CONSTITUTIONAL LAW II NOTES & DOCTRINES 1
SAN BEDA COLLEGE OF LAW - MANILA
CONSTITUTIONAL LAW II NOTES & DOCTRINES
ARTICLE III Bill of Rights
SECTION 15
SUSPENSION OF THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS
LANSANG vs. GARCIA
Pertinent Constitutional Provisions in the case
paragraph (14) of section 1, Article III of our Constitution, reading:
The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion, insurrection, or rebellion, when the public
safety requires it, in any way of which events the same may be
suspended wherever during such period the necessity for such
suspension shall exist.
and paragraph (2), section 10, Article VII of the same instrument,
which provides that:
The President shall be commander-in-chief of all armed forces of the
Philippines, and whenever it becomes necessary, he may call out such
armed forces to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion, insurrection, or
rebellion, or imminent danger thereof when the public safety requires
it, he may suspend the privileges of the writ of habeas corpus, or place
the Philippines or any part thereof under martial law.
The merit of the claim regarding actual insurrection or rebellion
has been rendered moot and academic
In other words, apart from adverting to the existence of
actual conspiracy and of the intent to rise in arms to overthrow the
government, Proclamation No. 889-A asserts that the lawless elements
"are actually engaged in an armed insurrection and rebellion" to
accomplish their purpose.
Two conditions that must concur to exercise the authority to
suspend the privilege of the writ of habeas corpus
two (2) conditions must concur for the valid exercise of the authority
to suspend the privilege to the writ, to wit:
(a) there must be "invasion, insurrection, or rebellion" or —
pursuant to paragraph (2), section 10 of Art. VII of the
Constitution — "imminent danger thereof," and
(b) "public safety" must require the suspension of the privilege.
The Presidential Proclamation under consideration declares that there
has been and there is actually a state of rebellion and
that "public safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the safety of the
people and preserve the authority of the State."
The weight of BARCELON vs. BAKER as a precedent
The weight of Barcelon v. Baker, as a precedent, is diluted by two (2)
factors, namely:
(a) it relied heavily upon Martin v. Mott involving the U.S.
President's power to call out the militia, which — he being
the commander-in-chief of all the armed forces — may be
exercised to suppress or prevent any lawless violence, even
without invasion, insurrection or rebellion, or imminent
danger thereof, and is, accordingly, much broader than his
authority to suspend the privilege of the writ of habeas
corpus, jeopardizing as the latter does individual liberty; and
(b) the privilege had been suspended by the American
Governor-General, whose act, as representative of
the Sovereign, affecting the freedom of its subjects, can
hardly be equated with that of the President of the
Philippines dealing with the freedom of the Filipino
people, in whom sovereignty resides, and from whom all
government authority emanates.
The ruling of MONTENEGRO vs. CASTANEDA
The pertinent ruling in the Montenegro case was based mainly upon
the Barcelon case, and hence, cannot have more weight than the same.
Issue in both Barcelon and Montenegro Cases
Barcelon Case: it did determine whether or not the Chief Executive
had acted in accordance with law.
Montenegro Case: the Court held that petitioner therein had "failed to
overcome the presumption of correctness which the judiciary accords
to acts of the Executive ...." In short, the Court considered the question
whether or not there really was are rebellion, as stated in the
proclamation therein contested.
Court’s power to review from American Jurisprudence
One of the important, if not dominant, factors, in connection therewith,
was intimated in Sterling v. Constantin, in which the Supreme Court
of the United States, speaking through Chief Justice Hughes, declared
that:
JAMES BRYAN SUAREZ DEANG © 2017 (09265563619/jbsdeang.jbd@gmail.com)
.... When there is a substantial showing that the exertion of state
power has overridden private rights secured by that Constitution, the
subject is necessarily one for judicial inquiry in an appropriate
proceeding directed against the individuals charged with the
transgression. To such a case the Federal judicial power extends
(Art. 3, sec. 2) and, so extending, the court has all the authority
appropriate to its exercise. ....
The Court has the power to review factual bases
In our resolution of October 5, 1971, We stated that "a majority of
the Court" had "tentatively arrived at a consensus that it may inquire in
order to satisfy itself of the existence of the factual bases for the
issuance of Presidential Proclamations Nos. 889 and 889-A ... and
thus determine the constitutional sufficiency of such bases in the light
of the requirements of Article III, sec. 1, par. 14, and Article VII, sec.
10, par 2, of the Philippine Constitution...."
Upon further deliberation, the members of the Court are
now unanimous in the conviction that it has the authority to inquire
into the existence of said factual bases in order to determine the
constitutional sufficiency thereof.
The grant of power to suspend the privilege is neither absolute nor
unqualified
Indeed, the grant of power to suspend the privilege is neither absolute
nor unqualified. The authority conferred by the Constitution, both
under the Bill of Rights and under the Executive Department, is limited
and conditional.

The precept in the Bill of Rights establishes a general rule, as well as
an exception thereto.
What is more, it postulates the former in the negative, evidently to
stress its importance, by providing that "(t)he privilege of the writ
of habeas corpus shall not be suspended ...."
Exception to the general rule
It is only by way of exception that it permits the suspension of the
privilege "in cases of invasion, insurrection, or rebellion" — or, under
Art VII of the Constitution, "imminent danger thereof" — "when the
public safety requires it, in any of which events the same may be
suspended wherever during such period the necessity for such
suspension shall exist."
For from being full and plenary, the authority to suspend the privilege
of the writ is thus circumscribed, confined and restricted, not only by
the prescribed setting or the conditions essential to its existence, but,
also, as regards the time when and the place where it may be exercised.
These factors and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the limits of said
power, beyond which it does not exist.
When privilege of the writ of habeas corpus may be suspended
Accordingly, when individual freedom is used to destroy that social
order, by means of force and violence, in defiance of the Rule of Law
— such as by rising publicly and taking arms against the government
to overthrow the same, thereby committing the crime of rebellion —
there emerges a circumstance that may warrant a limited withdrawal
of the aforementioned guarantee or protection, by suspending the
privilege of the writ of habeas corpus, when public safety requires it.
Two facts that may be likened to declaration of war
(a) all Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and
violence are indispensable to the attainment of their main
and ultimate objective, and act in accordance with such
belief, although they may disagree on the means to be used
at a given time and in a particular place; and
(b) there is a New People's Army, other, of course, that the arm
forces of the Republic and antagonistic thereto. Such New
People's Army is per se proof of the existence of a
rebellion, especially considering that its establishment
was announced publicly by the reorganized CPP.
Communist rebellion or insurrection need be a Civil War
Revised Penal Code defining the crime of rebellion:
 which may be limited in its scope to "any part" of the
Philippines
paragraph (14) of section 1, Article III of the Constitution,
 authorizing the suspension of the privilege of the writ
"wherever" — in case of rebellion — "the necessity for such
suspension shall exist."
Magnitude of Rebellion
The magnitude of the rebellion has a bearing on the second condition
essential to the validity of the suspension of the privilege — namely,
that the suspension be required by public safety.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 2
Principle of Separation of Power and Checks and Balances
Under the principle of separation of powers and the system of checks
and balances, the judicial authority to review decisions of
administrative bodies or agencies is much more limited, as regards
findings of fact made in said decisions.
Under the English law, the reviewing court determines
 only whether there is some evidentiary basis for the
contested administrative findings;
 no quantitative examination of the supporting evidence is
undertaken.
 The administrative findings can be interfered with only if
there is no evidence whatsoever in support thereof, and said
finding is, accordingly, arbitrary, capricious and obviously
unauthorized.
Substantial Evidence Rule
This view has been adopted by some American courts. It has, likewise,
been adhered to in a number of Philippine cases. Other cases,
in both jurisdictions, have applied the "substantial evidence" rule,
which has been construed to mean "more than a mere scintilla" or
"relevant evidence as a reasonable mind might accept as adequate
to support a conclusion," even if other minds equally reasonable
might conceivably opine otherwise.
No cogent reason has been submitted to warrant the rejection of such
test. Indeed, the co-equality of coordinate branches of the Government,
under our constitutional system, seems to demand that the test of the
validity of acts of Congress and of those of the Executive be, mutatis
mutandis, fundamentally the same. Hence, counsel for petitioner
Rogelio Arienda admits that the proper standard is not correctness,
but arbitrariness.
JAMES BRYAN SUAREZ DEANG © 2017 (09265563619/jbsdeang.jbd@gmail.com)
Ideology of the Communist Party of the Philippines
1. merely adhere to Lenin's idea of a swift armed uprising;
that it has, also,
2. adopted Ho Chi Minh's terrorist tactics and resorted to the
assassination of uncooperative local official;
3. 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
three courses of action of the President
In case of invasion, insurrection or rebellion or imminent danger
thereof, the President has, under the Constitution, three (3) courses of
action open to him, namely:
1. to call out the armed forces;
2. to suspend the privilege of the writ of habeas corpus; and
3. to place the Philippines or any part thereof under martial law.
He had, already, called out the armed forces, which measure, however,
proved inadequate to attain the desired result. Of the two (2)other
alternatives, the suspension of the privilege is the least harsh.
In view of the foregoing, it does not appear that the President has acted
arbitrary in issuing Proclamation No. 889, as amended, nor that the
same is unconstitutional.

When detention ceases to become executive
Mr. Justice Fernando is of the opinion — in line with the view of Mr.
Justice Tuason, in Nava v. Gatmaitan, to the effect that "... if and when
formal complaint is presented, the court steps in and the executive
steps out. The detention ceases to be an executive and becomes a
judicial concern ..."
Viewpoint of the Court
Despite the humanitarian and libertarian spirit with which this view
had been espoused, the other Members of the Court are unable to
accept it because:
(a) If the proclamation suspending the privilege of the writ
of habeas corpus is valid — and We so hold it to be — and
the detainee is covered by the proclamation, the filing of a
complaint or information against him does not affect the
suspension of said privilege, and, consequently, his release
may not be ordered by Us;
(b) Inasmuch as the filing of a formal complaint or information
does not detract from the validity and efficacy of the
suspension of the privilege, it would be more reasonable to
construe the filing of said formal charges with the court of
first instance as an expression of the President's belief that
there are sufficient evidence to convict the petitioners so
charged and that hey should not be released,
therefore, unless and until said court — after conducting the
corresponding preliminary examination and/or investigation
— shall find that the prosecution has not established the
existence of a probable cause. Otherwise, the Executive
would have released said accused, as were the other
petitioners herein;
(c) From a long-range viewpoint, this interpretation — of the act
of the President in having said formal charges filed — is, We
believe, more beneficial to the detainees than that favored by
Mr. Justice Fernando. His view — particularly the theory
that the detainees should be released immediately, without
bail, even before the completion of said preliminary
examination and/or investigation — would tend to induce
the Executive to refrain from filing formal charges as long
as it may be possible. Manifestly, We should encourage the
early filing of said charges, so that courts of justice could
assume jurisdiction over the detainees and extend to them
effective protection.
Purpose of suspending the privilege of the writ of habeas corpus
What is more, the privilege of the writ was suspended precisely to
authorize the detention of persons believed to be plotting against
the security of the State until the courts can act on their respective
cases.
To require their peremptory release upon the mere filing of charges
against them, without giving the proper court opportunity and time to
decide the question of probable cause, would obviously be to defeat
the very basic purpose of the suspension.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 3
JACKSON vs. MACALINO
Writ of habeas corpus extends to all cases of illegal detention
Section 1, Rule 102 of the Rules of Court, as amended, provides that
except as otherwise expressly provided by law, the writ of habeas
corpus shall extend to all cases of illegal confinement or detention by
which any person is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person entitled thereto.
Ultimate purpose of the writ of habeas corpus
The ultimate purpose of the writ of habeas corpus is to relieve a
person from unlawful restraint.
Writ of habeas corpus is a Writ of inquiry
It is essentially a writ of inquiry and is granted to test the right under
which he is detained.
When the writ is not allowed or discharged authorized
Section 4, Rule 102 of the said Rules provides when the writ
of habeas corpus is not allowed or discharged authorized:
Sec. 4. When writ not allowed or discharged authorized. If it appears
that the person alleged to be restrained of his liberty is in the custody
of an officer under process issued by a court or judge or by virtue of a
judgment or order of a court of record, and that the court or judge had
jurisdiction to issue the process, render the judgment; or make the
order, the writ shall not be allowed; or if the jurisdiction appears after
the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall
anything in this rule be held to authorize the discharge of a person
charged with or convicted of an offense in the Philippines, or of a
person suffering imprisonment under lawful judgment.
Court includes quasi-judicial bodies
JAMES BRYAN SUAREZ DEANG © 2017 (09265563619/jbsdeang.jbd@gmail.com)
The term court includes quasi-judicial bodies like the Deportation
Board of the Bureau of Immigration.
Supervening events may bar release or discharge
Even if the arrest of a person is illegal, supervening events may bar his
release or discharge from custody.
What is to be inquired into is the legality of his detention as of, at the
earliest, the filing of the application for a writ of habeas corpus, for
even if the detention is at its inception illegal, it may, by reason of same
supervening events such as the instances mentioned in Section 4, Rule
102, be no longer illegal at the time of the filing of the application. Any
such supervening events are the issuance of a judicial process
preventing the discharge of the detained person.
When plea is considered prima facie evidence
Section 13 of Rule 102 of the Rules of Court, as amended, provides
that if it appears that the detained person is in custody under a warrant
of commitment in pursuance of law, the return shall be
considered prima facie evidence of the cause of restraint:
Sec. 13. When the return evidence, and when only a plea. If it appears
that the prisoner is in custody under a warrant of commitment in
pursuance of law, the return shall be considered prima facie evidence
of the cause of restraint; but if he is restrained of his liberty by any
alleged private authority, the return shall be considered only as a plea
of the facts therein set forth, and the party claiming the custody must
prove such facts.

IN RE: THE ISSUANCE OF THE WRIT OF HABEAS CORPUS
FOR DR. AURORA PARONG ET AL. vs. PONCE ENRILE
Arrest is legal in the case at bar
The fundamental issue here, as in all petitioner for the writ of habeas
corpus, is whether or not petitioners' detention is legal. We have
carefully gone over the claims of the parties in their respective
pleadings as well as in the oral argument during the hearing on August
26, 1982, and We find that petitioners have not been illegally deprived
of their constitutional right to liberty, neither in the manner of their
arrest, nor by their continued detention, and that the circumstances
attendant in the herein case do not warrant their release on a writ of
habeas corpus.
Detainees were caught in flagrante delicto
Caught in flagrante delicto, the nine (9) detainees mentioned
scampered towards different directions leaving in top of their
conference table numerous subversive documents, periodicals,
pamphlets, books, correspondence, stationaries, and other papers,
including a plan on how they would infiltrate the youth and student
sector (code-named YORK). Also found were one (1) .38 cal. revolver
with eight (8) live bullets, nineteen (19) rounds of ammunition for M16
armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash
believed to be CPP/NPA funds, assorted medicine packed and ready
for distribution, as sizeable quantity of printing paraphernalia, which
were then seized.
Arrest here need not follow usual procedure
The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of
the existence of probable cause before the issuance of a judicial
warrant of arrest and the granting of bail if the offense is bailable.
Obviously, the absence of a judicial warrant is no legal impediment
to arresting or capturing persons committing overt acts of violence
against government forces, or any other milder acts but equally in
pursuance of the rebellious movement. The arrest or capture is thus
impelled by the exigencies of the situation that involves the very
survival of society and its government and duly constituted authorities.
If killing and other acts of violence against the rebels find justification
in the exigencies of armed hostilities which is of the essence of waging
a rebellion or insurrection, most assuredly so in case of invasion,
merely seizing their persons and detaining them while any of these
contingencies continues cannot be less justified.
"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." 3 What should
be underscored is that if the greater violation against life itself such as
killing, will not be the subject of judicial inquiry, as it cannot be raised
as transgressing against the due process clause that protects life, liberty
and property, lesser violations against liberty, such as arrest and
detention, may not be insisted upon as reviewable by the courts.
Function of the Presidential Commitment Order
The function of the PCO is to validate, on constitutional ground, the
detention of a person for any of the offenses covered by
Proclamation No. 2045 which continues in force the suspension of the
privilege of the writ of habeas corpus, if the arrest has been made
initially without any warrant, its legal effect is to render the writ
unavailing as a means of judicially inquiring into the legality of the
detention in view of the suspension of the privilege of the writ.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 4
The grant of the power to suspend the said privilege provides the basis
for continuing with perfect legality the detention as long as the
invasion or rebellion has not been repelled or quelled, and the need
therefor in the interest of public safety continues.
Suspension of the privilege is a military measure
The significance of the conferment of this power, constitutionally upon
the President as Commander-in-Chief, is that the exercise thereof is
not subject to judicial inquiry, with a view to determining its legality
in the light of the bill of rights guarantee to individual freedom.
This must be so because the suspension of the privilege is a military
measure the necessity of which the President alone may determine as
an incident of his grave responsibility as the Commander-in-Chief of
the Armed Forces, of protecting not only public safety but the very life
of the State, the government and duly constituted authorities.
This should be clear beyond doubt in the case of "invasion," along
which "rebellion" or "insurrection" is mentioned by the Constitution,
which contingency does not present a legal question on whether there
is a violation of the right to personal liberty when any member of the
invading force is captured and detained.
The Suspension is one such measure that in order to be effective
The suspension of the privilege of the writ of habeas corpus is one such
measure. To be effective, the occasion for its application on specific
individuals should be left to the exclusive and sound judgment of
the President, at least while the exigencies of invasion, rebellion or
insurrection persist, and the public safety requires it, a matter, likewise,
which should be left for the sole determination of the President as
Commander-in-Chief of the Nation's armed forces. The need for a
unified command in such contingencies is imperative-even axiomatic-
as a basic military concept in the art of warfare.
JAMES BRYAN SUAREZ DEANG © 2017 (09265563619/jbsdeang.jbd@gmail.com)
Specific mention of rebellion and insurrection
The specific mention in the Constitution of rebellion and insurrection
along with invasion and imminent danger thereof, shows that the terms
"rebellion and insurrection" are used therein in the sense of a state
or condition of the Nation, not in the concept of a statutory offense.
What, therefore, should determine the legality of imposing what is
commonly referred to as "preventive detention" resulting from the
suspension of the privilege of habeas corpus, is the necessity of its
adoption as a measure to suppress or quell the rebellion, or beat off an
invasion.
The necessity for such measure as a means of defense for national
survival quite clearly transcends in importance and urgency the claim
of those detained to the right to bail to obtain their freedom. To hold
otherwise would defeat the purpose of the constitutional grant of the
power to suspend the privilege of the writ of habeas corpus on the
occasions expressly mentioned in the charter. For what indeed could
the purpose be of suspending the privilege of the writ of habeas corpus
other than to restrict, at least for the duration of the emergency of
invasion or rebellion, the right to personal liberty, dictated as it is, in
the greater interest of public safety and national security.
Cannot claim right to bail and be charged during the period
Now, if captured enemies from the invading force may not be charged
with any statutory offense that would provide the occasion to demand
the right to bail, it is obvious that persons engaged in rebellion or
insurrection may not claim the right to be released on bail when
similarly captured or arrested during the continuance of the aforesaid
contingency.

They may not even claim the right to be charged immediately in
court, as they may rightfully do so, were they being charged with an
ordinary or common offense. This is so because according to legal
writers or publicists, the suspension of the privilege of the writ of
habeas corpus "has the sole effect of allowing the executive to defer
the trials of persons charged with certain offenses during the period of
emergency." This clearly means denial of the right to be released on
bail on being charged in court with bailable offenses.
Suspension of the privilege of the writ of habeas corpus must carry
the suspension of the right to bail
The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the
government's campaign to suppress the rebellion is to be enhanced and
rendered effective.
Reason: If the right to bail may be demanded during the continuance
of the rebellion, and those arrested, captured and detained in the course
thereof will be released, they would, without the least doubt, rejoin
their comrades in the field thereby jeopardizing the success of
government efforts to bring to an end the invasion, rebellion or
insurrection.
. It would, therefore, seem to be ignoring realities in the name of
misplaced magnanimity and compassion, and for the sake of humanity,
to grant the demand for respect of rights supposedly guaranteed by the
Constitution by those who themselves seek to destroy that very same
instrument, trampling over it already as they are still waging war
against the government. This stark actuality gives added force and
substance to the rationale of the suspension of the privilege of the writ
of habeas corpus in case of invasion, insurrection, rebellion, or
imminent danger thereof, when public safety requires it.
In ordinary offense
When a person is charged in court for an ordinary offense, the law
does not authorize the filing of a petition for habeas corpus based
on the ground that there is absolutely no evidence to hold him for trial,
which, in effect, constitutes an allegation of arbitrariness in the filing
of the case against him.
Adequate safeguards against arbitrariness
such as the requirement of determining the existence of a probable
cause by the judge before the issuance of the warrant of arrest.
Probable cause in habeas corpus proceeding
The finding of such probable cause may not be immediately brought
for review by this Court in a habeas corpus proceeding, on the claim
of arbitrariness.
The matter is to be decided on the basis of the evidence, and this Court
is not the proper forum for the review sought, not being a trier of facts.
If such a procedure were allowed, it would be easy to delay and
obstruct the prosecution of an offense by a resort to a petition for
habeas corpus based on arbitrariness, which most accuse, if not all,
would be most inclined, specially when they are out on bail.
The petition now before Us is exactly one of this kind. If granted, the
effect is to transfer the jurisdiction of the trial courts in criminal cases
to this Court, which is simply inconceivable.
Moreover, arbitrariness, while so easy to allege, is hard to prove, in
the face of the formidable obstacle built up by the presumption of
regularity in the performance of official duty. Unexhilaratingly, this is
the revealing experience of this Court in the Lansang case, where it
CONSTITUTIONAL LAW II NOTES & DOCTRINES 5
doubtlessly realized how hardly possible it is to adduce evidence or
proof upon which to show the President having acted with
arbitrariness.
Judicial interference
Judicial interference was thus held as permissible, and the test as laid
down therein is not whether the President acted correctly but whether
he acted arbitrarily. This would seem to be pure semanticism, if We
consider that with particular reference to the nature of the actions the
President would take on the occasion of the grave emergency he has to
deal with, which, as clearly indicated in Section 9, Art. VII of the
Constitution partakes of military measures, the judiciary can, with
becoming modesty, ill afford to assume the authority to check or
reverse or supplant the presidential actions.
On these occasions, the President takes absolute command, for the
very life of the Nation and its government, which, incidentally,
includes the courts, is in grave peril. In so doing, the President is
answerable only to his conscience, the people and to God. For their
part, in giving him the supreme mandate as their President, the people
can only trust and pray that, giving him their own loyalty with utmost
patriotism, the President will not fail them.
Power and the Right to Liberty
For the power is intended as a limitation of the right, in much the same
way as individual freedom yields to the exercise of the police power of
the State in the interest of general welfare.
The difference again is that the power comes into being during extreme
emergencies the exercise of which, for complete effectiveness for the
purpose it was granted should not permit intereference, while
individual freedom is obviously for full enjoyment in time of peace,
but in time of war or grave peril to the nation, should be limited or
JAMES BRYAN SUAREZ DEANG © 2017 (09265563619/jbsdeang.jbd@gmail.com)
restricted. In a true sense then, our Constitution is for both peacetime
and in time of war; it is not that in time of war the Constitution is
silenced.
It, therefore, becomes self-evident that the duty of the judiciary to
protect individual rights must yield to the power of the Executive
to protect the State, for if the State perishes, the Constitution, with
the Bill of Rights that guarantees the right to personal liberty, perishes
with it.
Arbitrariness
Arbitrariness, as a ground for judicial inquiry of presidential acts and
decisions, sounds good in theory but impractical and unrealistic,
considering how well-nigh impossible it is for the courts to contradict
the finding of the President on the existence of the emergency that
gives occasion for the exercise of the power to suspend the privilege
of the writ.
For the Court to insist on reviewing Presidential action on the ground
of arbitrariness may only result in a violent collision of two jealous
powers with tragic consequences, by all means to be avoided, in
favor of adhering to the more desirable and long-tested doctrine of
"political question" in reference to the power of judicial review.