form announced by the President is but a proper manner of expressing the Court’s abstention from wresting the power to decide from those in whom such prerogative is constitutionally lodged. This is neither to dodge a constitutional duty nor to refrain from getting involved in a controversy of transcendental implications � it is plain adherence to a principle considered paramount in republican democracies wherein the political-question doctrine is deeply imbedded as an inextricable part of the rule of law. It is an unpardonable misconception of the doctrine for anyone to believe that for the Supreme Court to bow to the perceptible or audible voice of the sovereign people in appropriate instances is in any sense a departure from or a disregard of law as applied to political situations, for the very rule that enjoins judicial interference in political questions is no less a legal principle than any other that can be conceived. Indeed, just as, in law, judicial decisions rendered within the ambit of the courts’ authority deserve the respect of the people, by the same token, the people’s verdict on what inherently is theirs to decide must be accorded due deference by the judiciary. Otherwise, judges would be more powerful than the people by whom they have been given no more prerogative than to act solely within the boundaries of the judicial sphere. Withal, a court may err in finding that a given situation calls for its abstention, in the same way it may commit mistakes of judgment about any other matter it decides, still its decision, conceding its honesty, cannot be faulted as an assault on the rule of law. Thus, in a broad sense, it may be said that it is a necessary corollary of the truth that the administration of justice in courts presided by human beings cannot be perfect that even the honest mistake of a judge is law.

The writer further submits that, as pointed out in his separate opinion in the Ratification Cases, those who vehemently insist that the referendum of January 10-15, 1973 was not the kind of election contemplated in Article XV of the 1935 Constitution seem to overlook that the said provision refers only to the mode of ratifying amendments thereto and makes no mention at all of how a new constitution designed to supersede it is to be submitted for approval by the people. Indeed, the writer would readily agree, as was already made clear in the aforementioned opinion, that if what were submitted to the people in the January, 1973 referendum had been merely an amendment or a bundle of amendments to the 1935 Constitution, the results thereof could not constitute a valid ratification thereof. But since it was a whole integral charter that the Citizens’ Assemblies had before them in that referendum, it is evident that the ratification clause invoked cannot be controlling.

That a new constitution is not contemplated is indicated in the text of the provision itself. It says: "Such amendments shall be valid as part of this Constitution when approved by a majority of the votes cast . . ." How can it be ever conceived that the 1973 Constitution which is an entire charter in itself, differing substantially in its entirely and radically in most of its provisions, from the 1935 Constitution be part of the latter? In other words, the mode of ratification prescribed in Article XV is only for amendments that can be made part of the whole constitution, obviously not to an entire charter precisely purported to supersede it.

And it is but logical that a constitution cannot and should not attempt to bind future generations as to how they would do away with it in favor of one suitable to their more recent needs and aspirations. It is true that in Tolentino v. Comelec, 41 SCRA 702, this Court, thru the writer, held that:jgc:chanrobles.com.ph

"In our discussion of the issue of jurisdiction, We have already made it clear that the Convention came into being by a call of a joint session of Congress pursuant to Section 1 of Article XV of the Constitution, already quoted earlier in this opinion. We reiterate also that as to matters not related to its internal operation and the performance of its assigned mission to propose amendments to the Constitution, the Convention and its officers and members are all subject to all the provisions of the existing Constitution. Now, We hold that even as to its latter task of proposing amendments to the Constitution, it is subject to the provisions of Section 1 of Article XV. This must be so, because it is plain to Us that the framers of the Constitution took care that the process of amending the same should not be undertaken with the same case and facility in changing an ordinary legislation. Constitution making is the most valued power, second to none, of the people in a constitutional democracy such as the one our founding fathers have chosen for this nation, and which we of the succeeding generations generally cherish. And because the Constitution affects the lives, fortunes, future and every other conceivable aspect of the lives of all the people within the country and those subject to its sovereignty, every degree of care is taken in preparing and drafting it. A constitution worthy of the people for which it is intended must not be prepared in haste without adequate deliberation and study. It is obvious that correspondingly, any amendment of the Constitution itself, and perforce must be conceived and prepared with as much care and deliberation. From the very nature of things, the drafters of an original constitution, as already observed earlier, operate without any limitations, restraints or inhibitions save those that they may impose upon themselves. This is not necessarily true of subsequent conventions called to amend the original constitution. Generally, the framers of the latter see to it that their handiwork is not lightly treated and as easily mutilated or changed, not only for reasons purely personal but more importantly, because written constitutions are supposed to be designed so as to last for some time, if not for ages, or for, at least, so long as they can be adopted to the needs and exigencies of the people, hence, they must be insulated against precipitate and hasty actions motivated by more or less passing political moods or fancies. Thus, as a rule, the original constitutions carry with them limitations and conditions, more or less stringent, made so by the people themselves, in regard to the process of their amendment. And when such limitations or conditions are so incorporated in the original constitution, it does not lie in the delegates of any subsequent convention to claim that they may ignore and disregard such conditions because they are as powerful and omnipotent as their original counterparts." (At page 724-726)

But this passage should not be understood, as it was not meant to be understood, to refer to the people’s inalienable right to cast aside the whole constitution itself when they find it to be in their best interests to do so. It was so indicated already in the resolution denying the motion for reconsideration:jgc:chanrobles.com.ph

"This is not to say that the people may not, in the exercise of their inherent revolutionary powers, amend the Constitution or promulgate an entirely new one otherwise, but as long as any amendment is formulated and submitted under the aegis of the present Charter, any proposal for such amendment which is not in conformity with the letter, spirit and intent of the provision of the Charter for effecting amendments cannot receive the sanction of this Court." (Resolution of Motion for Reconsideration, Tolentino v. Comelec, G. R. No. L-34150, February 4, 1971)

For it is rather absurd to think that in approving a new fundamental law with which they would replace the existing one, they have to adhere to the mandates of the latter, under pain of getting stuck with it, should they fall. One can easily visualize how the evil forces which dominated the electoral process during the old society would have gone into play in order to stifle the urge for change, had the mode of ratification in the manner of past plebiscites been the one observed in the submission of the New Constitution. To reiterate what the writer said in the Ratification Cases:jgc:chanrobles.com.ph

"Consider that in the present case what is involved is not just an amendment of a particular provision of an existing Constitution; here, it is, as I have discussed earlier above, an entirely new Constitution that is being proposed. This important circumstance makes a great deal of difference.

No less than counsel Tolentino for herein respondents Puyat and Boy, who was himself the petitioner in the case I have just referred to is, now inviting Our attention to the exact language of Article XV and suggesting that the said Article may be strictly applied to proposed amendments but may hardly govern the ratification of a new Constitution. It is particularly stressed that the Article specifically refers to nothing else but "amendments to this Constitution" which if ratified "shall be valid as part of this Constitution." Indeed, how can a whole new Constitution be by any manner of reasoning an amendment to any other constitution and how can it, if ratified, form part of such other constitution? . . .

"It is not strange at all to think that the amending clause of a constitution should be confined in its application only to proposed changes in any part of the same constitution itself, for the very fact that a new constitution is being adopted implies a general intent to put aside the whole of the old one, and what would be really incongrous is the idea that in such an eventuality, the new Constitution would subject its going into effect any provision of the constitution it is to supersede, to use the language precisely of Section 6, Article XVII, the effectivity clause, of the New Constitution. My understanding is that generally, constitutions are self-born, they very rarely, if at all, come into being, by virtue of any provision of another constitution. This must be the reason why every constitution has its own effectivity clause, so that if, the Constitutional Convention had only anticipated the idea of the referendum and provided for such a method to be used in the ratification of the New Constitution, I would have had serious doubts as to whether Article XV could have had priority of application." (Javellana -vs- The Executive Secretary - 50 SCRA 197-198).

Since in the withdrawal motion of petitioner Diokno, the whole trust of his posture relative to the alleged non-enforceability of the Constitution of 1973 revolves around supposed non-compliance in its ratification, with Article XV of the 1935 Charter, and inasmuch as it is evident that the letter and intent of that invoked provision do not warrant, as has just been explained, the application thereof to the New Constitution, for the simple reason that the same is not in fact and in law as well as in form and in intent a mere amendment to the Old Constitution, but an integrally new charter which cannot conceivably be made just a part thereof, one cannot but view said motion to withdraw as having been designed for no other purpose than to serve as a vehicle for the ventilation of petitioner’s political rather than legal outlook which deserves scant consideration in the determination of the merits of the cases at bar.

In any event, that a constitution need not be ratified in the manner prescribed by its predecessor and that the possible invalidity of the mode of its ratification does not affect its enforceability, as long as the fact of its approval by the people or their acquiescence thereto is reasonably shown, is amply demonstrated in the scholarly dissertation made by our learned colleague, Mr. Justice Felix V. Makasiar, in his separate opinion in the Ratification Cases, which carried the concurrence of Justices Antonio, Esguerra and the writer. And that what took place in the Philippines in January, 1973 is not an unprecedented practice peculiar to our country, is likewise plainly shown therein, since it appears that no less than the Constitution of the United States of America, the nation whose close adherence to Constitutionalism petitioners would want the Filipinos to emulate, was also ratified in a way not in conformity with the Articles of Confederation and Perpetual Union, the Constitution which it replaced, and the reason for it was only because those in authority felt that it was impossible to secure ratification, if the amendment clause of the Articles were to be observed, and so they resorted to extra-constitutional means to accomplish their purpose of having a new constitution. Following is the pertinent portion of Mr. Justice Makasiar’s illuminating disquisition based on actual historical facts rather than on theoretical and philosophical hypotheses on which petitioners would seem to rely:jgc:chanrobles.com.ph

"The classic example of an illegal submission that did not impair the validity of the ratification or adoption of a new Constitution is the case of the Federal Constitution of the United States. It should be recalled that the thirteen (13) original states of the American Union � which succeeded in liberating themselves from England after the revolution which began on April 19, 1775 with the skirmish at Lexington, Massachusetts and ended with the surrender of General Cornwallis at Yorktown, Virginia, on October 19, 1781 (Encyclopedia Brit., Vol. 1, 1933 Ed., p. 776) � adopted their Articles of Confederation and Perpetual Union, that was written from 1776 to 1777 and ratified on March 1, 1781 (Encyclopedia Brit., Vol. II, 1966 Ed., p. 525). About six years thereafter, the Congress of the Confederation passed a resolution on February 21, 1787 calling for a Federal Constitutional Convention "for the sole and express purpose of revising the articles of confederation . . .’ (Appendix I, The Federalist, Modern Library ed., p. 577, italics supplied).

"The Convention convened at Philadelphia on May 14, 1787. Article XIII of the Articles of Confederation and Perpetual Union stated specifically:chanrob1es virtual 1aw library

‘The articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state.’ (See the Federalist, Appendix II, Modern Library Ed., 1937, p. 584; Emphasis supplied).

But the foregoing requirements prescribed by the Articles of Confederation and Perpetual Union for the alteration and for the ratification of the Federal Constitution as drafted by the Philadelphia Convention were not followed. Fearful that the said Federal Constitution would not be ratified by the state legislatures as prescribed, the Philadelphia Convention adopted a resolution requesting the Congress of the Confederation to pass a resolution providing that the Federal Constitution should be submitted to elected state conventions and if ratified by the conventions in nine (9) states, not necessarily in all thirteen (13) states, the said Constitution shall take effect.

Thus, history Professor Edward Earle Mead of Princeton University recorded that:chanrob1es virtual 1aw library

‘It would have a counsel of perfection to consign the new Constitution to the tender mercies of the legislatures of each and all of the 13 states. Experience clearly indicated that ratification would have had the same chance as the scriptural camel passing thru the eye of a needle. It was therefore determined to recommend to Congress that the new Constitution be submitted to conventions in the several states specially elected to pass it and when it should be ratified by nine of the thirteen states . . .’ (The Federalist, Modern Library Ed., 1937, Introduction by Edward Earle Mead, pp. viii-ix, Emphasis supplied).

Historian Samuel Eliot Morison similarly recounted:chanrob1es virtual 1aw library

‘The Convention, anticipating that the influence of many state politicians would he Antifederalist, provided for ratification of the Constitution by popularly elected conventions in each state. Suspecting that Rhode Island, at least, would prove recalcitrant, it declared that the Constitution would go into effect as soon as nine states ratified. The convention method had the further advantage that judges, ministers, and others ineligible to state legislatures, could be elected to a convention. The nine-state provision was, of course, mildly revolutionary. But the Congress of the Confederation, still sitting in New York to carry on federal government until relieved, formally submitted the new constitution to the states and politely faded out before the first presidential inauguration.’ (The Oxford History of the Am. People by Samuel Eliot Morison, 1965 ed., p. 312).

And so the American Constitution was ratified by nine (9) states on June 21, 1788 and by the last four states on May 29, 1790 (12 C. J. p. 679 footnote, 16 C.J.S. 27 � by the state conventions and not by all thirteen (13) state legislatures as required by Article XIII of the Articles of Confederation and Perpetual Union aforeoquoted � and in spite of the fact that the Federal Constitution as originally adopted suffers from two basic infirmities, namely the absence of a bill of rights and of a provision affirming the power of judicial review.

The liberties of the American people were guaranteed by the subsequent amendments to the Federal Constitution. The doctrine of judicial review has become part of American constitutional law only by virtue of a judicial pronouncement by Chief Justice Marshall in the case of Marbury v. Madison (1803, 1 Branch 137).

Until this date, no challenge has been launched against the validity of the ratification of the American Constitution, nor against the legitimacy of the government organized and functioning thereunder.

In the 1946 case of Wheeler v. Board of Trustees (37 SE 2nd 322, 326-330), which enunciated the principle that the validity of a new or revised Constitution does not depend on the method of its submission or ratification by the people, but on the fact of fiat or approval or adoption or acquiescence by the people, which fact of ratification or adoption or acquiescence is all that is essential, the Court cited precisely the case of the irregular revision and ratification by state conventions of the Federal Constitution, thus:chanrob1es virtual 1aw library

‘No case identical in its facts with the case now under consideration has been called to our attention, and we have found none, We think that the principle which we apply in the instant case was very clearly applied in the creation of the constitution of the United States. The convention created by a resolution of Congress had authority to do one thing, and one only, to wit, amend the articles of confederation. This they did not do, but submitted to the sovereign power, the people, a new constitution. In this manner was the constitution of the United States submitted to the people and it became operative as the organic law of this nation when it had been properly adopted by the people.

‘Pomeroy’s Constitutional Law, p. 55, discussing the convention that formulated the constitution of the United States, has this to say: The convention proceeded to do, and did accomplish, what they were not authorized to do by a resolution of Congress that called them together. That resolution plainly contemplated amendments to the articles of confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the state legislatures, in the manner pointed out by the existing organic law. But the convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached by such tentative means. They saw the system they were called to improve must be totally abandoned, and that the national idea must be re-established at the center of their political society. It was objected by some members, that they had no power, no authority, to construct a new government. They had no authority, if their decisions were to be final; and no authority whatever, under the articles of confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction, than a constitution drafted by Mr. Hamilton in his office, would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen.’

‘. . . When the people adopt a completely revised or new constitution, the framing or submission of the instrument is not what gives it binding force and effect. The fiat of the people, and only the fiat of the people, can breathe life into a constitution.

‘. . . We do not hesitate to say that a court is never justified in placing by implication a limitation upon the sovereign. This would be an authorized exercise of sovereign power by the court. (In State v. Swift, 69 Ind. 505, 519, the Indiana Supreme Court said: ‘The people of a State may form an original constitution, or abrogate an old one and form a new one, at any time, without any political restriction except the constitution of the United States; . . .’ (37 SE 327-328, 329, italics supplied.)

In the 1903 case of Weston v. Ryan, the Court held:chanrob1es virtual 1aw library

‘It remains to be said that if we felt at liberty to pass upon this question, and were compelled to hold that the act of February 23, 1887, is unconstitutional and void, it would not, in our opinion, by any means follow that the amendment is not a part of our state Constitution. In the recent case of Taylor v. Commonwealth (Va.) 44 S.E. 754, the Supreme Court of Virginia hold that their state Constitution of 1902, having been acknowledged and accepted by the officers administering the state government, and by the people, and being in force without opposition, must be regarded as an existing Constitution, irrespective of the question as to whether or not the convention which promulgated it had authority so to do without submitting it to a vote of the people. In Brittle v. People, 2 Neb. 198, is a similar holding as to certain provisions of the Nebraska Constitution of 1886, which were added by the Legislature at the requirement of Congress, though never submitted to the people for their approval.’ (97 NW 349-350; Emphasis supplied).

Against the decision in the Wheeler case, supra., confirming the validity of the ratification and adoption of the American Constitution, in spite of the fact that such ratification was a clear violation of the prescription on alteration and ratification of the Articles of Confederation and Perpetual Union, petitioners in G. R. No. L-36165 dismissed this most significant historical fact by calling the Federal Constitution of the United States as a revolutionary one, invoking the opinion expressed in Vol. 16, Corpus Juris Secundum, p. 27, that it was a revolutionary constitution because it did not obey the requirement that the Articles of Confederation and Perpetual Union can be amended only with the consent of all thirteen (13) state legislatures. This opinion does not cite any decided case, but merely refers to the footnotes on the brief historical account of the United States Constitution on p. 679 of Vol. 12, CJS. Petitioners, on p. 18 of their main Notes, refer US to pp. 270-316 of the Oxford History of the American People, 1965 Ed. by Samuel Eliot Morison, who discusses the Articles of Confederation and Perpetual Union in Chapter XVIII captioned ‘Revolutionary Constitution Making, 1775 1781’ (pp. 270-281). In Chapter XX on ‘The Creative Period in Politics, 1785-1788,’ Professor Morison delineates the genersis of the Federal Constitution, but does not refer to it even implicitly as a revolutionary constitution (pp. 297-316). However, the Federal Constitution may be considered revolutionary from the viewpoint of McIver if the term revolution is understood in ‘its WIDER sense to embrace decisive changes in the character of government, even though they do not involve the violent overthrow of an established order, . . .’ (R.M. MacIver, The Web of Government, 1965 ed., p. 203).

It is rather ridiculous to refer to the American Constitution as a revolutionary constitution. The Articles of Confederation and Perpetual Union that was in force from July 12, 1776 to 1788, forged as it was during the war of independence was revolutionary constitution of the thirteen (13) states. In the existing Federal Constitution of the United States which was adopted seven (7) or nine (9) years after the thirteen (13) states won their independence and long after popular support for the government of the Confederation had stabilized was not a product of a revolution. The Federal Constitution was a ‘creation of the brain and purpose of man’ in an era of peace. It can only be considered revolutionary in the sense that it is a radical departure from Its predecessor, the Articles of Confederation and Perpetual Union.

It is equally absurd to affirm that the present Federal Constitution of the United States is not the successor to the Articles of Confederation and Perpetual Union. The fallacy of the statement is so obvious that no further refutation is needed." (50 SCRA 209-215)

Moreover, whether a proposal submitted to the people is just an amendment to an existing constitution within the contemplation of its amendment clause or is a new charter not comprehended by its language may not be determined solely by the simple processes of analysis of and comparison between the contents of one and the other. Very much depends on what the constituent assembly, reflecting its understanding of the desire of the people it represents, actually intends its handiwork to be, as such intent may be deduced from the face of the document itself. For the truth is that whatever changes in form and in substance a constitution may undergo, as long as the same political, social and economic ideologies as before continue to be the motivation behind such changes, the result can never be, in a strict sense, a new constitution at all. Indeed, in such circumstance, any alteration or modification of any provision of a constitution, no matter how extensive, can always be traced as founded on its own bedrock, thereby proving identity. It is therefore the expressed desire of the makers of the charter that is decisive. And that is why the New Constitution has its own effectivity clause which makes no reference howsoever to Article XV of the past charter 21

Now, how the founding fathers of America must have regarded the difference between a constitutional amendment, on the one hand, and a new constitution, on the other, when they found the Articles of Confederation and Perpetual Union no longer adequate for the full development of their nation, as can be deduced from the historical account above, is at least one case in point � they exercised their right to ratify their new fundamental law in the most feasible manner, without regard to any constitutional constraints. And yet, it is the constitution that is reputed to have stood all tests and was, in fact, the model of many national constitutions, including our own of 1935, if it cannot be accurately regarded also as the model of the present one.

With the foregoing considerations in mind, it can be readily seen how pointless it is to contend, as petitioner Diokno does in his motion to withdraw, that what he deems as the failure of the January, 1973 referendum to conform with the requirements of Article XV of the 1935 Constitution detracts from the enforceability of the New Constitution, in the light of the President’s assertion contained in Proclamation 1102 that it has been approved and ratified by the people, coupled with his evident firm and irreversible resolution to consider it to have been, indeed, duly ratified, and in the face of the indisputable fact that the whole government effectively in control of the entire Philippine territory has been operating under it without any visible resistance on the part of any significant sector of the populace. To allude to the filing of the petitions in the Plebiscite and the Ratification Cases and the occasional appearances in some public places of some underground propaganda which, anyway, has not cut any perceptible Impression anywhere, as indicative or evidence of opposition by the people to the New Constitution would be, to use a commonplace but apt expression, to mistake the trees for the forest.

It is thus abundantly clear that the passionate and tenacious raciocination in petitioner Diokno’s withdrawal motion tending to assail the cogency of our opinions and their consistency with the judgment in the Ratification Cases, to the extent of using terms that could signify doubt in the good faith and intellectual integrity of some members of the Court and of trying to embarrass the Court itself before the bar of history, does not in fact have any plausible basis whatsoever.

The instant cases are unique. To Our knowledge never before has any national tribunal of the highest authority been called upon to pass on the validity of a martial law order of the Executive issued in the face of actual or imminent danger of a rebellion � threatening the very existence of the nation. The petitions herein treat of no more than the deprivation of liberty of the petitioners, but in reality what is involved here is the legitimacy of the government itself. No Supreme Court of any other country in the world, We reiterate, has ever been confronted with such a transcendental issue.

This is, therefore, a decision that affects not the petitioners alone, but the whole country and all our people. For this reason, We have endeavored to the best of our ability to look at all the issues from every conceivable point of view. We have gone over all the jurisprudence cited by the parties, the writings of learned and knowledgeable authorities they have quoted and whatever We could avail of by Ourselves. We trust We have not misunderstood any of the contentions of the parties and their able and learned counsels and that We have not overlooked any authority relevant to them. And We must say We perceive no cause to downgrade their love of and loyalty to our common motherland even if differences there are between our convictions as to how to earlier attain the national destiny. Indeed, We have not considered as really persuasive any insinuations of motivations born of political partisanship and personal ambitions.

We do not mean to belittle or depreciate foreign jurisprudence, but We have deliberately refrained from relying on alien opinions, judicial or otherwise, in order to stress that the Filipinos can solve their own problems with their own resources intellectual or otherwise. Anyway, We doubt if there is enough relevant parallelism between occurrences in other countries passed upon by the courts with what is happening here today.

Principally, by this decision, We hold that the power to proclaim martial law is lodged by the Constitution exclusively in the Executive, but the grant of judicial power to the Supreme Court also by the Constitution is plenary and total and, therefore, when it is a matter of judicial notice, because it is commonly known by the general public or is capable of unquestionable demonstration, that any particular declaration of martial law is devoid of any of the constitutionally required bases, the Court has the full authority and it would not hesitate to strike down any such improvident proclamation and to adjudge that the legitimate government continue without the offending Executive, who shall be replaced in accordance with the rules of succession provided in the existing Constitution and laws. In the cases at bar, however, the Court, with the abstention of only one member who has preferred not to emit any opinion on the issue at this time, holds that the President had good and sufficient grounds in issuing Proclamation 1081, whether the same is examined in the light of its own recitals, as some Justices advocate, or of facts of judicial notice together with those undisputed in the record, in the manner the rest of Us have actually tested it. We further hold that in restraining the liberties of petitioners, the President has not overstepped the boundaries fixed by the Constitution.

For doctrinal purposes, it is best to add to all the foregoing that a judicial challenge against the imposition of martial law by the Executive in the midst of the actualities of a real assault against the territorial integrity and life of the nation, inevitably calls for the reconciliation, which We feel We have been able to effectuate here, of two extremes in the allocation of powers under the Constitution � the resort by the Executive to the ultimate weapon with which the fundamental law allows him to defend the state against factual invasion or rebellion threatening the public safety, on the one hand, and the assertion by the Supreme Court of the irreducible plenitude of its judicial authority, on the other. No other conflict of prerogatives of such total dimensions can conceivably arise from the operation of any other two parts of the charter. This decision then could well be sui generis, hence, whatever has been said here would not necessarily govern questions related to adverse claims of authority related to the lower levels of the hierarchy of powers in the Constitution.

We humbly submit this decision to the judgment of all our people, to history and to the generations of Filipinos still unborn, confident that it carries all that We know and all that We are. As We do this, We are fully aware that in this critical stage of our life as a nation, our overriding need is unity. It is Our fervent hope that by this decision, We have duly performed Our constitutionally assigned part in the great effort to reduce if not to eliminate the remaining fundamental causes of internecine strife.

May Divine Providence continue to always keep the Philippines in the right paths of democracy, freedom and justice for all!



WHEREFORE, the petitions in all the above-entitled cases are dismissed. No costs.



The following are my reasons for voting in favor of granting the motion to withdraw:chanrob1es virtual 1aw library

It is elementary that the remedy of habeas corpusexists only against involuntary confinement. The moment, therefore, that after initially questioning the legality of his detention, the petitioner seeks withdrawal of his petition at any stage of the case before judgment, his detention becomes in law automatically, by his own act, voluntary or with his express consent, hence, the reason for further inquiry into the circumstances thereof ceases completely, and the court’s duty to proceed further and render judgment comes to an end. By allowing the withdrawal, no interest of justice would be prejudiced, no juridical harm needing redress could be caused to anyone. Accordingly, the petitioner’s motive for his withdrawal, whether expressed or unarticulated, are absolutely immaterial, albeit, in the case at bar, petitioner himself suggests that, while acceding to his request, the members of the Court may express their views thereon. (Sur-Rejoinder dated May 21, 1974, p. 3).

In the mind of the writer, the grounds alleged by petitioner Diokno and his counsel have an apparent tendency to offend the dignity of the Court and to undermine the respect and faith of the people in its capacity to administer justice. What is worse, they may be false and baseless, as they are emotional and personal. Unless properly explained, they give the impression that movant is impeaching the integrity and good faith of some members of the Court. In the premises, said petitioner and counsel could be required to show cause why they should not be held in contempt of the Court, but there being no formal charge to such effect in the instant proceedings, and in order not to confuse the discussion and resolution of the transcendental issues herein, it is preferable, and the Court has opted, to take up the matter of the possible responsibility for contempt separately, either motu proprio or upon the initiative of whoever may allege to be aggrieved thereby. For the present, it has to be stated, however, that under no circumstances may any party or counsel vent his personal feelings and emotions in any pleading or paper filed with the Court, particularly while his case is pending therein. Personalities that are directed towards the occupants of the judicial office naturally mar the legal issues before them, correspondingly making more difficult their proper and impartial resolution. Even if the judges concerned are actually, as they are supposed to be, unmoved by them, still there can be no assurance that the litigants and the public in general will be convinced of their absolute impartiality in their subsequent actuations, and to that extent, the interests of justice are bound to suffer. It is but in keeping with the highest traditions of the judiciary that such improprieties are not allowed to pass unnoticed and are dealt with by the court either motu propio or upon corresponding complaint, whether in an independent proceeding or as an incident within the pending case. No court worthy of its position should tolerate them.

But assaults upon the dignity and integrity of the court, are one thing, and the issues of the case at hand are another. Regardless of what the judge thinks is the belief of those concerned about the motivations of the court’s subsequent resolution of the issues, unless he inhibits himself from further acting in the case, circumstances permitting, it is his inescapable duty to render judgment, taking care, of course, that he remains, in fact, objective and impartial. It is, therefore, of no moment, for the purposes of disposing of petitioner Diokno’s motion to withdraw, whether or not the charges levelled by him and his counsel against the Court or any of its members are founded or unfounded and whether or not the same constitute actionable misconduct on their part, as participants in the case before Us and/or as members of the Bar and officers of the Court Any possible action for such probable misconduct has no bearing on the question of whether or not, observing the usual rules and practices, the Court should dismiss his main petition, the alleged illegality of his detention having been duly cured by his voluntary submission thereto.

All these is not to say that I have not given thought to the imperative necessity of resolving the issues of public interest raised in petitioner Diokno’s petition. I can also see that it is important to the Government that he does not escape the legal effects of the decision in these cases. But if these are the main reasons for denying his motion to withdraw, I believe that the Government’s apprehensions are rather unfounded. While I would not say that by his withdrawal, petitioner impliedly admits the correctness of the stand of the Government, what with the avalanche of protests against alleged injustice and supposed legal errors running through his pleadings, I am of the considered view that in law, he cannot correctly pretend that the rulings of the Court in the other cases herein in respect to the issues therein that are common with those of his petition are not binding on him at least by precedential force. And inasmuch. as in the cases not withdrawn, all the issues of public interest raised in his case will have to be resolved, I do not see any purpose in insisting that he should remain a petitioner when he refuses, as a matter of conscience, to await the unfavorable verdict he foresees in his own case, which he himself anticipates will not set him free anyway. Of course, he protests that nothing he can say can convince the Court, and, on the other hand, perhaps, the most technically accurate and palpably just decision the court may fashion will not convince him, but it has to be a strange court that will yield to a litigant’s point of view just because he sincerely feels he is right, whereas it is not unusual for a litigant to pretend not to see the correctness and justice of the court’s judgment unfavorable to his interests.

Endnotes:

---

* 50 SCRA 30.

1. The Court took no action on the prohibition aspect of G. R. No. L-35540 and later of G. R. No. L-35573. Anyway, with the outcome of the habeas corpuspetitions and in the light of the grounds of this decision, it would be academic to prosecute the same further.

2. Petitioner died at ABM Sison Hospital on March 2, 1973 of causes unrelated to his detention.

3. Actually there are only 28 petitioners, as 4 of them appear to have filed double petitions.

4. Excluding Enrique Voltaire Garcia II who, as mentioned earlier, had died.

5. The writer’s reasons in favor of granting the motion to withdraw are discussed in the addendum of this decision. Since the Court as a body has denied said motion, petitioner Diokno’s case has to be resolved on its merits. Accordingly, a discussion of some of the grounds alleged in the said motion which may have a bearing in one way or another with the fundamental issues herein involved is in order. In view, however, of the release of Senator Diokno on September 11, 1974, the Court has decided to dismiss his petition for being moot and academic. But this development does not necessarily render the discussion of his contentions irrelevant because they can also support the cases of the other petitioners, hence it seems better to retain said discussion in this opinion.

6. At best, such a pose could be true only as regards his arrestand detention up to January 17, 1973, but not with respect to his continued detention after the New Constitution became effective.

6* Villavicencio v. Lukban, 39 Phil. 778, at p. 790.

7. It is a matter of contemporary history that in a unanimous decision promulgated on January 8, 1973, in the case of Sergio Osmeña, Jr. v. Ferdinand E. Marcos, the Presidential Electoral Tribunal upheld the election of President Marcos in November, 1969 and dismissed the protest of Osmeña, ruling as follows:jgc:chanrobles.com.ph

"In the light of the foregoing, We are of the opinion and so hold that the result of the revision and appreciation of the ballots in the pilot provinces, congressional districts and cities designated by the Protestant as best exemplifying the rampant terrorism and massive vote-buying, as well as the fraud and other irregularities allegedly committed by the Protestee, has shown, beyond doubt, that the latter had obtained a very substancia plurality and/or majority of votes over the former, regardless of whether We consider that the Protest is limited to the elections in the provinces, congressional districts and cities specified in paragraph VIII of the Protest, or includes, also, the result of the elections in the provinces and municipalities mentioned’ in paragraph VII of the Protest, or even if the average reductions suffered by both parties in said pilot provinces, congressional districts and cities were applied to the entire Philippines; that it is unnecessary, therefore, to continue the present proceedings and revise the ballots cast in the provinces and cities specified in paragraph VIII of the Protest � much less those named in paragraph VII thereof � other than the pilot provinces and congressional districts designated by the Protestant, as abovestated; that neither would it serve any useful purpose to revise the ballots cast in the provinces and cities counter-protested by the Protestee herein; that, in filing his certificate of candidacy for Mayor of Cebu City, in the general elections held in 1971, and, particularly, in assuming said office on January 1, 1972, (as attested to by his oath of office, copy of which is appended to this decision as Annex H) after his proclamation as the candidate elected to said office, the Protestant had abandoned his Protest herein; that the Protestant has failed to make out his case, that the Protestee has obtained the plurality and majority of the votes cast for the office of the President of the Philippines, in the general elections held in 1969; and that, accordingly, he was duly elected to said office in the aforementioned elections and properly proclaimed as such."cralaw virtua1aw library

8. Excluding week-end suspension of sessions.

** See footnote on page 264.

9. Unless expressly stated otherwise, all references to the Constitution in this discussion are to both the 1935 and 1973 charters, since, after all, the pertinent provisions are practically identical in both.

10. See provisions of both the Old and the New Constitution infra, quoted on page 386.

The term Executive is used to have a common reference to the President under the Old Constitution and to the Prime Minister under the new one.

11. Art. III, sec. 1, Old (1935) Constitution; Art. IV, sec. 1, New (1973) Constitution.

12. Art. III, sec. 14. In the New Constitution, the corresponding provision reads as follows:jgc:chanrobles.com.ph

"The privilege of the writ of habeas corpusshall not be suspended except in case of invasion, insurrection, rebellion, or imminent danger thereof, when the public safety requires it." (Art. IV, sec. 15.)

13. Barcelon v. Baker, 5 Phil. 87; Severino v. Governor-General, 16 Phil. 366; Abueva v. Wood, 45 Phil. 612; Alejandrino v. Quezon, 46 Phil. 85; Vera v. Avelino, 77 Phil. 192; Mabanag v. Lopez Vito, 78 Phil. 1; Cabili v. Francisco, 88 Phil. 654; Montenegro v. Castañeda, 31 Phil. 882; Santos v. Yatco, 55 O.G. 8641 (Minute Resolution of Nov. 6, 1959); Osmeña v. Pendatun, Oct. 28, 1960.

14. Duncan v. Kahanamoku and White v. Steer, 327 U.S. 304-358.

15. Aytona v. Castillo, 4 SCRA 1.

16. In the referendum of January 10-15, 1913, the people expressed themselves against the holding of elections and the immediate convening of the legislature. This was virtually reaffirmed in the referendum of July 27-28, 1973.

17. It is interesting to note that the other petitioners have not discussed this issue and do not seemingly join him in his pose.

18. Which may not be surprising, considering that Counsel Tañada of petitioner Diokno who signed the motion to withdraw was one of the leading counsels of the petitioners in the Ratification Cases.

19. In G. R. No. L-36142, Javellana v. Executive Secretary and the other Ratification Cases, the writer, joined by Justices Antonio and Esguerra, was of the view that before allowing the entry of final judgment and despite the absence of any prayer for relief in the Constancia and Manifestation mentioned above, it was best for the Court to correct the representations of counsel regarding the true juridical import of the decision, but the majority were of the opinion that misconstructions by the interested parties of the judgment of the Court cannot alter the effect thereof intended by the Court and evident in its dispositive portion. The writer was afraid that future occasions might arise, as it has happened now, when Our silence may be taken advantage of, even for the sake of propaganda alone. On the other hand, Justice Zaldivar stated that "I find merit in the Constancia’ and manifestation of counsel for the petitioners where they assert that the sentence, ‘This being the vote of the majority, there is no further judicial obstacle to the New Constitution being considered in force and effect’ in the dispositive portion of the resolution is not warranted . . ." and that "This last sentence of the dispositive portion of the resolution should have been deleted."cralaw virtua1aw library

20. The above exposition of the joint opinion is made in order to explain why the rest of the members of the Court (except Justice Zaldivar) evidently felt that the view thus expressed by Chief Justice Makalintal and Justice Castro justified not only the judgment of dismissal but also the statement that "there is no more judicial obstacle to the New Constitution being considered in force and effect."cralaw virtua1aw library

21. Section 16 of Article XVII of the 1973 Constitution provides: "This Constitution shall take effect immediately upon its ratification by a majority of the votes cast in a plebiscite called for the purpose and, except as herein provided, shall supersede the Constitution of nineteen hundred and thirty-five and all amendments thereto." Even this expressed desire of the Convention was disregarded by the people, and it is difficult to see what valid principle there is that can curtail them from exercising their ultimate sovereign authority in the manner they deem best under the circumstances.