Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE
PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO
B. ALARCIO, FELIPE A. GUICO, JR., BERNARDO M.
ALMONTE, CANUTO RAMIR B. CABRITO, ISIDRO T.
GUICO, FELISA I. LLAMIDO, FAUSTO J. SALVA,
REYNALDO G. ESTRADA, FELISA C. BAUTISTA,
ESMENIA J. CABE, TEODORO B. MADRIAGA,
AUREA J. PRESTOSA, EMERENCIANA J. ISLA,
FELICISIMA C. ARRESTO, CONSUELO M.
MORALES, BENJAMIN R. SEGISMUNDO, CIRILA A.
JOSE & NAPOLEON S. FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN
REFORM, respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO
FERRARIS, DENNIS JEREZA, HERMINIGILDO
GUSTILO, PAULINO D. TOLENTINO and PLANTERS'
COMMITTEE, INC., Victorias Mill District, Victorias,
Negros Occidental, petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and
PRESIDENTIAL AGRARIAN REFORM
COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE
DEPARTMENT OF AGRARIAN REFORM, HON.
JOKER ARROYO, EXECUTIVE SECRETARY OF THE
OFFICE OF THE PRESIDENT, and Messrs.
SALVADOR TALENTO, JAIME ABOGADO,
CONRADO AVANCENA and ROBERTO
TAAY, respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO,
JR., petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian
Reform, and LAND BANK OF THE
PHILIPPINES, respondents.

CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who
blocked and challenged Hercules for his life on his way
to Mycenae after performing his eleventh labor. The two
wrestled mightily and Hercules flung his adversary to the
ground thinking him dead, but Antaeus rose even
stronger to resume their struggle. This happened several
times to Hercules' increasing amazement. Finally, as
they continued grappling, it dawned on Hercules that
Antaeus was the son of Gaea and could never die as
long as any part of his body was touching his Mother
Earth. Thus forewarned, Hercules then held Antaeus up
in the air, beyond the reach of the sustaining soil, and
crushed him to death.
Mother Earth. The sustaining soil. The giver of life,
without whose invigorating touch even the powerful
Antaeus weakened and died.
The cases before us are not as fanciful as the foregoing
tale. But they also tell of the elemental forces of life and
death, of men and women who, like Antaeus need the
sustaining strength of the precious earth to stay alive.
"Land for the Landless" is a slogan that underscores the
acute imbalance in the distribution of this precious
resource among our people. But it is more than a slogan.
Through the brooding centuries, it has become a battle-
cry dramatizing the increasingly urgent demand of the
dispossessed among us for a plot of earth as their place
in the sun.
Recognizing this need, the Constitution in 1935
mandated the policy of social justice to "insure the well-
being and economic security of all the
people," 1 especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that
"the State shall regulate the acquisition, ownership, use,
enjoyment and disposition of private property and
equitably diffuse property ownership and
profits." 2 Significantly, there was also the specific
injunction to "formulate and implement an agrarian
reform program aimed at emancipating the tenant from
the bondage of the soil." 3
The Constitution of 1987 was not to be outdone. Besides
echoing these sentiments, it also adopted one whole and
separate Article XIII on Social Justice and Human
Rights, containing grandiose but undoubtedly sincere
provisions for the uplift of the common people. These
include a call in the following words for the adoption by
the State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an
agrarian reform program founded on the right of
farmers and regular farmworkers, who are
landless, to own directly or collectively the lands
they till or, in the case of other farmworkers, to
receive a just share of the fruits thereof. To this
end, the State shall encourage and undertake
 the just distribution of all agricultural lands,
subject to such priorities and reasonable
retention limits as the Congress may prescribe,
taking into account ecological, developmental, or
equity considerations and subject to the
payment of just compensation. In determining
retention limits, the State shall respect the right
of small landowners. The State shall further
provide incentives for voluntary land-sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the
Agricultural Land Reform Code, had already been
enacted by the Congress of the Philippines on August 8,
1963, in line with the above-stated principles. This was
substantially superseded almost a decade later by P.D.
No. 27, which was promulgated on October 21, 1972,
along with martial law, to provide for the compulsory
acquisition of private lands for distribution among tenant-
farmers and to specify maximum retention limits for
landowners.
The people power revolution of 1986 did not change and
indeed even energized the thrust for agrarian reform.
Thus, on July 17, 1987, President Corazon C. Aquino
issued E.O. No. 228, declaring full land ownership in
favor of the beneficiaries of P.D. No. 27 and providing for
the valuation of still unvalued lands covered by the
decree as well as the manner of their payment. This was
followed on July 22, 1987 by Presidential Proclamation
No. 131, instituting a comprehensive agrarian reform
program (CARP), and E.O. No. 229, providing the
mechanics for its implementation.
Subsequently, with its formal organization, the revived
Congress of the Philippines took over legislative power
from the President and started its own deliberations,
including extensive public hearings, on the improvement
of the interests of farmers. The result, after almost a year
of spirited debate, was the enactment of R.A. No. 6657,
otherwise known as the Comprehensive Agrarian
Reform Law of 1988, which President Aquino signed on
June 10, 1988. This law, while considerably changing
the earlier mentioned enactments, nevertheless gives
them suppletory effect insofar as they are not
inconsistent with its provisions. 4
The above-captioned cases have been consolidated
because they involve common legal questions, including
serious challenges to the constitutionality of the several
measures mentioned above. They will be the subject of
one common discussion and resolution, The different
antecedents of each case will require separate
treatment, however, and will first be explained
hereunder.
G.R. No. 79777
Squarely raised in this petition is the constitutionality of
P.D. No. 27, E.O. Nos. 228 and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare riceland
worked by four tenants and owned by petitioner Nicolas
Manaay and his wife and a 5-hectare riceland worked by
four tenants and owned by petitioner Augustin Hermano,
Jr. The tenants were declared full owners of these lands
by E.O. No. 228 as qualified farmers under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O.
Nos. 228 and 229 on grounds inter alia of separation of
powers, due process, equal protection and the
constitutional limitation that no private property shall be
taken for public use without just compensation.
They contend that President Aquino usurped legislative
power when she promulgated E.O. No. 228. The said
measure is invalid also for violation of Article XIII,
Section 4, of the Constitution, for failure to provide for
retention limits for small landowners. Moreover, it does
not conform to Article VI, Section 25(4) and the other
requisites of a valid appropriation.
In connection with the determination of just
compensation, the petitioners argue that the same may
be made only by a court of justice and not by the
President of the Philippines. They invoke the recent
cases of EPZA v. Dulay 5 andManotok v. National Food
Authority. 6 Moreover, the just compensation
contemplated by the Bill of Rights is payable in money or
in cash and not in the form of bonds or other things of
value.
In considering the rentals as advance payment on the
land, the executive order also deprives the petitioners of
their property rights as protected by due process. The
equal protection clause is also violated because the
order places the burden of solving the agrarian problems
on the owners only of agricultural lands. No similar
obligation is imposed on the owners of other properties.
The petitioners also maintain that in declaring the
beneficiaries under P.D. No. 27 to be the owners of the
lands occupied by them, E.O. No. 228 ignored judicial
prerogatives and so violated due process. Worse, the
measure would not solve the agrarian problem because
even the small farmers are deprived of their lands and
the retention rights guaranteed by the Constitution.
In his Comment, the Solicitor General stresses that P.D.
No. 27 has already been upheld in the earlier cases
ofChavez v. Zobel, 7 Gonzales v. Estrella, 8 and
Association of Rice and Corn Producers of the
Philippines, Inc. v. The National Land Reform
Council. 9 The determination of just compensation by the
executive authorities conformably to the formula
prescribed under the questioned order is at best initial or
prelim inary only. It does not foreclose judicial
intervention whenever sought or warranted. At any rate,
the challenge to the order is premature because no
valuation of their property has as yet been made by the
Department of Agrarian Reform. The petitioners are also
not proper parties because the lands owned by them do
not exceed the maximum retention limit of 7 hectares.
Replying, the petitioners insist they are proper parties
because P.D. No. 27 does not provide for retention limits
on tenanted lands and that in any event their petition is a
class suit brought in behalf of landowners with
landholdings below 24 hectares. They maintain that the
determination of just compensation by the administrative
authorities is a final ascertainment. As for the cases
invoked by the public respondent, the constitutionality of
P.D. No. 27 was merely assumed in Chavez, while what
was decided in Gonzales was the validity of the
imposition of martial law.
In the amended petition dated November 22, 1588, it is
contended that P.D. No. 27, E.O. Nos. 228 and 229
(except Sections 20 and 21) have been impliedly
repealed by R.A. No. 6657. Nevertheless, this statute
should itself also be declared unconstitutional because it
suffers from substantially the same infirmities as the
earlier measures.
A petition for intervention was filed with leave of court on
June 1, 1988 by Vicente Cruz, owner of a 1. 83- hectare
land, who complained that the DAR was insisting on the
implementation of P.D. No. 27 and E.O. No. 228 despite
a compromise agreement he had reached with his
tenant on the payment of rentals. In a subsequent
motion dated April 10, 1989, he adopted the allegations
in the basic amended petition that the above- mentioned
enactments have been impliedly repealed by R.A. No.
6657.
G.R. No. 79310
The petitioners herein are landowners and sugar
planters in the Victorias Mill District, Victorias, Negros
Occidental. Co-petitioner Planters' Committee, Inc. is an
organization composed of 1,400 planter-members. This
petition seeks to prohibit the implementation of Proc. No.
131 and E.O. No. 229.
The petitioners claim that the power to provide for a
Comprehensive Agrarian Reform Program as decreed
by the Constitution belongs to Congress and not the
President. Although they agree that the President could
exercise legislative power until the Congress was
convened, she could do so only to enact emergency
measures during the transition period. At that, even
assuming that the interim legislative power of the
President was properly exercised, Proc. No. 131 and
E.O. No. 229 would still have to be annulled for violating
the constitutional provisions on just compensation, due
process, and equal protection.
They also argue that under Section 2 of Proc. No. 131
which provides:
Agrarian Reform Fund.-There is hereby created a
special fund, to be known as the Agrarian Reform Fund,
an initial amount of FIFTY BILLION PESOS
(P50,000,000,000.00) to cover the estimated cost of the
Comprehensive Agrarian Reform Program from 1987 to
1992 which shall be sourced from the receipts of the
sale of the assets of the Asset Privatization Trust and
Receipts of sale of ill-gotten wealth received through the
Presidential Commission on Good Government and
such other sources as government may deem
appropriate. The amounts collected and accruing to this
special fund shall be considered automatically
appropriated for the purpose authorized in this
Proclamation the amount appropriated is in futuro, not in
esse. The money needed to cover the cost of the
contemplated expropriation has yet to be raised and
cannot be appropriated at this time.
Furthermore, they contend that taking must be
simultaneous with payment of just compensation as it is
traditionally understood, i.e., with money and in full, but
no such payment is contemplated in Section 5 of the
E.O. No. 229. On the contrary, Section 6, thereof
provides that the Land Bank of the Philippines "shall
compensate the landowner in an amount to be
established by the government, which shall be based on
the owner's declaration of current fair market value as
provided in Section 4 hereof, but subject to certain
controls to be defined and promulgated by the
Presidential Agrarian Reform Council." This
compensation may not be paid fully in money but in any
of several modes that may consist of part cash and part
bond, with interest, maturing periodically, or direct
payment in cash or bond as may be mutually agreed
upon by the beneficiary and the landowner or as may be
prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the two
measures, no effort was made to make a careful study of
the sugar planters' situation. There is no tenancy
problem in the sugar areas that can justify the
application of the CARP to them. To the extent that the
sugar planters have been lumped in the same legislation
with other farmers, although they are a separate group
with problems exclusively their own, their right to equal
protection has been violated.
A motion for intervention was filed on August 27,1987 by
the National Federation of Sugarcane Planters (NASP)
which claims a membership of at least 20,000 individual
sugar planters all over the country. On September 10,
1987, another motion for intervention was filed, this time
by Manuel Barcelona, et al., representing coconut and
riceland owners. Both motions were granted by the
Court.
NASP alleges that President Aquino had no authority to
fund the Agrarian Reform Program and that, in any
event, the appropriation is invalid because of uncertainty
in the amount appropriated. Section 2 of Proc. No. 131
and Sections 20 and 21 of E.O. No. 229 provide for an
initial appropriation of fifty billion pesos and thus
specifies the minimum rather than the maximum
authorized amount. This is not allowed. Furthermore, the
stated initial amount has not been certified to by the
National Treasurer as actually available.
Two additional arguments are made by Barcelona, to
wit, the failure to establish by clear and convincing
evidence the necessity for the exercise of the powers of
eminent domain, and the violation of the fundamental
right to own property.
The petitioners also decry the penalty for non-
registration of the lands, which is the expropriation of the
said land for an amount equal to the government
assessor's valuation of the land for tax purposes. On the
other hand, if the landowner declares his own valuation
he is unjustly required to immediately pay the
corresponding taxes on the land, in violation of the
uniformity rule.
In his consolidated Comment, the Solicitor General first
invokes the presumption of constitutionality in favor of
Proc. No. 131 and E.O. No. 229. He also justifies the
necessity for the expropriation as explained in the
"whereas" clauses of the Proclamation and submits that,
contrary to the petitioner's contention, a pilot project to
determine the feasibility of CARP and a general survey
on the people's opinion thereon are not indispensable
prerequisites to its promulgation.
On the alleged violation of the equal protection clause,
the sugar planters have failed to show that they belong
to a different class and should be differently treated. The
Comment also suggests the possibility of Congress first
distributing public agricultural lands and scheduling the
expropriation of private agricultural lands later. From this
viewpoint, the petition for prohibition would be
premature.
The public respondent also points out that the
constitutional prohibition is against the payment of public
money without the corresponding appropriation. There is
no rule that only money already in existence can be the
subject of an appropriation law. Finally, the earmarking
of fifty billion pesos as Agrarian Reform Fund, although
denominated as an initial amount, is actually the
maximum sum appropriated. The word "initial" simply
means that additional amounts may be appropriated
later when necessary.
On April 11, 1988, Prudencio Serrano, a coconut planter,
filed a petition on his own behalf, assailing the
constitutionality of E.O. No. 229. In addition to the
arguments already raised, Serrano contends that the
measure is unconstitutional because:
(1) Only public lands should be included in the
CARP;
(2) E.O. No. 229 embraces more than one
subject which is not expressed in the title;
(3) The power of the President to legislate was
terminated on July 2, 1987; and
(4) The appropriation of a P50 billion special
fund from the National Treasury did not originate
from the House of Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of
Department of Agrarian Reform, in violation of due
process and the requirement for just compensation,
placed his landholding under the coverage of Operation
Land Transfer. Certificates of Land Transfer were
subsequently issued to the private respondents, who
then refused payment of lease rentals to him.
On September 3, 1986, the petitioner protested the
erroneous inclusion of his small landholding under
Operation Land transfer and asked for the recall and
cancellation of the Certificates of Land Transfer in the
name of the private respondents. He claims that on
December 24, 1986, his petition was denied without
hearing. On February 17, 1987, he filed a motion for
reconsideration, which had not been acted upon when
E.O. Nos. 228 and 229 were issued. These orders
rendered his motion moot and academic because they
directly effected the transfer of his land to the private
respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly issued
by the President of the Philippines.
(2) The said executive orders are violative of the
constitutional provision that no private property
shall be taken without due process or just
compensation.
(3) The petitioner is denied the right of maximum
retention provided for under the 1987
Constitution.
The petitioner contends that the issuance of E.0. Nos.
228 and 229 shortly before Congress convened is
anomalous and arbitrary, besides violating the doctrine
of separation of powers. The legislative power granted to
the President under the Transitory Provisions refers only
to emergency measures that may be promulgated in the
proper exercise of the police power.
The petitioner also invokes his rights not to be deprived
of his property without due process of law and to the
retention of his small parcels of riceholding as
guaranteed under Article XIII, Section 4 of the
Constitution. He likewise argues that, besides denying
him just compensation for his land, the provisions of
E.O. No. 228 declaring that:
Lease rentals paid to the landowner by the
farmer-beneficiary after October 21, 1972 shall
be considered as advance payment for the land.
is an unconstitutional taking of a vested property right. It
is also his contention that the inclusion of even small
landowners in the program along with other landowners
with lands consisting of seven hectares or more is
undemocratic.
In his Comment, the Solicitor General submits that the
petition is premature because the motion for
reconsideration filed with the Minister of Agrarian Reform
is still unresolved. As for the validity of the issuance of
E.O. Nos. 228 and 229, he argues that they were
enacted pursuant to Section 6, Article XVIII of the
Transitory Provisions of the 1987 Constitution which
reads:
The incumbent president shall continue to exercise
legislative powers until the first Congress is convened.
On the issue of just compensation, his position is that
when P.D. No. 27 was promulgated on October 21.
1972, the tenant-farmer of agricultural land was deemed
the owner of the land he was tilling. The leasehold
rentals paid after that date should therefore be
considered amortization payments.
In his Reply to the public respondents, the petitioner
maintains that the motion he filed was resolved on
December 14, 1987. An appeal to the Office of the
President would be useless with the promulgation of
E.O. Nos. 228 and 229, which in effect sanctioned the
validity of the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention
granted by P.D. No. 27 to owners of rice and corn lands
not exceeding seven hectares as long as they are
cultivating or intend to cultivate the same. Their
respective lands do not exceed the statutory limit but are
occupied by tenants who are actually cultivating such
lands.
According to P.D. No. 316, which was promulgated in
implementation of P.D. No. 27:
No tenant-farmer in agricultural lands primarily
devoted to rice and corn shall be ejected or
removed from his farmholding until such time as
the respective rights of the tenant- farmers and
the landowner shall have been determined in
accordance with the rules and regulations
implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and
so are unable to enjoy their right of retention because
the Department of Agrarian Reform has so far not issued
the implementing rules required under the above-quoted
decree. They therefore ask the Court for a writ of
mandamus to compel the respondent to issue the said
rules.
In his Comment, the public respondent argues that P.D.
No. 27 has been amended by LOI 474 removing any
right of retention from persons who own other
agricultural lands of more than 7 hectares in aggregate
area or lands used for residential, commercial, industrial
or other purposes from which they derive adequate
income for their family. And even assuming that the
petitioners do not fall under its terms, the regulations
implementing P.D. No. 27 have already been issued, to
wit, the Memorandum dated July 10, 1975 (Interim
Guidelines on Retention by Small Landowners, with an
accompanying Retention Guide Table), Memorandum
Circular No. 11 dated April 21, 1978, (Implementation
Guidelines of LOI No. 474), Memorandum Circular No.
18-81 dated December 29,1981 (Clarificatory Guidelines
on Coverage of P.D. No. 27 and Retention by Small
Landowners), and DAR Administrative Order No. 1,
series of 1985 (Providing for a Cut-off Date for
Landowners to Apply for Retention and/or to Protest the
Coverage of their Landholdings under Operation Land
Transfer pursuant to P.D. No. 27). For failure to file the
corresponding applications for retention under these
measures, the petitioners are now barred from invoking
this right.
The public respondent also stresses that the petitioners
have prematurely initiated this case notwithstanding the
pendency of their appeal to the President of the
Philippines. Moreover, the issuance of the implementing
rules, assuming this has not yet been done, involves the
exercise of discretion which cannot be controlled through
the writ of mandamus. This is especially true if this
function is entrusted, as in this case, to a separate
department of the government.
In their Reply, the petitioners insist that the above-cited
measures are not applicable to them because they do
not own more than seven hectares of agricultural land.
Moreover, assuming arguendo that the rules were
intended to cover them also, the said measures are
nevertheless not in force because they have not been
published as required by law and the ruling of this Court
in Tanada v. Tuvera.10 As for LOI 474, the same is
ineffective for the additional reason that a mere letter of
instruction could not have repealed the presidential
decree.
I
Although holding neither purse nor sword and so
regarded as the weakest of the three departments of the
government, the judiciary is nonetheless vested with the
power to annul the acts of either the legislative or the
executive or of both when not conformable to the
fundamental law. This is the reason for what some
quarters call the doctrine of judicial supremacy. Even so,
this power is not lightly assumed or readily exercised.
The doctrine of separation of powers imposes upon the
courts a proper restraint, born of the nature of their
functions and of their respect for the other departments,
in striking down the acts of the legislative and the
executive as unconstitutional. The policy, indeed, is a
blend of courtesy and caution. To doubt is to sustain.
The theory is that before the act was done or the law
was enacted, earnest studies were made by Congress
or the President, or both, to insure that the Constitution
would not be breached.
In addition, the Constitution itself lays down stringent
conditions for a declaration of unconstitutionality,
requiring therefor the concurrence of a majority of the
members of the Supreme Court who took part in the
deliberations and voted on the issue during their session
en banc.11 And as established by judge made doctrine,
the Court will assume jurisdiction over a constitutional
question only if it is shown that the essential requisites of
a judicial inquiry into such a question are first satisfied.
Thus, there must be an actual case or controversy
involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have
been opportunely raised by the proper party, and the
resolution of the question is unavoidably necessary to
the decision of the case itself. 12
With particular regard to the requirement of proper party
as applied in the cases before us, we hold that the same
is satisfied by the petitioners and intervenors because
each of them has sustained or is in danger of sustaining
an immediate injury as a result of the acts or measures
complained of. 13 And even if, strictly speaking, they are
not covered by the definition, it is still within the wide
discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving
the serious constitutional questions raised.
In the first Emergency Powers Cases, 14 ordinary
citizens and taxpayers were allowed to question the
constitutionality of several executive orders issued by
President Quirino although they were invoking only an
indirect and general interest shared in common with the
public. The Court dismissed the objection that they were
not proper parties and ruled that "the transcendental
importance to the public of these cases demands
that they be settled promptly and definitely,
brushing aside, if we must, technicalities of
procedure." We have since then applied this exception
in many other cases. 15
The other above-mentioned requisites have also been
met in the present petitions.
In must be stressed that despite the inhibitions pressing
upon the Court when confronted with constitutional
issues like the ones now before it, it will not hesitate to
declare a law or act invalid when it is convinced that this
must be done. In arriving at this conclusion, its only
criterion will be the Constitution as God and its
conscience give it the light to probe its meaning and
discover its purpose. Personal motives and political
considerations are irrelevancies that cannot influence its
decision. Blandishment is as ineffectual as intimidation.
For all the awesome power of the Congress and the
Executive, the Court will not hesitate to "make the
hammer fall, and heavily," to use Justice Laurel's pithy
language, where the acts of these departments, or of
any public official, betray the people's will as expressed
in the Constitution.
It need only be added, to borrow again the words of
Justice Laurel, that —
... when the judiciary mediates to allocate
constitutional boundaries, it does not assert
any superiority over the other departments; it
does not in reality nullify or invalidate an act of
the Legislature, but only asserts the solemn
and sacred obligation assigned to it by the
Constitution to determine conflicting claims
of authority under the Constitution and to
establish for the parties in an actual controversy
the rights which that instrument secures and
guarantees to them. This is in truth all that is
involved in what is termed "judicial supremacy"
which properly is the power of judicial review
under the Constitution. 16
The cases before us categorically raise constitutional
questions that this Court must categorically resolve. And
so we shall.
II
We proceed first to the examination of the preliminary
issues before resolving the more serious challenges to
the constitutionality of the several measures involved in
these petitions.
The promulgation of P.D. No. 27 by President Marcos in
the exercise of his powers under martial law has already
been sustained in Gonzales v. Estrella and we find no
reason to modify or reverse it on that issue. As for the
power of President Aquino to promulgate Proc. No. 131
and E.O. Nos. 228 and 229, the same was authorized
under Section 6 of the Transitory Provisions of the 1987
Constitution, quoted above.
The said measures were issued by President Aquino
before July 27, 1987, when the Congress of the
Philippines was formally convened and took over
legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature
because E.O. No. 228 was issued on July 17, 1987, and
the other measures, i.e., Proc. No. 131 and E.O. No.
229, were both issued on July 22, 1987. Neither is it
correct to say that these measures ceased to be valid
when she lost her legislative power for, like any statute,
they continue to be in force unless modified or repealed
by subsequent law or declared invalid by the courts. A
statute does not ipso facto become inoperative simply
because of the dissolution of the legislature that enacted
it. By the same token, President Aquino's loss of
legislative power did not have the effect of invalidating all
the measures enacted by her when and as long as she
possessed it.
Significantly, the Congress she is alleged to have
undercut has not rejected but in fact substantially
affirmed the challenged measures and has specifically
provided that they shall be suppletory to R.A. No. 6657
whenever not inconsistent with its provisions. 17 Indeed,
some portions of the said measures, like the creation of
the P50 billion fund in Section 2 of Proc. No. 131, and
Sections 20 and 21 of E.O. No. 229, have been
incorporated by reference in the CARP Law. 18
That fund, as earlier noted, is itself being questioned on
the ground that it does not conform to the requirements
of a valid appropriation as specified in the Constitution.
Clearly, however, Proc. No. 131 is not an appropriation
measure even if it does provide for the creation of said
fund, for that is not its principal purpose. An
appropriation law is one the primary and specific
purpose of which is to authorize the release of public
funds from the treasury. 19 The creation of the fund is
only incidental to the main objective of the proclamation,
which is agrarian reform.
It should follow that the specific constitutional provisions
invoked, to wit, Section 24 and Section 25(4) of Article
VI, are not applicable. With particular reference to
Section 24, this obviously could not have been complied
with for the simple reason that the House of
Representatives, which now has the exclusive power to
initiate appropriation measures, had not yet been
convened when the proclamation was issued. The
legislative power was then solely vested in the President
of the Philippines, who embodied, as it were, both
houses of Congress.
The argument of some of the petitioners that Proc. No.
131 and E.O. No. 229 should be invalidated because
they do not provide for retention limits as required by
Article XIII, Section 4 of the Constitution is no longer
tenable. R.A. No. 6657 does provide for such limits now
in Section 6 of the law, which in fact is one of its most
controversial provisions. This section declares:
Retention Limits. — Except as otherwise
provided in this Act, no person may own or
 retain, directly or indirectly, any public or private
agricultural land, the size of which shall vary
according to factors governing a viable family-
sized farm, such as commodity produced,
terrain, infrastructure, and soil fertility as
determined by the Presidential Agrarian Reform
Council (PARC) created hereunder, but in no
case shall retention by the landowner exceed
five (5) hectares. Three (3) hectares may be
awarded to each child of the landowner, subject
to the following qualifications: (1) that he is at
least fifteen (15) years of age; and (2) that he is
actually tilling the land or directly managing the
farm; Provided, That landowners whose lands
have been covered by Presidential Decree No.
27 shall be allowed to keep the area originally
retained by them thereunder, further, That
original homestead grantees or direct
compulsory heirs who still own the original
homestead at the time of the approval of this Act
shall retain the same areas as long as they
continue to cultivate said homestead.
The argument that E.O. No. 229 violates the
constitutional requirement that a bill shall have only one
subject, to be expressed in its title, deserves only short
attention. It is settled that the title of the bill does not
have to be a catalogue of its contents and will suffice if
the matters embodied in the text are relevant to each
other and may be inferred from the title. 20
The Court wryly observes that during the past
dictatorship, every presidential issuance, by whatever
name it was called, had the force and effect of law
because it came from President Marcos. Such are the
ways of despots. Hence, it is futile to argue, as the
petitioners do in G.R. No. 79744, that LOI 474 could not
have repealed P.D. No. 27 because the former was only
a letter of instruction. The important thing is that it was
issued by President Marcos, whose word was law during
that time.
But for all their peremptoriness, these issuances from
the President Marcos still had to comply with the
requirement for publication as this Court held in Tanada
v. Tuvera. 21 Hence, unless published in the Official
Gazette in accordance with Article 2 of the Civil Code,
they could not have any force and effect if they were
among those enactments successfully challenged in that
case. LOI 474 was published, though, in the Official
Gazette dated November 29,1976.)
Finally, there is the contention of the public respondent
in G.R. No. 78742 that the writ of mandamus cannot
issue to compel the performance of a discretionary act,
especially by a specific department of the government.
That is true as a general proposition but is subject to one
important qualification. Correctly and categorically
stated, the rule is that mandamus will lie to compel the
discharge of the discretionary duty itself but not to
control the discretion to be exercised. In other words,
mandamus can issue to require action only but not
specific action.
Whenever a duty is imposed upon a public
official and an unnecessary and unreasonable
delay in the exercise of such duty occurs, if it is
a clear duty imposed by law, the courts will
intervene by the extraordinary legal remedy of
mandamus to compel action. If the duty is purely
ministerial, the courts will require specific action.
If the duty is purely discretionary, the courts
by mandamus will require action only. For
example, if an inferior court, public official, or
board should, for an unreasonable length of
time, fail to decide a particular question to the
 great detriment of all parties concerned, or a
court should refuse to take jurisdiction of a
cause when the law clearly gave it jurisdiction
mandamus will issue, in the first case to require
a decision, and in the second to require that
jurisdiction be taken of the cause. 22
And while it is true that as a rule the writ will not be
proper as long as there is still a plain, speedy and
adequate remedy available from the administrative
authorities, resort to the courts may still be permitted if
the issue raised is a question of law. 23
III
There are traditional distinctions between the police
power and the power of eminent domain that logically
preclude the application of both powers at the same time
on the same subject. In the case of City of Baguio v.
NAWASA, 24for example, where a law required the
transfer of all municipal waterworks systems to the
NAWASA in exchange for its assets of equivalent value,
the Court held that the power being exercised was
eminent domain because the property involved was
wholesome and intended for a public use. Property
condemned under the police power is noxious or
intended for a noxious purpose, such as a building on
the verge of collapse, which should be demolished for
the public safety, or obscene materials, which should be
destroyed in the interest of public morals. The
confiscation of such property is not compensable, unlike
the taking of property under the power of expropriation,
which requires the payment of just compensation to the
owner.
In the case of Pennsylvania Coal Co. v.
Mahon, 25 Justice Holmes laid down the limits of the
police power in a famous aphorism: "The general rule at
least is that while property may be regulated to a certain
extent, if regulation goes too far it will be recognized as a
taking." The regulation that went "too far" was a law
prohibiting mining which might cause the subsidence of
structures for human habitation constructed on the land
surface. This was resisted by a coal company which had
earlier granted a deed to the land over its mine but
reserved all mining rights thereunder, with the grantee
assuming all risks and waiving any damage claim. The
Court held the law could not be sustained without
compensating the grantor. Justice Brandeis filed a lone
dissent in which he argued that there was a valid
exercise of the police power. He said:
Every restriction upon the use of property
imposed in the exercise of the police power
deprives the owner of some right theretofore
enjoyed, and is, in that sense, an abridgment by
the State of rights in property without making
compensation. But restriction imposed to protect
the public health, safety or morals from dangers
threatened is not a taking. The restriction here in
question is merely the prohibition of a noxious
use. The property so restricted remains in the
possession of its owner. The state does not
appropriate it or make any use of it. The state
merely prevents the owner from making a use
which interferes with paramount rights of the
public. Whenever the use prohibited ceases to
be noxious — as it may because of further
changes in local or social conditions — the
restriction will have to be removed and the
owner will again be free to enjoy his property as
heretofore.
Recent trends, however, would indicate not a
polarization but a mingling of the police power and the
power of eminent domain, with the latter being used as
an implement of the former like the power of taxation.
The employment of the taxing power to achieve a police
purpose has long been accepted. 26 As for the power of
expropriation, Prof. John J. Costonis of the University of
Illinois College of Law (referring to the earlier case of
Euclid v. Ambler Realty Co., 272 US 365, which
sustained a zoning law under the police power) makes
the following significant remarks:
Euclid, moreover, was decided in an era when
judges located the Police and eminent domain
powers on different planets. Generally speaking,
they viewed eminent domain as encompassing
public acquisition of private property for
improvements that would be available for public
use," literally construed. To the police power, on
the other hand, they assigned the less intrusive
task of preventing harmful externalities a point
reflected in the Euclid opinion's reliance on an
analogy to nuisance law to bolster its support of
zoning. So long as suppression of a privately
authored harm bore a plausible relation to some
legitimate "public purpose," the pertinent
measure need have afforded no compensation
whatever. With the progressive growth of
government's involvement in land use, the
distance between the two powers has
contracted considerably. Today government
often employs eminent domain interchangeably
with or as a useful complement to the police
power-- a trend expressly approved in the
Supreme Court's 1954 decision in Berman v.
Parker, which broadened the reach of eminent
domain's "public use" test to match that of the
police power's standard of "public purpose." 27
The Berman case sustained a redevelopment project
and the improvement of blighted areas in the District of
Columbia as a proper exercise of the police power. On
the role of eminent domain in the attainment of this
purpose, Justice Douglas declared:
If those who govern the District of Columbia
decide that the Nation's Capital should be
beautiful as well as sanitary, there is nothing in
the Fifth Amendment that stands in the way.
Once the object is within the authority of
Congress, the right to realize it through the
exercise of eminent domain is clear.
For the power of eminent domain is merely the
means to the end. 28
In Penn Central Transportation Co. v. New York
City, 29 decided by a 6-3 vote in 1978, the U.S Supreme
Court sustained the respondent's Landmarks
Preservation Law under which the owners of the Grand
Central Terminal had not been allowed to construct a
multi-story office building over the Terminal, which had
been designated a historic landmark. Preservation of the
landmark was held to be a valid objective of the police
power. The problem, however, was that the owners of
the Terminal would be deprived of the right to use the
airspace above it although other landowners in the area
could do so over their respective properties. While
insisting that there was here no taking, the Court
nonetheless recognized certain compensatory rights
accruing to Grand Central Terminal which it said would
"undoubtedly mitigate" the loss caused by the regulation.
This "fair compensation," as he called it, was explained
by Prof. Costonis in this wise:
In return for retaining the Terminal site in its pristine
landmark status, Penn Central was authorized to
transfer to neighboring properties the authorized but
unused rights accruing to the site prior to the Terminal's
designation as a landmark — the rights which would
have been exhausted by the 59-story building that the
city refused to countenance atop the Terminal.
Prevailing bulk restrictions on neighboring sites were
proportionately relaxed, theoretically enabling Penn
Central to recoup its losses at the Terminal site by
constructing or selling to others the right to construct
larger, hence more profitable buildings on the transferee
sites. 30
The cases before us present no knotty complication
insofar as the question of compensable taking is
concerned. To the extent that the measures under
challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for
the regulation of private property in accordance with the
Constitution. But where, to carry out such regulation, it
becomes necessary to deprive such owners of whatever
lands they may own in excess of the maximum area
allowed, there is definitely a taking under the power of
eminent domain for which payment of just compensation
is imperative. The taking contemplated is not a mere
limitation of the use of the land. What is required is the
surrender of the title to and the physical possession of
the said excess and all beneficial rights accruing to the
owner in favor of the farmer-beneficiary. This is definitely
an exercise not of the police power but of the power of
eminent domain.
Whether as an exercise of the police power or of the
power of eminent domain, the several measures before
us are challenged as violative of the due process and
equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and
299 on the ground that no retention limits are prescribed
has already been discussed and dismissed. It is noted
that although they excited many bitter exchanges during
the deliberation of the CARP Law in Congress, the
retention limits finally agreed upon are, curiously
enough, not being questioned in these petitions. We
therefore do not discuss them here. The Court will come
to the other claimed violations of due process in
connection with our examination of the adequacy of just
compensation as required under the power of
expropriation.
The argument of the small farmers that they have been
denied equal protection because of the absence of
retention limits has also become academic under
Section 6 of R.A. No. 6657. Significantly, they too have
not questioned the area of such limits. There is also the
complaint that they should not be made to share the
burden of agrarian reform, an objection also made by the
sugar planters on the ground that they belong to a
particular class with particular interests of their own.
However, no evidence has been submitted to the Court
that the requisites of a valid classification have been
violated.
Classification has been defined as the grouping of
persons or things similar to each other in certain
particulars and different from each other in these same
particulars. 31 To be valid, it must conform to the
following requirements: (1) it must be based on
substantial distinctions; (2) it must be germane to the
purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all the
members of the class. 32 The Court finds that all these
requisites have been met by the measures here
challenged as arbitrary and discriminatory.
Equal protection simply means that all persons or things
similarly situated must be treated alike both as to the
rights conferred and the liabilities imposed. 33 The
petitioners have not shown that they belong to a different
class and entitled to a different treatment. The argument
that not only landowners but also owners of other
properties must be made to share the burden of
implementing land reform must be rejected. There is a
substantial distinction between these two classes of
owners that is clearly visible except to those who will not
see. There is no need to elaborate on this matter. In any
event, the Congress is allowed a wide leeway in
providing for a valid classification. Its decision is
accorded recognition and respect by the courts of justice
except only where its discretion is abused to the
detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may
be sustained under the police power only if there is a
concurrence of the lawful subject and the lawful method.
Put otherwise, the interests of the public generally as
distinguished from those of a particular class require the
interference of the State and, no less important, the
means employed are reasonably necessary for the
attainment of the purpose sought to be achieved and not
unduly oppressive upon individuals. 34 As the subject
and purpose of agrarian reform have been laid down by
the Constitution itself, we may say that the first
requirement has been satisfied. What remains to be
examined is the validity of the method employed to
achieve the constitutional goal.
One of the basic principles of the democratic system is
that where the rights of the individual are concerned, the
end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions,
will excuse the bypassing of an individual's rights. It is no
exaggeration to say that a, person invoking a right
guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation
who would deny him that right.
That right covers the person's life, his liberty and his
property under Section 1 of Article III of the Constitution.
With regard to his property, the owner enjoys the added
protection of Section 9, which reaffirms the familiar rule
that private property shall not be taken for public use
without just compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the
State that enables it to forcibly acquire private
lands intended for public use upon payment of
just compensation to the owner. Obviously,
there is no need to expropriate where the owner
is willing to sell under terms also acceptable to
the purchaser, in which case an ordinary deed of
sale may be agreed upon by the parties. 35 It is
only where the owner is unwilling to sell, or
cannot accept the price or other conditions
offered by the vendee, that the power of eminent
domain will come into play to assert the
paramount authority of the State over the
interests of the property owner. Private rights
must then yield to the irresistible demands of the
public interest on the time-honored justification,
as in the case of the police power, that the
welfare of the people is the supreme law.
But for all its primacy and urgency, the power of
expropriation is by no means absolute (as indeed no
power is absolute). The limitation is found in the
constitutional injunction that "private property shall not
be taken for public use without just compensation" and
in the abundant jurisprudence that has evolved from the
interpretation of this principle. Basically, the
requirements for a proper exercise of the power are: (1)
public use and (2) just compensation.
Let us dispose first of the argument raised by the
petitioners in G.R. No. 79310 that the State should first
distribute public agricultural lands in the pursuit of
agrarian reform instead of immediately disturbing
property rights by forcibly acquiring private agricultural
lands. Parenthetically, it is not correct to say that only
public agricultural lands may be covered by the CARP
as the Constitution calls for "the just distribution of all
agricultural lands." In any event, the decision to
redistribute private agricultural lands in the manner
prescribed by the CARP was made by the legislative and
executive departments in the exercise of their discretion.
We are not justified in reviewing that discretion in the
absence of a clear showing that it has been abused.
A becoming courtesy admonishes us to respect the
decisions of the political departments when they decide
what is known as the political question. As explained by
Chief Justice Concepcion in the case of Tañada v.
Cuenco: 36
The term "political question" connotes what it
means in ordinary parlance, namely, a question
of policy. It refers to "those questions which,
under the Constitution, are to be decided by the
people in their sovereign capacity; or in regard
to which full discretionary authority has been
delegated to the legislative or executive branch
of the government." It is concerned with issues
dependent upon the wisdom, not legality, of a
particular measure.
It is true that the concept of the political question has
been constricted with the enlargement of judicial power,
which now includes the authority of the courts "to
determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government." 37 Even so, this should not be construed
as a license for us to reverse the other departments
simply because their views may not coincide with ours.
The legislature and the executive have been seen fit, in
their wisdom, to include in the CARP the redistribution of
private landholdings (even as the distribution of public
agricultural lands is first provided for, while also
continuing apace under the Public Land Act and other
cognate laws). The Court sees no justification to
interpose its authority, which we may assert only if we
believe that the political decision is not unwise, but
illegal. We do not find it to be so.
In U.S. v. Chandler-Dunbar Water Power Company,38 it
was held:
Congress having determined, as it did by the Act
of March 3,1909 that the entire St. Mary's river
between the American bank and the
international line, as well as all of the upland
north of the present ship canal, throughout its
entire length, was "necessary for the purpose of
navigation of said waters, and the waters
connected therewith," that determination is
conclusive in condemnation proceedings
instituted by the United States under that Act,
and there is no room for judicial review of the
judgment of Congress ... .
As earlier observed, the requirement for public use has
already been settled for us by the Constitution itself No
less than the 1987 Charter calls for agrarian reform,
which is the reason why private agricultural lands are to
be taken from their owners, subject to the prescribed
maximum retention limits. The purposes specified in
P.D. No. 27, Proc. No. 131 and R.A. No. 6657 are only
an elaboration of the constitutional injunction that the
State adopt the necessary measures "to encourage and
undertake the just distribution of all agricultural lands to
enable farmers who are landless to own directly or
collectively the lands they till." That public use, as
pronounced by the fundamental law itself, must be
binding on us.
The second requirement, i.e., the payment of just
compensation, needs a longer and more thoughtful
examination.
Just compensation is defined as the full and fair
equivalent of the property taken from its owner by the
expropriator. 39 It has been repeatedly stressed by this
Court that the measure is not the taker's gain but the
owner's loss. 40 The word "just" is used to intensify the
meaning of the word "compensation" to convey the idea
that the equivalent to be rendered for the property to be
taken shall be real, substantial, full, ample. 41
It bears repeating that the measures challenged in these
petitions contemplate more than a mere regulation of the
use of private lands under the police power. We deal
here with an actual taking of private agricultural lands
that has dispossessed the owners of their property and
deprived them of all its beneficial use and enjoyment, to
entitle them to the just compensation mandated by the
Constitution.
As held in Republic of the Philippines v.
Castellvi, 42 there is compensable taking when the
following conditions concur: (1) the expropriator must
enter a private property; (2) the entry must be for more
than a momentary period; (3) the entry must be under
warrant or color of legal authority; (4) the property must
be devoted to public use or otherwise informally
appropriated or injuriously affected; and (5) the utilization
of the property for public use must be in such a way as
to oust the owner and deprive him of beneficial
enjoyment of the property. All these requisites are
envisioned in the measures before us.
Where the State itself is the expropriator, it is not
necessary for it to make a deposit upon its taking
possession of the condemned property, as "the
compensation is a public charge, the good faith of the
public is pledged for its payment, and all the resources
of taxation may be employed in raising the
amount." 43 Nevertheless, Section 16(e) of the CARP
Law provides that:
Upon receipt by the landowner of the
corresponding payment or, in case of rejection
or no response from the landowner, upon the
deposit with an accessible bank designated by
the DAR of the compensation in cash or in LBP
bonds in accordance with this Act, the DAR shall
take immediate possession of the land and shall
request the proper Register of Deeds to issue a
Transfer Certificate of Title (TCT) in the name of
the Republic of the Philippines. The DAR shall
thereafter proceed with the redistribution of the
land to the qualified beneficiaries.
Objection is raised, however, to the manner of fixing the
just compensation, which it is claimed is entrusted to the
administrative authorities in violation of judicial
prerogatives. Specific reference is made to Section
16(d), which provides that in case of the rejection or
disregard by the owner of the offer of the government to
buy his land-
... the DAR shall conduct summary
administrative proceedings to determine the
compensation for the land by requiring the
 landowner, the LBP and other interested parties
to submit evidence as to the just compensation
for the land, within fifteen (15) days from the
receipt of the notice. After the expiration of the
above period, the matter is deemed submitted
for decision. The DAR shall decide the case
within thirty (30) days after it is submitted for
decision.
To be sure, the determination of just compensation is a
function addressed to the courts of justice and may not
be usurped by any other branch or official of the
government. EPZA v. Dulay 44 resolved a challenge to
several decrees promulgated by President Marcos
providing that the just compensation for property under
expropriation should be either the assessment of the
property by the government or the sworn valuation
thereof by the owner, whichever was lower. In declaring
these decrees unconstitutional, the Court held through
Mr. Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just compensation
under the aforecited decrees constitutes
impermissible encroachment on judicial
prerogatives. It tends to render this Court inutile
in a matter which under this Constitution is
reserved to it for final determination.
Thus, although in an expropriation proceeding
the court technically would still have the power
to determine the just compensation for the
property, following the applicable decrees, its
task would be relegated to simply stating the
lower value of the property as declared either by
the owner or the assessor. As a necessary
consequence, it would be useless for the court
to appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy the
 due process clause in the taking of private
property is seemingly fulfilled since it cannot be
said that a judicial proceeding was not had
before the actual taking. However, the strict
application of the decrees during the
proceedings would be nothing short of a mere
formality or charade as the court has only to
choose between the valuation of the owner and
that of the assessor, and its choice is always
limited to the lower of the two. The court cannot
exercise its discretion or independence in
determining what is just or fair. Even a grade
school pupil could substitute for the judge
insofar as the determination of constitutional just
compensation is concerned.
xxx
In the present petition, we are once again
confronted with the same question of whether
the courts under P.D. No. 1533, which contains
the same provision on just compensation as its
predecessor decrees, still have the power and
authority to determine just compensation,
independent of what is stated by the decree and
to this effect, to appoint commissioners for such
purpose.
This time, we answer in the affirmative.
xxx
It is violative of due process to deny the owner
the opportunity to prove that the valuation in the
tax documents is unfair or wrong. And it is
repulsive to the basic concepts of justice and
fairness to allow the haphazard work of a minor
bureaucrat or clerk to absolutely prevail over the
judgment of a court promulgated only after
 expert commissioners have actually viewed the
property, after evidence and arguments pro and
con have been presented, and after all factors
and considerations essential to a fair and just
determination have been judiciously evaluated.
A reading of the aforecited Section 16(d) will readily
show that it does not suffer from the arbitrariness that
rendered the challenged decrees constitutionally
objectionable. Although the proceedings are described
as summary, the landowner and other interested parties
are nevertheless allowed an opportunity to submit
evidence on the real value of the property. But more
importantly, the determination of the just compensation
by the DAR is not by any means final and conclusive
upon the landowner or any other interested party, for
Section 16(f) clearly provides:
Any party who disagrees with the decision may
bring the matter to the court of proper jurisdiction
for final determination of just compensation.
The determination made by the DAR is only preliminary
unless accepted by all parties concerned. Otherwise, the
courts of justice will still have the right to review with
finality the said determination in the exercise of what is
admittedly a judicial function.
The second and more serious objection to the provisions
on just compensation is not as easily resolved.
This refers to Section 18 of the CARP Law providing in
full as follows:
SEC. 18. Valuation and Mode of Compensation.
— The LBP shall compensate the landowner in
such amount as may be agreed upon by the
landowner and the DAR and the LBP, in
accordance with the criteria provided for in
Sections 16 and 17, and other pertinent
provisions hereof, or as may be finally
determined by the court, as the just
compensation for the land.
The compensation shall be paid in one of the
following modes, at the option of the landowner:
(1) Cash payment, under the following terms
and conditions:
(a) For lands above fifty (50)
hectares, insofar as the excess
hectarage is concerned —
Twenty-five percent (25%) cash,
the balance to be paid in
government financial
instruments negotiable at any
time.
(b) For lands above twenty-four
(24) hectares and up to fifty (50)
hectares — Thirty percent
(30%) cash, the balance to be
paid in government financial
instruments negotiable at any
time.
(c) For lands twenty-four (24)
hectares and below — Thirty-
five percent (35%) cash, the
balance to be paid in
government financial
instruments negotiable at any
time.
(2) Shares of stock in government-owned or
controlled corporations, LBP preferred shares,
physical assets or other qualified investments in
accordance with guidelines set by the PARC;
(3) Tax credits which can be used against any
tax liability;
(4) LBP bonds, which shall have the following
features:
(a) Market interest rates aligned
with 91-day treasury bill rates.
Ten percent (10%) of the face
value of the bonds shall mature
every year from the date of
issuance until the tenth (10th)
year: Provided, That should the
landowner choose to forego the
cash portion, whether in full or in
part, he shall be paid
correspondingly in LBP bonds;
(b) Transferability and
negotiability. Such LBP bonds
may be used by the landowner,
his successors-in- interest or his
assigns, up to the amount of
their face value, for any of the
following:
(i) Acquisition of land or other
real properties of the
government, including assets
under the Asset Privatization
Program and other assets
foreclosed by government
financial institutions in the same
province or region where the
lands for which the bonds were
paid are situated;
(ii) Acquisition of shares of stock
of government-owned or
controlled corporations or
shares of stock owned by the
government in private
corporations;
(iii) Substitution for surety or bail
bonds for the provisional
release of accused persons, or
for performance bonds;
(iv) Security for loans with any
government financial institution,
provided the proceeds of the
loans shall be invested in an
economic enterprise, preferably
in a small and medium- scale
industry, in the same province
or region as the land for which
the bonds are paid;
(v) Payment for various taxes
and fees to government:
Provided, That the use of these
bonds for these purposes will be
limited to a certain percentage
of the outstanding balance of
the financial instruments;
Provided, further, That the
PARC shall determine the
percentages mentioned above;
(vi) Payment for tuition fees of
the immediate family of the
original bondholder in
government universities,
colleges, trade schools, and
other institutions;
 (vii) Payment for fees of the
immediate family of the original
bondholder in government
hospitals; and
(viii) Such other uses as the
PARC may from time to time
allow.
The contention of the petitioners in G.R. No. 79777 is
that the above provision is unconstitutional insofar as it
requires the owners of the expropriated properties to
accept just compensation therefor in less than money,
which is the only medium of payment allowed. In support
of this contention, they cite jurisprudence holding that:
The fundamental rule in expropriation matters is
that the owner of the property expropriated is
entitled to a just compensation, which should be
neither more nor less, whenever it is possible to
make the assessment, than the money
equivalent of said property. Just compensation
has always been understood to be the just and
complete equivalent of the loss which the owner
of the thing expropriated has to suffer by reason
of the expropriation . 45 (Emphasis supplied.)
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this
Court held:
It is well-settled that just compensation means
the equivalent for the value of the property at the
time of its taking. Anything beyond that is more,
and anything short of that is less, than just
compensation. It means a fair and full equivalent
for the loss sustained, which is the measure of
the indemnity, not whatever gain would accrue
to the expropriating entity. The market value of
the land taken is the just compensation to which
 the owner of condemned property is entitled, the
market value being that sum of money which a
person desirous, but not compelled to buy, and
an owner, willing, but not compelled to sell,
would agree on as a price to be given and
received for such property. (Emphasis supplied.)
In the United States, where much of our jurisprudence
on the subject has been derived, the weight of authority
is also to the effect that just compensation for property
expropriated is payable only in money and not
otherwise. Thus —
The medium of payment of compensation is
ready money or cash. The condemnor cannot
compel the owner to accept anything but money,
nor can the owner compel or require the
condemnor to pay him on any other basis than
the value of the property in money at the time
and in the manner prescribed by the Constitution
and the statutes. When the power of eminent
domain is resorted to, there must be a standard
medium of payment, binding upon both parties,
and the law has fixed that standard as money in
cash. 47 (Emphasis supplied.)
Part cash and deferred payments are not and
cannot, in the nature of things, be regarded as a
reliable and constant standard of
compensation. 48
"Just compensation" for property taken by
condemnation means a fair equivalent in money,
which must be paid at least within a reasonable
time after the taking, and it is not within the
power of the Legislature to substitute for such
payment future obligations, bonds, or other
valuable advantage. 49(Emphasis supplied.)
It cannot be denied from these cases that the traditional
medium for the payment of just compensation is money
and no other. And so, conformably, has just
compensation been paid in the past solely in that
medium. However, we do not deal here with the
traditional excercise of the power of eminent domain.
This is not an ordinary expropriation where only a
specific property of relatively limited area is sought to be
taken by the State from its owner for a specific and
perhaps local purpose.
What we deal with here is a revolutionary kind of
expropriation.
The expropriation before us affects all private agricultural
lands whenever found and of whatever kind as long as
they are in excess of the maximum retention limits
allowed their owners. This kind of expropriation is
intended for the benefit not only of a particular
community or of a small segment of the population but of
the entire Filipino nation, from all levels of our society,
from the impoverished farmer to the land-glutted owner.
Its purpose does not cover only the whole territory of this
country but goes beyond in time to the foreseeable
future, which it hopes to secure and edify with the vision
and the sacrifice of the present generation of Filipinos.
Generations yet to come are as involved in this program
as we are today, although hopefully only as beneficiaries
of a richer and more fulfilling life we will guarantee to
them tomorrow through our thoughtfulness today. And,
finally, let it not be forgotten that it is no less than the
Constitution itself that has ordained this revolution in the
farms, calling for "a just distribution" among the farmers
of lands that have heretofore been the prison of their
dreams but can now become the key at least to their
deliverance.
Such a program will involve not mere millions of pesos.
The cost will be tremendous. Considering the vast areas
of land subject to expropriation under the laws before us,
we estimate that hundreds of billions of pesos will be
needed, far more indeed than the amount of P50 billion
initially appropriated, which is already staggering as it is
by our present standards. Such amount is in fact not
even fully available at this time.
We assume that the framers of the Constitution were
aware of this difficulty when they called for agrarian
reform as a top priority project of the government. It is a
part of this assumption that when they envisioned the
expropriation that would be needed, they also intended
that the just compensation would have to be paid not in
the orthodox way but a less conventional if more
practical method. There can be no doubt that they were
aware of the financial limitations of the government and
had no illusions that there would be enough money to
pay in cash and in full for the lands they wanted to be
distributed among the farmers. We may therefore
assume that their intention was to allow such manner of
payment as is now provided for by the CARP Law,
particularly the payment of the balance (if the owner
cannot be paid fully with money), or indeed of the entire
amount of the just compensation, with other things of
value. We may also suppose that what they had in mind
was a similar scheme of payment as that prescribed in
P.D. No. 27, which was the law in force at the time they
deliberated on the new Charter and with which they
presumably agreed in principle.
The Court has not found in the records of the
Constitutional Commission any categorical agreement
among the members regarding the meaning to be given
the concept of just compensation as applied to the
comprehensive agrarian reform program being
contemplated. There was the suggestion to "fine tune"
the requirement to suit the demands of the project even
as it was also felt that they should "leave it to Congress"
to determine how payment should be made to the
landowner and reimbursement required from the farmer-
beneficiaries. Such innovations as "progressive
compensation" and "State-subsidized compensation"
were also proposed. In the end, however, no special
definition of the just compensation for the lands to be
expropriated was reached by the Commission. 50
On the other hand, there is nothing in the records either
that militates against the assumptions we are making of
the general sentiments and intention of the members on
the content and manner of the payment to be made to
the landowner in the light of the magnitude of the
expenditure and the limitations of the expropriator.
With these assumptions, the Court hereby declares that
the content and manner of the just compensation
provided for in the afore- quoted Section 18 of the CARP
Law is not violative of the Constitution. We do not mind
admitting that a certain degree of pragmatism has
influenced our decision on this issue, but after all this
Court is not a cloistered institution removed from the
realities and demands of society or oblivious to the need
for its enhancement. The Court is as acutely anxious as
the rest of our people to see the goal of agrarian reform
achieved at last after the frustrations and deprivations of
our peasant masses during all these disappointing
decades. We are aware that invalidation of the said
section will result in the nullification of the entire
program, killing the farmer's hopes even as they
approach realization and resurrecting the spectre of
discontent and dissent in the restless countryside. That
is not in our view the intention of the Constitution, and
that is not what we shall decree today.
Accepting the theory that payment of the just
compensation is not always required to be made fully in
money, we find further that the proportion of cash
payment to the other things of value constituting the total
payment, as determined on the basis of the areas of the
lands expropriated, is not unduly oppressive upon the
landowner. It is noted that the smaller the land, the
bigger the payment in money, primarily because the
small landowner will be needing it more than the big
landowners, who can afford a bigger balance in bonds
and other things of value. No less importantly, the
government financial instruments making up the balance
of the payment are "negotiable at any time." The other
modes, which are likewise available to the landowner at
his option, are also not unreasonable because payment
is made in shares of stock, LBP bonds, other properties
or assets, tax credits, and other things of value
equivalent to the amount of just compensation.
Admittedly, the compensation contemplated in the law
will cause the landowners, big and small, not a little
inconvenience. As already remarked, this cannot be
avoided. Nevertheless, it is devoutly hoped that these
countrymen of ours, conscious as we know they are of
the need for their forebearance and even sacrifice, will
not begrudge us their indispensable share in the
attainment of the ideal of agrarian reform. Otherwise, our
pursuit of this elusive goal will be like the quest for the
Holy Grail.
The complaint against the effects of non-registration of
the land under E.O. No. 229 does not seem to be viable
any more as it appears that Section 4 of the said Order
has been superseded by Section 14 of the CARP Law.
This repeats the requisites of registration as embodied in
the earlier measure but does not provide, as the latter
did, that in case of failure or refusal to register the land,
the valuation thereof shall be that given by the provincial
or city assessor for tax purposes. On the contrary, the
CARP Law says that the just compensation shall be
ascertained on the basis of the factors mentioned in its
Section 17 and in the manner provided for in Section 16.
The last major challenge to CARP is that the landowner
is divested of his property even before actual payment to
him in full of just compensation, in contravention of a
well- accepted principle of eminent domain.
The recognized rule, indeed, is that title to the property
expropriated shall pass from the owner to the
expropriator only upon full payment of the just
compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic
jurisdictions. Thus:
Title to property which is the subject of condemnation
proceedings does not vest the condemnor until the
judgment fixing just compensation is entered and paid,
but the condemnor's title relates back to the date on
which the petition under the Eminent Domain Act, or the
commissioner's report under the Local Improvement Act,
is filed. 51
... although the right to appropriate and use land taken
for a canal is complete at the time of entry, title to the
property taken remains in the owner until payment is
actually made. 52 (Emphasis supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme Court
cited several cases holding that title to property does not
pass to the condemnor until just compensation had
actually been made. In fact, the decisions appear to be
uniformly to this effect. As early as 1838, in Rubottom v.
McLure, 54 it was held that "actual payment to the owner
of the condemned property was a condition precedent to
the investment of the title to the property in the State"
albeit "not to the appropriation of it to public use."
In Rexford v. Knight, 55 the Court of Appeals of New York
said that the construction upon the statutes was that the
fee did not vest in the State until the payment of the
compensation although the authority to enter upon and
appropriate the land was complete prior to the payment.
Kennedy further said that "both on principle and
authority the rule is ... that the right to enter on and use
the property is complete, as soon as the property is
actually appropriated under the authority of law for a
public use, but that the title does not pass from the
owner without his consent, until just compensation has
been made to him."
Our own Supreme Court has held
in Visayan Refining Co. v. Camus and Paredes, 56 that:
If the laws which we have exhibited or cited in
the preceding discussion are attentively
examined it will be apparent that the method of
expropriation adopted in this jurisdiction is such
as to afford absolute reassurance that no piece
of land can be finally and irrevocably taken from
an unwilling owner until compensation is paid ...
. (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the
emancipation of tenant-farmer as October 21, 1972 and
declared that he shall "be deemed the owner" of a
portion of land consisting of a family-sized farm except
that "no title to the land owned by him was to be actually
issued to him unless and until he had become a full-
fledged member of a duly recognized farmers'
cooperative." It was understood, however, that full
payment of the just compensation also had to be made
first, conformably to the constitutional requirement.
When E.O. No. 228, categorically stated in its Section 1
that:
 All qualified farmer-beneficiaries are now
deemed full owners as of October 21, 1972 of
the land they acquired by virtue of Presidential
Decree No. 27. (Emphasis supplied.)
it was obviously referring to lands already validly
acquired under the said decree, after proof of full-fledged
membership in the farmers' cooperatives and full
payment of just compensation. Hence, it was also
perfectly proper for the Order to also provide in its
Section 2 that the "lease rentals paid to the landowner
by the farmer- beneficiary after October 21, 1972
(pending transfer of ownership after full payment of just
compensation), shall be considered as advance
payment for the land."
The CARP Law, for its part, conditions the transfer of
possession and ownership of the land to the government
on receipt by the landowner of the corresponding
payment or the deposit by the DAR of the compensation
in cash or LBP bonds with an accessible bank. Until
then, title also remains with the landowner. 57 No outright
change of ownership is contemplated either.
Hence, the argument that the assailed measures violate
due process by arbitrarily transferring title before the
land is fully paid for must also be rejected.
It is worth stressing at this point that all rights acquired
by the tenant-farmer under P.D. No. 27, as recognized
under E.O. No. 228, are retained by him even now under
R.A. No. 6657. This should counter-balance the express
provision in Section 6 of the said law that "the
landowners whose lands have been covered by
Presidential Decree No. 27 shall be allowed to keep the
area originally retained by them thereunder, further, That
original homestead grantees or direct compulsory heirs
who still own the original homestead at the time of the
approval of this Act shall retain the same areas as long
as they continue to cultivate said homestead."
In connection with these retained rights, it does not
appear in G.R. No. 78742 that the appeal filed by the
petitioners with the Office of the President has already
been resolved. Although we have said that the doctrine
of exhaustion of administrative remedies need not
preclude immediate resort to judicial action, there are
factual issues that have yet to be examined on the
administrative level, especially the claim that the
petitioners are not covered by LOI 474 because they do
not own other agricultural lands than the subjects of their
petition.
Obviously, the Court cannot resolve these issues. In any
event, assuming that the petitioners have not yet
exercised their retention rights, if any, under P.D. No. 27,
the Court holds that they are entitled to the new retention
rights provided for by R.A. No. 6657, which in fact are on
the whole more liberal than those granted by the decree.
V
The CARP Law and the other enactments also involved
in these cases have been the subject of bitter attack
from those who point to the shortcomings of these
measures and ask that they be scrapped entirely. To be
sure, these enactments are less than perfect; indeed,
they should be continuously re-examined and rehoned,
that they may be sharper instruments for the better
protection of the farmer's rights. But we have to start
somewhere. In the pursuit of agrarian reform, we do not
tread on familiar ground but grope on terrain fraught with
pitfalls and expected difficulties. This is inevitable. The
CARP Law is not a tried and tested project. On the
contrary, to use Justice Holmes's words, "it is an
experiment, as all life is an experiment," and so we learn
as we venture forward, and, if necessary, by our own
mistakes. We cannot expect perfection although we
should strive for it by all means. Meantime, we struggle
as best we can in freeing the farmer from the iron
shackles that have unconscionably, and for so long,
fettered his soul to the soil.
By the decision we reach today, all major legal obstacles
to the comprehensive agrarian reform program are
removed, to clear the way for the true freedom of the
farmer. We may now glimpse the day he will be released
not only from want but also from the exploitation and
disdain of the past and from his own feelings of
inadequacy and helplessness. At last his servitude will
be ended forever. At last the farm on which he toils will
be his farm. It will be his portion of the Mother Earth that
will give him not only the staff of life but also the joy of
living. And where once it bred for him only deep despair,
now can he see in it the fruition of his hopes for a more
fulfilling future. Now at last can he banish from his small
plot of earth his insecurities and dark resentments and
"rebuild in it the music and the dream."
WHEREFORE, the Court holds as follows:
1. R.A. No. 6657, P.D. No. 27, Proc. No. 131,
and E.O. Nos. 228 and 229 are SUSTAINED
against all the constitutional objections raised in
the herein petitions.
2. Title to all expropriated properties shall be
transferred to the State only upon full payment
of compensation to their respective owners.
3. All rights previously acquired by the tenant-
farmers under P.D. No. 27 are retained and
recognized.
4. Landowners who were unable to exercise
their rights of retention under P.D. No. 27 shall
 enjoy the retention rights granted by R.A. No.
6657 under the conditions therein prescribed.
5. Subject to the above-mentioned rulings all the
petitions are DISMISSED, without
pronouncement as to costs.
SO ORDERED.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Gutierrez,
Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Griño-Aquino, Medialdea and
Regalado, JJ., concur.

Footnotes
1 Art. 11, Sec. 5.
2 1973 Constitution, Art. II, Sec. 6.
3 Ibid., Art. XIV, Sec. 12.
4 R.A. No. 6657, Sec. 15.
5 149 SCRA 305.
6 150 SCRA 89.
7 55 SCRA 26.
8 91 SCRA 294.
9 113 SCRA 798.
10 136 SCRA 271; 146 SCRA 446.
11 Art. VIII, Sec. 4(2).
12 Dumlao v. COMELEC, 95 SCRA 392.
13 Ex Parte Levitt, 303 US 633.
14 Araneta v. Dinglasan, 84 Phil. 368.
15 Pascual v. Secretary of Public Works, 110
Phil. 331; PHILCONSA v. Gimenez, 15 SCRA
479; Sanidad v. COMELEC, 73 SCRA 333.
16 Angara v. Electoral Commission, 63 Phil.
139.
17 R.A. No. 6657, Sec. 75.
18 Ibid., Sec. 63.
19 Bengzon v. Secretary of Justice, 299 US 410.
20 Alalayan v. NPC, 24 SCRA 172; Sumulong v.
COMELEC, 73 Phil. 288. Tio v. Videogram
Regulatory Board, 151 SCRA 208.
21 Supra.
22 Lamb v. Phipps, 22 Phil. 456.
23 Malabanan v. Ramento, 129 SCRA 359;
Espanol v. Chairman, Philippine Veterans
Administration, 137 SCRA 314.
24 106 Phil. 144.
25 260 US 393.
26 Powell v. Pennsylvania, 127 US 678: Lutz v.
Araneta, 98 Phil. 148; Tio v. Videogram
Regulatory Board, supra.
27 John J. Costonis "The Disparity Issue: A
Context for the Grand Central Terminal
Decision," Harvard Law Review, Vol.
91:40,1977, p. 404.
28 348 US 1954.
29 438 US 104.
30 See note 27.
31 International Harvester Co. v. Missouri, 234
US 199.
32 People v. Cayat, 68 Phil. 12.
33 Ichong v. Hernandez, 101 Phil. 1155.
34 US v. Toribio, 15 Phil. 85; Fable v. City of
Manila, 21 Phil. 486; Case v. Board of Health,
24 Phil. 256.
35 Noble v. City of Manila, 67 Phil. 1.
36 100 Phil. 1101.
37 1987 Constitution, Art. VIII, Sec. 1.
38 57 L ed. 1063.
39 Manila Railroad Co. v. Velasquez, 32 Phil.
286.
40 Province of Tayabas v. Perez, 66 Phil. 467;
J.M. Tuazon & Co., Inc. v. Land Tenure
Administration, 31 SCRA 413; Municipality of
Daet v. Court of Appeals, 93 SCRA 503;
Manotok v. National Housing Authority, 150
SCRA 89.
41 City of Manila v. Estrada, 25 Phil. 208.
42 58 SCRA 336.
43 Lewis, Law of Eminent Domain, 3rd Edition,
pp. 1166- 1167.
44 149 SCRA 305.
45 Manila Railroad Co. v. Velasquez, 32 Phil.
286; Province of Tayabas v. Perez, supra, at
note 40.
46 31 SCRA 413.
47 Mandl v. City of Phoenix, 18 p 2d 273.
48 Sacramento Southern R. Co. v. Heilbron 156
Cal. 408,104 pp. 979, 980.
49 City of Waterbury v. Platt Bros. & Co., 56 A
856, 76 Conn, 435 citing Butler v. Ravine Road
Sewer Com'rs, 39 N.J.L. 665; Bloodgood v.
Mohawk v. H.R.R. Co., N.Y. 18 Wend. 9 35, 31
Am. Dec. 313; Sanborn v. Helden, 51 Cal 266;
Burlington & C.R. Co. v. Schweikart, 14 p. 329,
10 Colo, 178; 23 Words and Phrases, pl. 460.
50 Record of the Constitutional Commission,
Vol. 2, pp. 647, 704; Vol. 3, pp. 16-20, 243-247.
51 Chicago Park Dist. v. Downey Coal Co., 1 Ill.
2d 54.
52 Kennedy v. Indianapolis, 103 US 599, 26 L
ed 550.
53 Ibid.
54 4 Blkf., 508.
55 11 NY 314.
56 40 Phil. 550.
57 Sec. 16(d).
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 79416 September 5, 1989
ROSALINA BONIFACIO, surviving wife; and children
GABRIEL, PONCIANO, TIBURCIO, BEATRIZ,
GENEROSA, SILVERIA, LEONARDO, FELOMENA,
ENCARNACION and LEONILA, all surnamed
BONIFACIO, petitioners,
vs.
HON. NATIVIDAD G. DIZON, Presiding Judge of the
Regional Trial Court of Malolos, Branch XIII, Malolos,
Bulacan and PASTORA SAN MIGUEL, respondents.

FERNAN, C.J.:
The issue raised in the instant petition
for certiorari certified to us by the Court of Appeals in its
resolution 1 dated November 28, 1986 in CA-G.R. SP
No. 10033 as involving a pure question of law is phrased
by petitioners, thus:
WHETHER OR NOT, THE FAVORABLE
JUDGMENT OBTAINED BY THE DECEDENT
IS INHERITED BY THE COMPULSORY HEIRS,
THEREBY VESTING TO THE LATTER, ALL
THE RIGHTS CONFERRED BY THE
JUDGMENT TO (sic) THE DECEDENT. 2
The favorable judgment adverted to by petitioners traces
its origin to the complaint filed on July 1, 1968 by
Olimpio Bonifacio before the then Court of Agrarian
Relations, Fifth Regional District, Branch I-A of Baliwag,
Bulacan, seeking the ejectment of private respondent
Pastora San Miguel from Bonifacio's two-hectare
agricultural land situated at Patubig, Marilao, Bulacan
and covered by Transfer Certificate of Title No. T-27298.
The ground relied upon therefor was personal cultivation
under Section 36 (1) of R.A. 3844, otherwise known as
the Agricultural Land Reform Code (CAR Case No.
2160-B'68).
After trial on the merits, judgment was rendered therein
on September 18, 1970 by Judge Manuel Jn. Serapio:
1. Granting authority to plaintiff OLIMPIO
BONIFACIO to eject defendant PASTORA SAN
MIGUEL from the landholding in question
situated at Patubig, Marilao, Bulacan with an
area of two (2) hectares, more or less, and
consequently, ordering said defendant to vacate
the same landholding and deliver possession
thereof to said plaintiff for the latter's personal
cultivation, subject to the provisions of Section
25 of R.A. 3844; and
2. Dismissing all other claims and counterclaims
of the parties. 3
On appeal by private respondent Pastora San Miguel,
the Court of Appeals 4 modified said judgment with
respect to her counterclaim by ordering Olimpio
Bonifacio to pay her the amount of P 1,376.00. The
judgment was affirmed in all other respects. 5
Still dissatisfied, private respondent Pastora San Miguel
sought relief from this Court. During the pendency of her
petition, on August 7, 1983, Olimpio Bonifacio died. As
no notice of such death was given to the Court, no order
for the substitution of his heirs was made. On July 31,
1985, the Court En Banc resolved to deny private
respondent's petition for lack of merit and to affirm the
decision of the Court of Appeals. 6
Subsequently, petitioners Rosalina Bonifacio, as
surviving wife, and Gabriel, Ponciano, Tiburcio, Beatriz,
Generosa, Silveria, Leonardo, Felomena, Encarnacion
and Leonila all surnamed Bonifacio, as children and
heirs of Olimpio Bonifacio, moved for the execution of
the decision in CAR Case No. 2160-B'68 before the
respondent Regional Trial Court of Bulacan. A writ of
execution was issued on February 20, 1986 and on
March 6, 1986, the Deputy Sheriff submitted his Report
(Partial Delivery of Possession), stating in part that
except for a portion thereof occupied by the house of
Pastora San Miguel which the latter refused to vacate,
he had delivered the land subject matter of the action to
Rosalina Bonifacio as surviving wife of Olimpio
Bonifacio.
Thereafter, private respondent Pastora San Miguel
moved to quash the writ of execution. This was opposed
by petitioners who in turn sought the issuance of a writ of
demolition and an order declaring Pastora San Miguel in
contempt of court for allegedly re-entering the subject
land.
After hearing, respondent Judge Natividad G. Dizon
issued a resolution on July 15, 1986, the dispositive
portion of which reads:
WHEREFORE, the implementation of the writ of
execution of the Decision dated September 18,
1970 made by the Sheriff of this Court, per
directive contained in our Order of February 18,
1986, is hereby declared null and void; the
"Motion for Demolition" filed by plaintiff is hereby
denied; and, the "Petition for Contempt" likewise
denied.
SO ORDERED. 7
Petitioners assail this resolution in the petition
for certiorari filed before the Court of Appeals, which as
stated earlier, was certified to us pursuant to Section 9
(3) of Batas Pambansa Blg. 129 in relation to Section 5
(2) [e], Art. X of the 1973 Constitution and Rule 50, Sec.
3 of the Revised Rules of Court.
Petitioners contend that respondent judge committed
grave abuse of discretion tantamount to lack of
jurisdiction in ruling that the decision in CAR Case No.
2160-B'68 can no longer be executed as said action is
purely personal in character and therefore cannot, upon
Olimpio Bonifacio's death, be inherited by his heirs. They
assert that CAR Case No. 2160-B'68, being an
ejectment case and not one of those specifically
provided by law to be purely personal, survives the
death of a party. Furthermore, as under Rule 39, Section
49 (b) of the Rules of Court, a judgment is binding not
only upon the parties but also on their successors-in-
interest, petitioners are entitled to enforce the decision in
CAR Case No. 2160-B'68.
Private respondent, on the other hand, places stress on
the fact that the action under consideration is not an
ordinary ejectment case but an agrarian case for the
ejectment of an agricultural lessee. She theorizes that
the right being asserted in the action is personal to
Olimpio Bonifacio, which necessarily died with him. She
further contends that the non-substitution of Olimpio
Bonifacio by his heirs rendered the proceedings taken
after his death null and void. She also points to certain
supervening events which allegedly prohibit execution of
the judgment in CAR Case No. 2160-B'68, to wit: the
amendment of Section 36 (1), R.A. 3844 by R.A. No.
6389 and 2) the promulgation of P.D. No. 27.
Private respondent is correct in characterizing CAR
Case No. 2160-B'68 as more than an ordinary ejectment
case. It is, indeed, an agrarian case for the ejectment of
an agricultural lessee, which in the light of the public
policy involved, is more closely and strictly regulated by
the State. This factor, however, does not operate to bar
the application to the instant case of the general rule that
an ejectment case survives the death of a party. 8
Much of the problem lies in the term "personal
cultivation" by which the ground for ejectment under
Section 36 (1) of R.A. 3844 was loosely referred. As it is,
the term gave the impression that the ejectment of an
agricultural lessee was allowed only if and when the
landowner-lessor and no other opted to cultivate the
landholding; thereby giving use to a bigger
misconception that the right of cultivation pertained
exclusively to the landowner-lessor, and therefore his
personal right alone. A reading of Section 36 (1), R.A.
3844 however readily demonstrates the fallacy of this
interpretation. Said section provides:
Sec. 36. Possession of Landholding;
Exceptions. — Notwithstanding any agreement
as to the period or future surrender of the land,
an agricultural lessee shall continue in the
enjoyment and possession of his landholding
except when his dispossession has been
authorized by the Court in a judgment that is
final and executory if after due hearing it is
shown that:
(1) The agricultural lessor-owner or a member of
the immediate family will personally cultivate the
landholding or will convert the landholding, if
suitably located, into residential, factory, hospital
or school site or other useful non-agricultural
purposes . . . .
Under this provision, ejectment of an agricultural lessee
was authorized not only when the landowner-lessor
desired to cultivate the landholding, but also when a
member of his immediate family so desired. In so
providing, the law clearly did not intend to limit the right
of cultivation strictly and personally to the landowner but
to extend the exercise of such right to the members of
his immediate family. Clearly then, the right of cultivation
as a ground for ejectment was not a right exclusive and
personal to the landowner-lessor. To say otherwise
would be to put to naught the right of cultivation likewise
conferred upon the landowner's immediate family
members.
The right of cultivation was extended to the landowner's
immediate family members evidently to place the
landowner-lessor in parity with the agricultural lessee
who was (and still is) allowed to cultivate the land with
the aid of his farm household. In this regard, it must be
observed that an agricultural lessee who cultivates the
landholding with the aid of his immediate farm household
is within the contemplation of the law engaged in
"personal cultivation."
Thus, whether used in reference to the agricultural
lessor or lessee, the term "personal cultivation" cannot
be given a restricted connotation to mean a right
personal and exclusive to either lessor or lessee. In
either case, the right extends to the members of the
lessor's or lessee's immediate family members.
Petitioners are not only the heirs and successors-in-
interest, but the immediate family members of the
deceased landowner-lessor as well. The right to cultivate
the landholding asserted in CAR Case No. 2160-B'68
not being a purely personal right of the deceased
landowner-lessor, the same was transmitted to
petitioners as heirs and successors-in-interest.
Petitioners are entitled to the enforcement of the
judgment in CAR Case No. 2160-B'68.
Rules of procedure make it the duty of the attorney to
inform the court promptly of his client's death, incapacity
or incompetency during the pendency of the action and
to give the name and residence of his executor,
administrator, guardian or other legal representative. 9 In
case of a party's death, the court, if the action survives,
shall then order upon proper notice the legal
representatives of the deceased to appear and to be
substituted for the deceased within a period of 30 days
or within such time as may be granted.10
In the case at bar, Olimpio Bonifacio's death during the
pendency of private respondent's petition was not
communicated to the Court. As ruled by this Court in the
case of Florendo, Jr. vs. Coloma, supra, involving
substantially the same facts and issue:
. . . The petitioners challenge the proceeding in
the Court of Appeals after the death of the
plaintiff-appellant Adela Salindon. They are of
the opinion that since there was no legal
representative substituted for Salindon after her
death, the appellate court lost its jurisdiction
over the case and consequently, the
proceedings in the said court are null and void.
This argument is without merit.
There is no dispute that an ejectment case
survives the death of a party. The supervening
death of plaintiff-appellant Salindon did not
extinguish her civil personality (Republic v.
Bagtas 6 SCRA 242; Vda. de Haberes v. Court
of Appeals, 104 SCRA 534). . . .
xxx xxx xxx
In the case at bar, Salindon's counsel after her
death on December 11, 1976 failed to inform the
court of Salindon's death. The appellate court
 could not be expected to know or take judicial
notice of the death of Salindon without the
proper manifestation from Salindon's counsel. In
such a case and considering that the
supervening death of appellant did not
extinguish her civil personality, the appellate
court was well within its jurisdiction to proceed
as it did with the case. There is no showing that
the appellate court's proceedings in the case
were tainted with irregularities.
Private respondent's challenge against the proceedings
held after Olimpio Bonifacio's death cannot therefore be
heeded.
Neither can private respondent derive comfort from the
amendment of Section 36 (1) of R.A. 3844 by Section 7
of R.A. No. 6389 11 and the promulgation of P.D. No.
27. 12 In Nilo v. Court of Appeals, G.R. No. L-34586,
April 2, 1984,128 SCRA 519, we categorically ruled that
both R.A. No. 6389 and P.D. No. 27 cannot be applied
retroactively under the general rule that statutes have no
retroactive effect unless otherwise provided therein.
There being no cogent reason to nullify the
implementation of the writ of execution in CAR Case No.
2160-B'68, respondent judge acted with grave abuse of
discretion in having done so. The writ prayed for should
issue.
WHEREFORE, the petition is GRANTED. The assailed
resolution dated July 15, 1986 is hereby SET ASIDE.
The immediate execution of the decision in CAR Case
No. 2160-B'68 is ordered. This decision is immediately
executory. No pronouncement as to costs.
SO ORDERED.
Gutierrez, Jr., Bidin and Cortes, JJ., concur.
Feliciano, J., is on leave.

Footnotes
1 Penned by Associate Justice Celso L.
Magsino concurred in by Associate Justices
Serafin E. Camilon and Manuel C. Herrera.
2 Rollo, p. 2.
3 Rollo, p. 25.
4 Decision promulgated on March 6, 1973 in
CA-G.R. No. 46549-R penned by Justice
Antonio G. Lucero and concurred in by then CA
Justices Cecilia Muñoz-Palma and Guillermo S.
Santos.
5 Rollo, p. 35.
6 Rollo, p. 36.
7 Rollo, p. 17.
8 Florendo, Jr. vs. Coloma, G.R. No. 60544,
May 19, 1984, 129 SCRA 304.
9 Sec. 16, Rule 16, Rules of Court.
10 Sec. 17, Rule 3, Rules of Court.
11 Section 36 (1) of R.A. 3844 was amended by
Sec. 7 of R.A. No. 6389 to read:
"(1) The landholding is declared by the
department head upon recommendation of the
National Planning Commission to be suited for
residential, commercial, industrial or some other
urban purposes: Provided, That the agricultural
lessee shall be entitled to disturbance
compensation equivalent to five times the
average of the gross harvests on his landholding
during the last five preceding calendar years,"
thereby eliminating personal cultivation as a
ground for the ejectment of a tenant/lessee.
12 P.D. No. 27 decreed the emancipation of the
tenant from the bondage of the soil, transferred
to him the ownership of the land he tills and
provided for the instruments and mechanisms
for such transfer.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-61388 April 20, 1983
IN THE ISSUANCE OF THE WRIT OF HABEAS
CORPUS FOR DR. AURORA PARONG, NORBERTO
PORTUGUESE, SABINO PADILLA, FRANCIS
DIVINAGRACIA, IMELDA DE LOS SANTOS,
BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO
SORIANO, TITO TANGUILIG, LETTY BALLOGAN,
BIENVENIDA GARCIA, EUFRONIO ORTIZ. JR.,
JUANITO GRANADA and TOM VASQUEZ. JOSEFINA
GARCIA-PADILLA, petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN, FABIAN C.
VER, GEN. FIDEL V. RAMOS, and FIDEL V. RAMOS,
and LT. COL. MIGUEL CORONEL, respondents.
Lorenzo M. Tanada, Jose W. Diokno, Joker P. Arroyo,
Efren M Mercado and Alexander Padilla for petitioner.
The Solicitor General for respondents.

DE CASTRO, J.:
Petition for a writ of habeas corpus and mandamus
seeking the following relief:
WHEREFORE, petitioners pray this Honorable
Court:
1. To immediately issue a writ of habeas corpus
directing respondents to appear and produce the
bodies of Dr. AURORA PARONG, NORBERTO
PORTUGUESE, SABINO PADILLA, FRANCIS
 DIVINAGRACIA, IMELDA DE LOS SANTOS,
BENJAMIN PINEDA, ZENAIDA MALLARI,
MARIANO SORIANO, TITO TANGUILIG,
LETTY BALLOGAN, BIENVENIDA GARCIA,
EUFRONIO ORTIZ, JR., JUANITO GRANADA
and TOM VASQUEZ, forthwith before this
Honorable Court and to make due return of the
writ therewith;
2. To issue, in addition or in the alternative to the
writ of habeas corpus, a writ of mandamus
compelling the respondents to disclose the
petitioners' present place of detention and to
order the respondents to allow counsel and
relatives to visit and confer with the petitioners;
3. Pending the determination of the legality of
their continued detention, to forthwith release
the detainees on bail upon such terms and
conditions as the Court may fix, and after
hearing, to order petitioners' immediate release;
and
4. To grant petitioners such other and further
relief as may be deemed just and equitable in
the premises.
The records show that nine (9) of the fourteen (14)
detainees herein were arrested on July 6, 1982 at about
1:45 p.m. when three (3) teams of the PC/INP of
Bayombong, Nueva Viscaya led by Lt. Col. Coronel, lst
Lt. de Guzman and lst Lt. Baria, after securing a Search
Warrant No. S-82 issued by Judge Sofronio Sayo of the
Court of First Instance of Nueva Viscaya conducted a
raid at the residence of Dra. Aurora Parong.
Apprehended during the said raid were Dra. Aurora
Parong, Benjamin Pineda, Sabino Padilla, Francisco
Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto
Portuguese, and Mariano Soriano who were then having
a conference in the dining room of Dra. Parong's
residence which had been doing on since 10:00 a.m. of
that same day.
The other four (4) detainees herein, namely: Imelda de
los Santos, Eufronio Ortiz, Jr., Juanita Granada, and
Bienvenida Garcia, were arrested on the following day,
July 7, 1982 by the same PC teams.
On July 15, 1982, Tom Vasquez was arrested, and his
Volkswagen car, bearing Plate No. DAP 347, was seized
by the PC authorities.
The herein fourteen (14) detainees (hereafter referred to
sometimes as petitioners) were all detained at the
PC/INP Command Headquarters, Bayombong, Nueva
Vizcaya from July 6, 1982 until their transfer on the
morning of August 10, 1982 to an undisclosed place
reportedly to Camp Crame, Quezon City, to Echague,
Isabela, and to Tuguegarao, Cagayan.
Hence, this petition for the writ of habeas corpus and
mandamus filed by Josefina Garcia-Padilla, mother of
detained petitioner Sabino G. Padilla, Jr. on August 13,
1982. The mandamus aspect of the instant petition has,
however, become moot and academic, and whereabouts
of petitioners having already become known to petitioner
Josefina Garcia-Padilla.
It is alleged in the petition that the arrest of petitioners
was patently unlawful and illegal since it was effected
without any warrant of arrest; that the PC/INP raiding
team which made the arrest were only armed with a
search warrant (No. 3-82) issued by Judge Sofronio G.
Sayo of the Court of First Instance of Nueva Viscaya,
and nowhere in said warrant was authority given to
make arrests, much less detention; that the search
warrant which authorized respondents to seize
"subversive documents, firearms of assorted calibers,
medicine and other subversive paraphernalia" in the
house and clinic of Dra. Aurora Parong was a roving and
general warrant and is, therefore, illegal per se because
it does not state specifically the things that are to be
seized (Stonehill vs. Diokno, 20 SCRA 383); that no
criminal charges have as of yet been filed against any of
the detainees; that the fourteen (14) detainees were
initially held at the PC/INP Command in Bayombong,
Nueva Viscaya from July 6 up to August 10, 1982, but
were subsequently transferred by helicopter in the
morning of August 10, 1982 to a place or safehouse
known only to respondents; that there is no judgment,
decree, decision or order from a court of law which
would validate the continued detention of the petitioner;
that while it is true that a purported telegram stating the
issuance of a Presidential Commitment Order (PCO)
was shown to the detainees on or about July 11 and 12,
1982, but counsel and the detainees have not yet been
given a copy of such PCO nor notified of its contents,
raising a doubt whether such commitment order has in
fact been issued.
It is further alleged that respondents are denying the
detainees their constitutional right to counsel, averring
that the detainees were allowed regular visits by counsel
and relatives during their period of detention from July 6
to August 10, 1982 at the PC/INP Command in
Bayombong, Nueva Viscaya; however, when a certain
Major Cristobal and Lt. Marcos (alleged to be from the
Camp Crame Intelligence Units) took full control of the
investigation, counsels were allowed to visit only on
weekends; that when the detainees were transferred on
August 10, 1982 to a place known only to respondents,
the detainees' counsels and relatives were not notified,
raising the apprehension that petitioners' constitutional
rights to silence, to counsel and against self-
incrimination are being violated; that counsels have tried
to locate if the detainees were taken to Camp Crame or
Camp Bago Bantay but to no avail; that Major Forondo
of the PC Command in Nueva Viscaya informed Mrs.
Josefina Padilla that the detainees were transferred to
Tuguegarao, Cagayan, others to Echague, Isabela; that
there seems to be a deliberate and concerted effort by
respondents to conceal from counsel and relatives the
detainees' place of detention, raising the apprehension
that respondents are using force, violence, threat,
intimidation and other means which vitiate free will to
obtain confession and statements from the detainees in
violation of their constitutional rights.
In the resolution of this Court en banc dated August 17,
1982, the writ of habeas corpus was issued and
respondents were required to make a return of the writ.
Hearing on the petition was set on August 26, 1982.
In the return to the writ filed on August 23, 1982.
respondents, through the Solicitor General, alleged, to
wit:
I. AS TO HABEAS CORPUS
1. The detainees mentioned in the petition, with
the exception of Tom Vasquez who was
temporarily released on July 17, 1982, after his
arrest on July 15, 1982, are all being detained
by virtue of a Presidential Commitment Order
(PCO) issued on July 12, 1982, pursuant to LOI
No. 1211 dated March 9, 1982, in relation to
Presidential Proclamation No. 2045 dated
January 17, 1981. The said PCO was issued by
President Ferdinand E. Marcos for violation of
P.D. No. 885. ...
2. The corresponding charges against the said
detainees have been filed in court and before
the Acting Provincial Fiscal of Nueva Viscaya
where they are pleading. A warrant of arrest
against detainee Dra. Aurora Parong was issued
on August 4, 1982, by the Municipal Court of
Bayombong, for illegal possession of firearm
and ammunition. ...
II. AFFIRMATIVE DEFENSE ON HABEAS
CORPUS
3. The persons named in the above-mentioned
Presidential Commitment Order were arrested
and are being detained for offenses with respect
to which under Proclamation No. 2045, the
privilege of the writ of habeas corpus continues
to be suspended, thus:
NOW, THEREFORE, I, FERDINAND E.
MARCOS, President/Prime Minister of
the Philippines, by virtue of the powers
vested in me by the Constitution, do
hereby revoke Proclamation No. 1081
(Proclaiming a state of Martial Law in
the Philippines) and Proclamation No.
1104 (Declaring the Continuation of
Martial Law) and proclaim the
termination of the state of martial law
throughout the Philippines; Provided,
that the call to the Armed Forces of the
Philippines to prevent or suppress
lawless violence, insurrection, rebellion
and subversion shall continue to be in
force and effect; and Provided that in
the two autonomous regions in
Mindanao, upon the request of the
residents therein, the suspension of the
privilege of the writ of habeas corpus
shag continue; and in all other places
the suspension of the privilege of the
 writ shall also continue with respect to
persons at present detained as well as
others who may hereafter be similarly
detained for the crimes of insurrection or
rebellion, subversion, conspiracy or
proposals to commit such crimes, and
for all other crimes and offenses
committed by them in furtherance or on
the occasion thereof, or incident thereto,
or in connection therewith. (Emphasis
supplied)
The privilege of the writ of habeas corpus is
unavailing as to them. Courts cannot inquire into
the validity and cause of their arrest and
detention.
4. The power of the President in an emergency,
such as that which necessitated the continued
suspension of the privilege of the writ of habeas
corpus, to order the detention of persons
believed engaged in crimes related to national
security is recognized. (Aquino vs. Enrile, 59
SCRA 83; Luneta, et al. vs. Special Military
Commission, No. 1, et al., 102 SCRA 56).
5. In the instant petition, petitioner Josefina
Garcia-Padilla does not appear to have been
authorized by the thirteen (13) other detainees
to represent them in the case at bar."
Accordingly, the petition was duly heard on August 26,
1982. After hearing, the Court issued the following
resolution, to wit:
G.R. No. 61388 (In the Matter of the Petition for
the Insurance of the Writ of Habeas Corpus of
Dr. Aurora Parong, Norberto Portuguese,
Sabino Padilla, Francis Divinagracia, Imelda de
 los Santos, Benjamin Pineda, Zenaida Mallari,
Mariano Soriano, Tito Tanguilig, Letty Ballogan,
Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito
Granada and Tom Vasquez; Josefina Garcia-
Padilla vs. Minister Juan Ponce Enrile, Gen.
Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col.
Miguel Coronel.)- The return of the writ of
habeas corpus and answer to the prayer for
mandamus filed by the Solicitor General for
respondents in compliance with the resolution of
August 17, 1982 is NOTED.
At the hearing of this case this morning, former
Senator Jose W. Diokno, Attorneys Alexander A.
Padilla and Efren H. Mercado appeared for
petitioner. Solicitor General Estelito P. Mendoza
and Assistant Solicitor General Ramon A.
Barcelona, appeared for the respondents. All of
the detainees, except Tom Vasquez, who was
temporarily released on July 17, 1982, were
present in Court; Dr. Aurora Parong, Norberto
Portuguese, Sabino Padilla, Francis
Divinagracia, Imelda de los Santos, Benjamin
Pineda, Zenaida Mallari, Mariano Soriano, Tito
Tanguilig, Letty Ballogan, Bienvenida Garcia,
Eufronio Ortiz, Jr. and Juanito Granada.
Attorney Alexander A. Padilla argued for the
petitioner. Solicitor General Mendoza argued for
the respondents. Former Senator Diokno argued
in the rebuttal. The Court Resolved to require
the Solicitor General to SUBMIT within five (5)
days from date the documents relevant to the
issuance of the Presidential Commitment Order.
Thereafter, the case shall be considered
SUBMITTED for resolution.
As required, the Solicitor General submitted the
documents relevant to the issuance of the Presidential
Commitment Order on August 27, 1982, after which the
case was submitted for resolution.
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.
1. At the time of the arrest of the nine (9) of the fourteen
(14) detainees herein on July 6, 1982, records reveal
that they were then having conference in the dining room
of Dra. Parong's residence from 10:00 a.m. of that same
day. Prior thereto, all the fourteen (14) detainees were
under surveillance as they were then Identified as
members of the Communist Party of the Philippines
(CPP) engaging in subversive activities and using the
house of detainee Dra. Aurora Parong in Bayombong,
Nueva Viscaya, as their headquarters. 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. There is no
doubt that circumstances attendant in the arrest of the
herein detainees fall under a situation where arrest is
lawful even without a judicial warrant as specifically
provided for under Section 6(a), Rule 113 of the Rules of
Court and allowed under existing jurisprudence on the
matter. As provided therein, a peace officer or a private
person may, without a warrant, arrest a person when the
person to be arrested has committed or actually
committing, or is about to commit an offense in his
presence.
2. The arrest of persons involved in the rebellion whether
as its fighting armed elements, or for committing non-
violent acts but in furtherance of the rebellion, is more an
act of capturing them in the course of an armed conflict,
to quell the rebellion, than for the purpose of immediately
prosecuting them in court for a statutory offense. 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. In the language
of Moyer vs. Peabody, 1 cited with approval in Aquino, et
al. vs. Ponce Enrile, 2 the President " 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."
Thus characterized, the arrest and detention of persons
ordered by the President through the issuance of
Presidential Commitment Order PCO is merely
preventive. "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.
3. Transcendentally important, therefore, is the question
of whether the issuance of a Presidential Commitment
Order (PCO) has provided the legal basis of the
detention of herein detainees following their arrest for
Proclamation No. 2045 covered offenses. This question
has to be set at rest promptly and decisively, if We are to
break a seemingly continuous flow of petitions for
habeas corpus, as what had been seen lately of such
petitioners being filed in this Court one after the other.
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. 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.
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 presidential responsibility is one attended with all
urgency when so grave a peril to the life of the Nation
besets the country in times of the aforementioned
contingencies. In the discharge of this awesome and
sacred responsibility, the President should be free from
interference. The existence of warlike conditions as are
created by invasion, rebellion or insurrection, the direst
of all emergencies that can possibly confront a nation,
argues, beyond dispute, against subjecting his actions in
this regard to judicial inquiry or interference from
whatever source. If freedom from judicial review is
conceded in the exercise of his peacetime powers as
that of appointment and of granting pardon,
denominated as political powers of the President, it
should incontestably be more so with his wartime power,
as it were, to adopt any measure in dealing with
situations calling for military action as in case of
invasion, rebellion or insurrection.
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.
4. From the clear language of the Lansang case, 4 "the
function of Court is merely to check — not to supplant —
the Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine
the wisdom of his act. " If, however, the constitutional
right to bail is granted to the herein petitioners by the
court, through the procedure laid down under Rule 114
of the Rules of court, what inevitably results is the
supplanting of the decision of the President to detain
pursuant to Proclamation No. 2045, of persons who
come under its coverage.
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.
So it is that Proclamation No. 2045 mentions not only
rebellion or insurrection as coming within the suspension
of the privilege of the writ of habeas corpus, but also
other offenses, including subversion which is not
mentioned in the Constitution, committed by reason or
on the occasion of the rebellion, or in connection
therewith, or in the furtherance thereof. There need be
no alarm over what libertarian jurists fear as violation of
the constitutional right to personal liberty when the
President decrees the suspension of the privilege of
habeas corpus. Only those who give cause for it will be
subject to restriction of their liberty, as the necessity
therefor arises in the interest of national defense and
survival. The constitutional guarantee of individual
freedom is intact in all its plenitude and sanctity, save
only as the Constitution has envisioned the need for its
limitation, and only to a few, in relation to the entire
population, as the Constitution itself permits in case of
overwhelming and imperious necessity.
5. Worthy of profound notice and keen appreciation is
the fact that the authority to suspend the privilege of the
writ of habeas corpus has been deliberately vested on
the President as the Commander-in-Chief of the armed
forces, together with the related power to call out the
armed forces to suppress lawless violence and impose
martial law. 5The choice could not have been more wise
and sound, for no other official may, with equal capability
and fitness, be entrusted with the grave responsibility
that goes with the grant of the authority. The legislature
was considered in the alternative upon which to lodge
the power, or to share in its exercise, but the distilled
wisdom of the Constitutional Convention finally made its
choice for the President alone.
As previously noted, "invasion" which is not a statutorily-
defined offense and "imminent danger thereof" as
mentioned in the Constitution indicate that "rebellion and
insurrection" are also mentioned therein not in their
concept as statutorily-defined public crimes, but as a
state or condition of extreme emergency resulting from
the existence of the aforesaid events. 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." 6 This clearly means denial of the right to
be released on bail on being charged in court with
bailable offenses.
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. 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.
Realistically, a person engaged in the rebellion does not,
upon being arrested or captured, cease to be as
committed to the cause of the movement. Through a
grand conspiracy, as is of the essence of how rebellion
is committed, involving a great mass of confederates
bound together by a common goal, he remains in a state
of continued participation in the criminal act or design.
His heart still beats with the same emotion for the
success of the movement of which he continues to be an
ardent adherent and ally. It is simple logic then to hold
that there should be no legal compulsion for a captured
rebel to be charged in court, only to be released on bail,
while he is, realistically and legally, still as much as part
and parcel of the movement, continuing as it is, as those
still engaged in carrying on actively to attain their goal of
overthrowing the established regime. Hence, it is easy to
perceive how impressed with absolute verity is the
opinion expressed by two acknowledged authorities on
Constitutional law in our country, 7 which We quote:
... If the return to the writ shows that the person
in custody was apprehended and detained in
areas where the privileges of the writ have been
suspended or for the crimes mentioned in the
executive proclamation, the court will suspend
further proceedings in the action.
Impeccable as it is, the opinion could not but find a
resonant echo as it did in the recent case of Buscayno
vs. Military Commission; 8 decided after Proclamation
No. 2045 was issued, which in terms clear and
categorical, held that the constitutional right to bail is
unavailing when the privilege of the writ of habeas
corpus is suspended with respect to certain crimes as
enumerated or described in the abovementioned
Proclamation.
It is, likewise, all too well-known that when the rebel
forces capture government troopers or kidnap private
individuals, they do not accord to them any of the rights
now being demanded by the herein petitioners,
particularly to be set at liberty upon the filing of bail. As a
matter of common knowledge, captives of the rebels or
insurgents are not only not given the right to be
released, but also denied trial of any kind. In some
instances, they may even be liquidated
unceremoniously. What is then sought by the
suspension of the privilege of the writ of habeas corpus
is, among others, to put the government forces on equal
fighting terms with the rebels, by authorizing the
detention of their own rebel or dissident captives as the
rebellion goes on. In this way, the advantage the
rebellion forces have over those of the government, as
when they resort to guerilla tactics with sophisticated
weapons, is, at least, minimized, thereby enhancing the
latter's chances of beating their enemy. 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.
6. Invoking the Lansang case, 9 however, petitioners
would ask this Court to review the issuance of the PCO
against them, intimating that arbitrariness attended its
issuance because, relying on the evidence supposedly
available in the hands of the military, they claim they are
not guilty of rebellion. They also contend that the
provisions of LOI No. 1211 have not been complied with.
The Lansang case went no further than to pronounce the
suspension of the writ of the privilege of habeas corpus
on August 21, 1971, valid and constitutional, on a finding
that there was no arbitrariness attendant to the
suspension. It never intended to suggest that for every
individual case of arrest and detention, the writ of
habeas corpus is available, even after the suspension of
this privilege, to question the legality of the arrest and
detention on ground of arbitrariness. 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. The law has afforded 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. 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 doubtlessly realized
how hardly possible it is to adduce evidence or proof
upon which to show the President having acted with
arbitrariness.
7. The last question relates to the legality of the
Presidential Commitment Order (PCO) issued by the
President on July 12, 1982, tested by the conformity of
its issuance to the procedure laid down under LOI 1211,
petitioners insisting that the LOI limits the authority of the
President to cause the arrest and detention of persons
engaged in or charged with, the crimes mentioned in
Proclamation No. 2045. They contend that the procedure
prescribed in the LOI not having been observed, the
PCO issued thereunder did not validate the initial illegal
arrest of the herein petitioners as wen as their continued
detention.
It must be noted that LOI No. 1211, which provides the
guidelines in the arrest and detention of persons
engaged in, or charged with, the crimes mentioned in
Proclamation No. 2045, charged with, the crimes
mentioned contemplates of three situations when an
arrest can be made, to wit:
1. The arrest and detention effected by virtue of
a warrant issued by a judge;
2. The arrest and detention effected by a military
commander or the head of a law enforcement
agency after it is determined that the person or
persons to be arrested would probably escape
or commit further acts which would endanger
public order and safety. After the arrest,
however, the case shall be immediately referred
to the city or provincial fiscal or to the municipal,
city, circuit, or district judge for preliminary
examination or investigation who, if the evidence
warrants, shall file the corresponding charges
and, thereafter, we a warrant of arrest;
3. The military commander or the head of the
law enforcement agency may apply to the
President thru the Minister of National Defense,
for a Presidential Commitment Order under the
following circumstances:
(a) When resort to judicial process is not
possible or expedient without
endangering public order and safety; or
(b) When the release on bail of the
person or persons already under
arrest by virtue of a judicial warrant
would endanger said public order and
safety.
Petitioners appear to place entire reliance on paragraphs
1 and 2 of LOI No. 1211, ignoring paragraph 3 of LOI
No. 1211, which provides:
3. The above notwithstanding, the military
commander or the head of the law enforcement
agency may apply to the President thru the
Minister of National Defense, for a Presidential
Commitment Order covering the person or
persons believed to be participants in the
commission of the crimes referred to in
paragraph 1 under the following circumstances:
(a) When resort to judicial process is not
possible or expedient without
endangering public order and safety; or
(b) When the release on bail of the
person or persons already under arrest
by virtue of a judicial warrant would
endanger said public order and safety.
The reliance of petitioners on paragraphs 1 and 2 of LOI
1211 as to the alleged necessity of judicial warrant
before a person may be arrested and detained is not
well-founded. Neither is the contention that paragraph 3
of LOI 1211 applies only when judicial process is not
possible. This is a narrow and constricted interpretation
of LOI 1211 when viewed in its entirety. Even in
instances when a resort to judicial process is possible,
where, in the judgment of the President, a resort thereto
would not be expedient because it would endanger the
public order or safety, a PCO is justified. So, too, when
release on bail in the ordinary judicial process will invite
the same danger.
By its very nature, and clearly by its language, LOI 1211
is a mere directive of the President as Commander-in-
Chief of the Armed Forces of the Philippines to his
subordinates or implementing officers for the ultimate
objective of providing guidelines in the arrest and
detention of the persons covered by Presidential
Proclamation No. 2045. The purpose is "to insure
protection to individual liberties without sacrificing the
requirements of public order and safety and the
effectiveness of the campaign against those seeking the
forcible overthrow of the government and duty
constituted authorities. " LOI 1211 does not, in any
manner, limit the authority of the President to cause the
arrest and detention of persons engaged in, or charged
with the crimes or offenses mentioned in said
Proclamation in that he (President) would subject himself
to the superior authority of the judge who, under normal
judicial processes in the prosecution of the common
offenses, is the one authorized to issue a judicial warrant
after a preliminary investigation is conducted with a
finding of probable cause. Those who would read such
an intention on the part of the President in issuing LOI
1211 seems to do so in their view that LOI forms part of
the law of the land under the 1976 amendment of the
Constitution. 10 They would then contend that a PCO
issued not in compliance with the provisions of the LOI
would be an illegality and of no effect.
To form part of the law of the land, the decree, order or
LOI must be issued by the President in the exercise of
his extraordinary power of legislation as contemplated in
Section 6 of the 1976 amendments to the Constitution,
whenever in his judgment, there exists a grave
emergency or a threat or imminence thereof, or
whenever the interim Batasan Pambansa or the regular
National Assembly fails or is unable to act adequately on
any matter for any reason that in his judgment requires
immediate action. There can be no pretense, much less
a showing, that these conditions prompted the President
to issue LOI 1211. Verily, not all LOI issued by the
President should be dignified into forming part of the law
of the land.
In the event then that the judge believes no warrant shall
issue, the President, under Presidential Proclamation
No. 2045 and Letter of Instruction No. 1211, is not bound
by such finding, as explicitly provided in paragraph 2 of
LOI 1211. That the President avails of the facilities of the
judicial machinery, as is the clear intent of LOI 1211, to
aid him in exercising his power to restrain personal
liberty, as dictated by the necessities and exigencies of
the emergency, does not indicate any intention on his
part to renounce or to allow even mere curtailment of his
power such that the judicial process will thereupon take
its normal course, under which the detainees or accused
would then be entitled to demand their right of due
process, particularly in relation to their personal
liberty. 11 The issuance of the PCO by the President
necessarily constitutes a finding that the conditions he
has prescribed in LOI 1211 for the issuance of that PCO
have been met, and intends that the detention would be
pursuant to the executive process incident to the
government campaign against the rebels, subversives
and dissidents waging a rebellion or insurrection. The
ruling in the Nava vs. Gatmaitan case,* as above
intimated, must have shown him that to prosecute the
offense through the judicial process of forthwith instead
of deferring it, would neither be wise nor expedient if he
were to deal effectively with the grave emergency at
hand.
What has been said above shows the need of
reexamining the Lansang case with a view to reverting to
the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905
decision, and Montenegro vs. Castaneda, 91 Phil. 882
(1952), that the President's decision to suspend the
privilege of the writ of habeas corpus is "final and
conclusive upon the courts, and all other persons." This
well-settled ruling was diluted in the Lansang case which
declared that the "function of the Court is merely to
check — not to supplant — the Executive, or ascertain
merely whether he has gone beyond the constitutional
limits of his jurisdiction not to exercise the power vested
in him or to determine the wisdom of his act." 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.
In his separate opinion in the Lansang case, then Justice
Fernando, now our learned Chief Justice, went along
with the proposition that the decision of the Executive in
the exercise of his power to suspend the privilege of the
writ of habeas corpus is his alone, and in his own
language, is "ordinarily beyond the ken of the Courts."
This is so, as the Founding Fathers must have felt that in
the particular situations at hand, the Executive and the
Judiciary should maintain a mutually deferential attitude.
This is the very essence of the doctrine of "political
question, " as determining the justiciability of a case. The
wisdom of this concept remains well-recognized in
advanced constitutional systems. To erase it from our
own system as seems to be what was done in the
Lansang case, may neither be proper nor prudent. A
good example could be given in the exercise of the
presidential power of pardon which is beyond judicial
review, specially under the new Constitution where the
condition that it may be granted only after final conviction
has been done away with.
True, the Constitution is the law "equally in war and in
peace," 12 as Chief Justice Fernando cited in his brilliant
separate opinion in the same Lansang case. Precisely, it
is the Constitution that gives the President specific
"military power" in times of warlike conditions as exist on
the occasion of invasion, insurrection or rebellion. Both
power and right are constitutionally granted, with the
difference that the guarantee of the right to liberty is for
personal benefit, while the grant of the presidential
power is for public safety. Which of the two enjoys
primacy over the other is all too obvious. 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 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. The Founding Fathers, with admirable foresight
and vision, inserted provisions therein that come into
play and application in time of war or similar
emergencies. So it is that, as proclaimed by the
Constitution, the defense of the State is a prime duty of
government. Compulsory military service may be
imposed, certainly a mandate that derogates on the right
to personal liberty. 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.
In times of war or national emergency, the legislature
may surrender a part of its power of legislation to the
President. 13 Would it not be as proper and wholly
acceptable to lay down the principle that during such
crises, the judiciary should be less jealous of its power
and more trusting of the Executive in the exercise of its
emergency powers in recognition of the same necessity?
Verily, the existence of the emergencies should be left to
President's sole and unfettered determination. His
exercise of the power to suspend the privilege of the writ
of habeas corpus on the occasion thereof, should also
be beyond judicial review. Arbitrariness, as a ground for
judicial inquiry of presidential acts and decisions, sounds
good in theory but impractical and unrealistic,
considering how well-nigh impossible it is for the courts
to contradict the finding of the President on the existence
of the emergency that gives occasion for the exercise of
the power to suspend the privilege of the writ. For the
Court to insist on reviewing Presidential action on the
ground of arbitrariness may only result in a violent
collision of two jealous powers with tragic
consequences, by all means to be avoided, in favor of
adhering to the more desirable and long-tested doctrine
of "political question" in reference to the power of judicial
review. 14
Amendment No. 6 of the 1973 Constitution, as earlier
cited, affords further reason for the reexamination of the
Lansang doctrine and reversion to that of Barcelon vs.
Baker and Montenegro vs. Castaneda.
Accordingly, We hold that in times of war and similar
emergency as expressly provided in the Constitution, the
President may suspend the privilege of the writ of
habeas corpus, which has the effect of allowing the
Executive to defer the prosecution of any of the offenses
covered by Proclamation No. 2045, including, as a
necessary consequence, the withholding for the duration
of the suspension of the privilege, of the right to bail. The
power could have been vested in Congress, instead of
the President, as it was so vested in the United States
for which reason, when President Lincoln himself
exercised the power in 1861, Chief Justice Taney of the
U.S. Supreme Court expressed the opinion that
Congress alone possessed this power under the
Constitutional., 15 Incidentally, it seems unimaginable
that the judiciary could subject the suspension, if
decreed through congressional action, to the same
inquiry as our Supreme Court did with the act of the
President, in the Lansang case, to determine if the
Congress acted with arbitrariness.
We further hold that under LOI 1211, a Presidential
Commitment Order, the issuance of which is the
exclusive prerogative of the President under the
Constitution, may not be declared void by the courts,
under the doctrine of "political question," as has been
applied in the Baker and Castaneda cases, on any
ground, let alone its supposed violation of the provision
of LOI 1211, thus diluting, if not abandoning the doctrine
of the Lansang case. The supreme mandate received by
the President from the people and his oath to do justice
to every man should be sufficient guarantee, without
need of judicial overseeing, against commission by him
of an act of arbitrariness in the discharge particularly of
those duties imposed upon him for the protection of
public safety which in itself includes the protection of life,
liberty and property. This Court is not possessed with the
attribute of infallibility that when it reviews the acts of the
President in the exercise of his exclusive power, for
possible fault of arbitrariness, it would not itself go so far
as to commit the self-same fault.
Finally, We hold that upon the issuance of the
Presidential Commitment Order against herein
petitioners, their continued detention is rendered valid
and legal, and their right to be released even after the
filing of charges against them in court, to depend on the
President, who may order the release of a detainee or
his being placed under house arrest, as he has done in
meritorious cases.
WHEREFORE, the instant petition should be, as it is
hereby dismissed.
SO ORDERED.
Guerrero, Plana, Escolin, Vasquez, Relova and
Gutierrez, Jr., JJ., concur.
Concepcion, Jr. and Melencio-Herrera, JJ., concur in the
result.
Aquino, J., is on leave.

Separate Opinions

FERNANDO, C.J., concurring:

In the result with qualification primarily on the respect
that must be accorded the constitutional right to bail
once a case is flied and dissenting as to the overruling
of Lansang v. Garcia:
MAKASIAR, J., concurring:
Concuring in the result and in overruling the Lansang
case.
ABAD SANTOS, J., concurring:
In the result and in overruling Lansang. I reserve my
right on the question of bail.
FERNANDO, C.J., concurring:
Concurring in the result with qualification primarily on the
respect that must be accorded the constitutional right to
bail once a case is filed and dissenting as to the
overruling of Lansang v. Garcia.
It does not admit of doubt that the question posed in this
petition for the writ of habeas corpus, and in other similar
petitions for that matter, is impressed with significance
that calls for the highest degree of care and
circumspection. The result arrived at by the Court is that
once a presidential commitment order is issued, the
detention is rendered valid and legal, the right to be
released of the person detained even after the filing of
charges being dependent on the President "who may
order the release of a detainee or his being placed under
house arrest, as he has done in meritorious
cases." 1 The exhaustive opinion of the Court penned by
Justice de Castro likewise re-examines the Lansang
doctrine 2 which ruled that the suspension of the
privilege of the writ of habeas corpus raises a judicial
rather than a political question and reverts to the
principle announced in the earlier cases of Barcelon v.
Baker 3 and Montenegro v. Castañeda, 4 both of which
held that the question raised is political in character.
I concur in the ruling that while as a general rule
preventive detention is an obstacle to judicial inquiry, this
Court is empowered where compelling reasons exist to
inquire into the matter. Moreover, the judiciary once a
case has been filed has jurisdiction to act on a petition
for bail. I dissent insofar as the decision
overrules Lansang v. Garcia.
1. Petitioners in their application for the writ of liberty
assert an infringement of a right that finds shelter in the
fundamental law. This Court, both in normal times and
under emergency conditions, is not susceptible to the
accusation that it has not accorded the most careful
study to a plea of such character. Petitioners were heard
and their cases decided. In addition to Lansang, People
v. Ferrer, 5 Aquino Jr. v. Ponce Enrile 6 and Aquino Jr. v.
Military Commission No. 2 7 may be cited. This Tribunal
then has not been insensible to its duty to render fealty
to the applicable mandates of the Constitution. That is to
be true to the primordial concept first announced in the
landmark decision of Marbury v. Madison, 8 the opinion
being rendered by the illustrious Chief Justice Marshall,
enunciating the principle of judicial review. Our
Constitution is quite clear on the matter. So it was held
in Angara v. Electoral Tribunal, 9 the first case of
transcendental importance under the 1935 Charter. It is
quite manifest that judicial review is not only a power but
a duty. 10
2. Thus the judiciary can be appealed to and in
appropriate cases, annul executive or legislative acts.
For as so often stressed, "the Constitution is not only
law, but a higher law, to which other law must
bow." 11 Professor Black went on to state: "Here, I think,
we are laboring the obvious. The superior status of the
Constitution is clearer even than its standing as law. But
if it is of superior status, and if it is law, then it is law of a
superior status. Again, the important thing is not whether
some flaw could be found in the logic by which this was
established. The logic of human institutions is a logic of
probability. The important thing is that this concept of the
superior status of the Constitution as law very early
became and has since continued to be a standard part
of the way in which the American lawyer and judge and
citizen look at their government." 12 This is not to deny
the possibility of judicial interference with policy
formulation, better left to the political branches. It is an
entirely different matter of course where the question is
one of liberty.
3. An inquiry into the validity of executive or legislative
act has been fitly characterized as both awesome and
delicate. Nonetheless, for the judiciary, there is no
choice. To repeat, it is a duty to be performed. This is so
especially where the writ of habeas corpus has been
invoked. It is then incumbent on a court to pass on the
legality of the detention. As I had occasion to state in my
separate opinion in Aquino Jr. vs. Enrile: 13 "This Court
has to act then. The liberty enshrined in the Constitution,
for the protection of which habeas corpus is the
appropriate remedy, imposes that obligation. Its task is
clear. It must be performed. That is a trust to which it
cannot be recreant. Whenever the grievance complained
of is deprivation of liberty, it is its responsibility to inquire
into the matter and to render the decision appropriate
under the circumstances. Precisely, a habeas corpus
petition calls for that response." 14 It cannot be
overemphasized that the writ of habeas corpus, as a
constitutional right, it, for eminent commentators,
protean in scope. A reference to the opinion of the Court
in Gumabon v. Director of Bureau of Prisons 15 may not
be amiss. Thus: "The writ imposes on judges the grave
responsibility of ascertaining whether there is any legal
justification for a deprivation of physical freedom. Unless
there be such a showing, the confinement must thereby
cease. " 16 It continues: "Rightly then could Chafee refer
to the writ as 'The most important human rights
provision' in the fundamental law. Nor is such praise
unique. Cooley spoke of it as 'One of the principal
safeguards to personal liberty.' For Willoughby, it is 'the
greatest of the safeguards erected by the civil law
against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered.'
Burdick echoed a similar sentiment, referring to it as
'One of the most important bulwarks of liberty.' Fraenkel
made it unanimous, for to him. 'Without it much else
would be of no avail.' Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of
habeas corpus in the defense of liberty coupled with its
limitations may be detected in the opinions of former
Chief Justices Arellano, Avancena, Abad Santos, Paras,
Bengzon and [Chief Justice Concepcion]. It fell to Justice
Malcolm's lot, however to emphasize quite a few times
the breadth of its amplitude and of its reach."17
4. So it is in the United States. As so well put by Justice
Brennan in Fay v. Noia: 18 "We do well to bear in mind
the extraordinary prestige of the Great Writ, habeas
corpus ad subjiciendum, in Anglo-American
jurisprudence: 'the most celebrated writ in English Law,'
3 Blackstone Commentaries 129. It is 'a writ antecedent
to statute, and throwing its root deep into the genius of
our common law * * *. It is perhaps the most important
writ known to the constitutional law of England, affording
as it does a swift and imperative remedy in all cases of
illegal restraint and confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-
third year of Edward I. 'Secretary of State for Home
Affairs v. O'Brien [1923] AC 603, 609 (HL) Received into
our own law in the colonial period, given explicit
recognition in the Federal Constitution, Art. I, Sec. 9, cl.
2, incorporated in the first grant of federal court
jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1
State 81, 82, habeas corpus was earlier confirmed by
Chief Justice John Marshall to be a 'Great constitutional
privilege.' Ex parte Bollman and Swartout (US) 4 Cranch
75, 95, 2L ed 554, 561. Only two Terms ago this Court
had occasion to reaffirm the high place of the writ in our
jurisprudence: 'We repeat what has been so truly said of
the federal writ: "there is no higher duty than to maintain
it unimpaired," Bowen v. Johnston, 306 US 19, 26, 83 L
ed 455, 461, 59 S Ct 442 (1939), and unsuspended,
save only in the cases specified in our Constitution.'
Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81
s Ct. 895. " 19
5. To repeat, it is the ruling of this Court that an issuance
of a presidential commitment order imparts validity to a
detention the right to be released of the person detained
even after the filing of charges being dependent on the
President who may order such release or his being
placed under house arrest. As I mentioned at the outset,
I yield a qualified concurrence. The power of preventive
detention where the privilege of the writ of habeas
corpus is suspended has been recognized. 20 The lifting
of martial law unfortunately has not been followed by a
restoration of peace and order in certain sections of the
country. In the proclamation lifting martial law, the last
paragraph of the whereas clause spoke of the
awareness of the government and the Filipino people of
public safety continuing "to require a degree of capability
to deal adequately with elements who persist in
endeavoring to overthrow the government by violent
means and exploiting every opportunity to disrupt [its]
peaceful and productive" efforts. 21Accordingly, in
terminating the state of martial law throughout the
Philippines, it was provided: "that the call to the Armed
Forces of the Philippines to prevent or suppress lawless
violence, insurrection, rebellion and subversion shall
continue to be in force and effect; and Provided that in
the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the
privileges of the writ of habeas corpus shall continue;
and in all other places the suspension of the privilege of
the writ shall also continue with respect to persons at
present detained as well as others who may hereafter be
similarly detained for the crimes of insurrection or
rebellion, subversion; conspiracy or proposal to commit
such crimes and for all other crimes and offenses
committed by them in furtherance or on the occasion
thereof, or incident thereto, or in connection therewith; *
* *." 22 That is the basis for the preventive detention of
petitioners in this case.
6. The President as commander-in-chief may call out the
armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion and in case of
invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, "may suspend
the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial
law."23 There are thus three alternatives which may be
availed to meet a grave public danger to the security of
the state. As pointed out by Chief Justice Concepcion in
Lansang, prior to the suspension of the privilege of the
writ in 1971, the armed forces had been called out, but
such a move "proved inadequate to attain the desired
result. Of the two (2) other alternatives, the suspension
of the privilege is the least harsh." 24 Even if only the first
alternative were resorted to, the executive could still
exercise the power of preventive detention. Moyer v.
Peabody, 25 decided by the American Supreme Court,
the opinion being penned by Justice Holmes, may be
cited. According to the statement of the facts of that
case, "it appeared that the governor had declared a
county to be in a state of insurrection, had called out
troops to put down the trouble, and had ordered that the
plaintiff should be arrested as a leader of the outbreak,
and should be detained until he could be discharged with
safety, and that then he should be delivered to the civil
authorities, to be dealt with according to law." 26 On
those facts the American Supreme Court held that
preventive detention was allowable, the test of its validity
being one of good faith. The state governor then could
"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." 27 The last
paragraph of Justice Holmes opinion was even more
emphatic: "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. This was admitted with regard to killing men in the
actual clash of arms; and we think it obvious, although it
was disputed, that the same is true of temporary
detention to prevent apprehended harm. As no one
would deny that there was immunity for ordering a
company to fire upon a mob in insurrection, and that a
state law authorizing the governor to deprive citizens of
life under such circumstances was consistent with the
14th Amendment, we are of opinion that the same is true
of a law authorizing by implication that was done in this
case." 28 Nonetheless, while preventive detention is a
proper measure to cope with the danger arising from the
insurrection or rebellion, it may continue for such length
of time as to make it punitive in character. If such were
the case, I am not prepared to yield concurrence to the
view that this Court is devoid of the power in a habeas
corpus proceeding to inquire into the legality of the
detention. As to when such a stage is reached cannot be
set forth with precision. The test would be an appraisal
of the environmental facts of each case. This is not to
deny that the presumption must be in favor not only of
the good faith characterizing the presidential action but
of the absence of any arbitrary taint in so ordering
preventive detention. It is out of excess of caution and
due to the belief that habeas corpus as a writ of liberty
should not be unnecessarily curtailed that I feel
compelled to qualify my concurrence in that respect.
7. Nor is this all. Once a case is filed, the party detained
may avail himself of the right to bail. If there be such a
petition, the court has jurisdiction to grant or to deny bail
in accordance with the constitutional
provision. 29 Inasmuch as the return to the writ filed by
the Solicitor General states that a warrant of arrest
against detainee Dra. Aurora Parong was issued on
August 4, 1982, by the Municipal Court of Bayombong,
for illegal possession of firearm and ammunition, then
clearly she has a right to invoke such right,
notwithstanding the suspension of the privilege of the
writ. So I did argue as counsel in Hernandez v.
Montesa, 30 where a majority of this Court with one vote
lacking to make their conclusion doctrinal agreed with
such submission. There was adherence to such a view
in my separate opinions in Lansang 31 and in Buscayno
v. Enrile, 32 I do again and to that extent dissent.
8. It may be worthwhile to touch briefly on the exercise of
power of preventive detention in other jurisdictions. The
retired Lord President of the Federal Court of Malaysia
Tun Mohamed Suffian in his work on the Malaysian
constitution, spoke of the emergency powers of the
executive, the Yang Dipertuan Agung in this wise: " If the
Yang Dipertuan Agung (acting on Cabinet advice) is
satisfied that a grave emergency exists whereby the
security or economic life of the Federation or any part
thereof is threatened, article 150 empowers him to issue
a proclamation of emergency. He has done so thrice:
first, to meet the emergency caused by Indonesian
confrontation, secondly, to meet the emergency caused
by the political crisis arising out of the position of the
Chief Minister of Sarawak and, thirdly, to meet the
emergency caused as a result of the violence that
erupted on 13th May, 1969. (The 1948-1960 emergency
was proclaimed under pre-independence law, not under
the constitution). If a proclamation of emergency is
issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as
may be practicable. Until both Houses of Parliament are
sitting, he may promulgate ordinances having the force
of law, if satisfied that immediate action is
required." 33 By virtue of such competence, preventive
detention may be ordered. 34 The power of preventive
detention is likewise recognized in India. According to
Professor Jain, in a leading article, it "prevails in many
democratic countries and in some form or other, at one
time or other, each democratic country has taken
recourse to preventive detention, especially during the
war period." 35 He mentioned the United States Internal
Security Act enacted by its Congress in 1950 for
emergency detention "during an emergency of war,
invasion or domestic insurrection of a person about
whom there is a reasonable ground to believe that he
would probably engage in acts of sabotage or
espionage. The U.S. Constitution also provides for
suspension of habeas corpus during rebellion or
invasion if public safety so requires." 36 He likewise
referred to England, citing Regulation 14B of the
Defense of Realm Act Regulations, 1914, during World
War I and Regulation 18B of the Defense Regulations
during World War II which according to him led to the
celebrated case of Liversidge v. Anderson. 37 Then he
turned to his own country: "In India, because of unstable
law and order situation, preventive detention has been in
vogue since its independence in 1947. After the
commencement of the Constitution, Parliament enacted
the Preventive Detention Act, 1950, to lay down a legal
framework for preventive detention on certain grounds.
The present day law for the purpose is the Maintenance
of Internal Security Act, 1971. A salient feature of the law
of preventive detention in India has been to confer a very
broad discretion on the administrative authority to order
preventive detention of a person in certain
circumstances." 38 He spoke of the relevant
constitutional provisions having a bearing on preventive
detention: "A law for preventive detention can be made
by Parliament exclusively under entry 9, List 1, for
reasons connected with 'defensee', 'foreign affairs' or the
'security of India.' Further, under entry 3, List 111,
Parliament and the State Legislatures can concurrently
make a law for preventive detention for reasons
connected with the " security of a State', maintenance of
public order,' or 'maintenance of supplies and services
essential to the community.' Parliament thus has a wide
legislative jurisdiction in the matter as it can enact a law
of preventive detention for reasons connected with all
the six heads mentioned above. The Preventive
Detention Act, 1950, and now the Maintenance of
Internal Security Act, 1971, have been enacted by
Parliament providing for preventive detention for all
these six heads." 39 For him the law of preventive
detention in India "has therefore been too much
administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study
of the cases on preventive detention in India. As he
pointed out, "the range and magnitude of administrative
control over the individual's personal liberty is very vast,
and the range of judicial control is very restrictive, as the
basic question, whether a person should be detained or
not on the facts and circumstances of the case, hes
within the scope of administrative discretion and beyond
judicial review." 41Nonetheless, the Supreme Court of
India, as he stressed, "in the interest or maintaining
constitutionalism," has been able to take "a somewhat
broad view of its restricted powers, and has given
whatever relief it can to the detained persons." 42 For me
that approach has much to recommend it. This is not to
deny that in the event there is a misapprehension as to
the actual facts that led to the preventive detention, the
plea for remedial action should, in the first instance, be
addressed to the President. Very likely, there will be an
affirmative response. Even then, the assurance to a
party feeling aggrieved that there could still be resort to
judicial review, even if utilized only in rare and
exceptional cases, may conduce to a deeper sense of
loyalty to the existing constitutional order on the part of
the misguided or disaffected individuals. Hence, to
repeat, this qualified concurrence on my part.
9. The opinion of the Court, however, did not stop at
dismissing the petition on the ground that the issuance
of a presidential commitment order validates the
preventive detention of petitioners. It went farther by
reexamining the unanimous ruling in Lansang to the
effect that the suspension of the privilege of the writ of
habeas corpus raises a judicial rather than a political
question and holding that it is no longer authoritative.
With due respect, I cannot agree to such a conclusion. In
the first place, there was no need to go that far. For me,
at least, the rationale that this Court must accord
deference to a presidential committment order suffices
for the decision of this case. Nor would I limit my dissent
on that ground alone. It is for me, and again I say this
with due respect, deplorable and unjustifiable for this
Court to turn its back on a doctrine that has elicited
praise and commendation from eminent scholars and
jurists here and abroad.
10. That is easily understandable. The learned,
comprehension and unanimous Lansang opinion penned
by Chief Justice Concepcion concurred in by all the
Justices, 43 to my mind, explains with lucidity and force
why the question is judicial rather than political. Thus:
"Indeed, the grant of power to suspend the privilege is
neither absolute nor unqualified. The authority conferred
by the Constitution, both under the Bill of Rights and
under the Executive Department, is limited and
conditional. The precept in the Bill of Rights establishes
a general rule, as well as an exception thereto. What is
more, it postulates the former in the negative, evidently
to stress its importance, by providing that '(t)he privilege
of the writ of habeas corpus shall not be suspended * *
*.' It is only by way of exception that it permits the
suspension of the privilege 'in cases of invasion,
insurrection, or rebellion'- or, under Art. VII of the
Constitution, 'imminent danger thereof when the public
safety requires it, in any of which events the same may
be suspended wherever during such period the
necessity for such suspension shall exist.' For from
being full and plenary, the authority to suspend the
privilege of the writ is thus circumscribed, confined and
restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as
regards the time when and the place where it may be
exercised. These factors and the aforementioned setting
or conditions mark, establish and define the extent, the
confines and the limits of said power, beyond which it
does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance
therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional
provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility." 44 The
then Chief Justice continued: "Much less may the
assumption be indulged in when we bear in mind that
our political system is essentially democratic and
republican in character and that the suspension of the
privilege affects the most fundamental element of that
system, namely, individual freedom. Indeed, such
freedom includes and connotes, as well as demands, the
right of every single member of our citizenry to freely
discuss and dissent from, as well as criticize and
denounce, the views, the policies and the practices of
the government and the party in power that he deems
unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and
exercise of such right- which, under certain conditions,
may be a civic duty of the highest order- is vital to the
democratic system and essential to its successful
operation and wholesome growth and development." 45
11. One of the merits of the ponencia of Chief Justice
Concepcion is that it is infused with a sense of realism.
These are his words: "Manifestly, however, the liberty
guaranteed and protected by our Basic Law is one
enjoyed and exercised, not in derogation thereof, but
consistently therewith, and, hence, within the framework
of the social order established by the Constitution and
the context of the Rules of Law. Accordingly, when
individual freedom is used to destroy that social order,
by means of force and violence, in defiance of the Rule
of Law- such as by rising publicly and taking arms
against the government to overthrow the same, thereby
committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of
the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus,
when public safety requires it. Although we must be
forewarned against mistaking mere dissent-no matter
how emphatic or intemperate it may be-fore dissidence
amounting to rebellion or insurrection, the Court cannot
hesitate, much less-refuse-when the existence of such
rebellion or insurrection has been fairly established or
cannot reasonably be denied-to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land
and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called
upon to epitomize." 46
12. After which this Court, as set forth in the Lansang
opinion, considered "the precise nature" of its function:
"Article VII of the Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system
of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand
in hand with the system of checks and balances, under
which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts
within the sphere allotted to him by the Basic Law, and
the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme." 47 Further:
"In the exercise of such authority, the function of the
Court is merely to check-not to supplant-the Executive,
or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his
act. To be sure, the power of the Court to determine the
validity of the contested proclamation is far from being
Identical to, or even comparable with, its power over
ordinary civil or criminal cases elevated thereto by
ordinary appeal from inferior courts, in which cases the
appellate court has all of the powers of the court of
origin." 48It is clear the competence of this Court to pass
upon the validity of the suspension of the privilege of the
writ is confined within limits that preclude the assumption
of power that rightfully belongs to the Executive. There
would then be, to my mind, no sufficient Justification to
retreat from a position that assures judicial participation
on a matter of momentous consequence. Moreover, to
the extent that such a move has had the benefit of
judicial appraisal, and thereafter approval, to that extent
there may be less valid opposition and hopefully greater
understanding of why such a step had to be taken.
13. With Lansang overruled, the doctrine that the
suspension of the privilege of the writ announced
in Barcelon v. Baker 49 and Montenegro v.
Castañeda 50 will be revived. This for me is unfortunate.
The Montenegro decision, as I had occasion to state
"owed its existence to the compulsion exerted
by Barcelon v. Baker, a 1905 decision. This Court was
partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements
from such illustrious American jurists as Marshall, Story,
and Taney. That is to misread what was said by them.
This is most evident in the case of Chief Justice
Marshall, whose epochal Marbury v. Madison was cited.
Why that was so is difficult to understand. For it speaks
to the contrary. It was by virtue of this decision that the
function of judicial review owes its origin notwithstanding
the absence of any explicit provision in the American
Constitution empowering the courts to do so. Thus: 'It is
emphatically the province and duty of the judicial
department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law
be in opposition to the constitution; if both the law and
the constitution apply to a particular case, so that the
court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must
determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty. If, then,
the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the
legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply.'" 51 The
opinion went on to say: "Nor is the excerpt from Justice
Story, speaking for the United States Supreme Court,
in Martin v. Mott, as made clear in the opinion of the
Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a
call, made under the Act of 1795, to serve during the
War of 1812. His property was taken to satisfy the
judgment. He brought an action of replevin. The
American Constitution empowers its Congress 'to
provide for calling forth the Militia' in certain cases, and
Congress did provide that in those cases the President
should have authority to make the call." All that Justice
Story did in construing the statute in the light of the
language and purpose of her Constitution was to
recognize the authority of the American President to
decide whether the exigency has arisen. In stating that
such power was exclusive and thus had a conclusive
effect, he relied on the language employed, impressed
with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown,
anything but that. Chief Justice Taney in Luther v.
Borden, likewise had to deal with a situation involving
the calling out of the militia. As a matter of fact, an
eminent commentator speaking of the two above
decisions had this apt observation: "The common
element in these opinions would seem to be a genuine
judicial reluctance to speak in a situation where the voice
of the Court, even if heard, could not have any effect.
More than this, both Story and Taney seem to share the
suspicion, unusual in them, that under a popular form of
government there are certain questions that the political
branches must be trusted to answer with finality. What
was said next is even more pertinent. Thus: 'It would be
dangerous and misleading to push the principles of
these cases too far, especially the doctrine of "political
questions" as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief
from a palpably unwarranted use of presidential or
military power, especially when the question at issue
falls in the penumbra between the "political" and the
"justiciable", the Court will act as if it had never heard of
this doctrine and its underlying assumption that there are
some powers against which the judiciary simply cannot
be expected to act as the last line of defense.' It would
thus seem evident that support for the hitherto prevailing
Montenegro ruling was rather frail. Happily, with our
decision, it is no longer capable of the mischief to which
it does lend itself of an undue diminution of judicial
power to the prejudice of constitutional rights." 52
14. An opinion of a court, especially this Tribunal, should
not ignore the environmental facts which gave rise to a
litigation where the issues arise from problems
inseparable from national security. There is, in addition,
the need to take into consideration the pressure of
contemporary events. For as has so often been
stressed, judicial process does not take place in a social
void. The questions before the Court are to be viewed
with full awareness of the consequences attendant to the
decision reached. As so tersely expressed by Justice
Tuason in Araneta v. Dinglasan:" 53 "We test a rule by its
results." 54 More often than not especially during times of
stress, it is inescapable that efforts be made to reconcile
time-tested principles to contemporary problems. The
judiciary is called upon to do its part. There is wisdom in
these words of Justice Tuason from the same opinion:
"The truth is that under our concept of constitutional
government, in times of extreme perils more than in
normal circumstances, 'The various branches, executive,
legislative, and judicial,' given the ability to act, are
called upon 'to perform the duties and discharge the
responsibilities committed to them respectively.'" 55 To
repeat, I accord the fullest respect to the mode and
manner in which my brethren performed their duty and
discharged their responsibility in passing upon the
transcendental question raised in this petition. With the
basic premise of robust concern for individual rights to
which I have been committed,however, I have no choice
except to vote the way I did, even if for those whose
opinions I value conformity with the hitherto
unquestioned verities may at times prove to be less than
adequate to meet the exigencies of the turbulent
present.
TEEHANKEE, J., dissenting:
I am constrained to dissent from the all-encompassing
scope of the main opinion of Mr. Justice de Castro which
would overturn the landmark doctrine of Lansang vs.
Garcia 1 which upheld the Supreme Court's authority to
inquire into the existence of factual bases for the
President's suspension of the privilege of the writ of
habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive
and colonial era ruling of Barcelon vs.
Baker 2 and Montenegro vs. Castañeda 3 that the
President's decision to so suspend the privilege of the
writ "is final and conclusive upon the courts and all other
persons," and would further deny the right to bail even
after the filing of charges in court to persons detained
under Presidential Commitment Orders.
This case, as in other like cases, focuses on the
grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy
or proposal to commit such crimes, invariably bring to
this Court. They complain, as petitioners do here, of
being arrested without any warrant of arrest; of being
informed of purported telegrams concerning the
issuance of a Presidential Commitment Order PCO
authorizing their arrest and detention, but that they are
not given a copy of such PCO nor notified of its contents,
raising doubts whether such PCO has in fact been
issued; of being kept in isolation or transferred to so-
called "safehouses" and being denied of their
constitutional right to counsel and to silence; of
prolonged detention without charges; "of a seeming
deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place
of detention, raising the apprehension that respondents
are using force, violence, threat, intimidation and other
means which vitiate free will to obtain confessions and
statements from the detainees in violation of their
constitutional rights;" and of their counsel and families
undergoing great difficulties in locating or having access
to them (main opinion at p. 3).
The State through the Solicitor General on the other
hand invariably denies all such charges and submits
affidavits of the arresting officers and detention
custodian that detainees are afforded decent and
humane treatment, further countering that such claims
are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.
In many such cases, however, the Court in issuing the
writ of habeas corpus requiring respondents to make a
return of the writ includes a resolution, in recognition of
the detainees' constitutional rights, "to allow counsel for
petitioners to visit and confer with the detainee(s) in an
atmosphere of confidentiality consistent with reasonable
security measures which respondents may impose." 4 In
other cases where respondents military officials have
allegedly denied having in their custody the person(s)
detained, the Court has issued its resolution "on the
assumption that the detained person is in the custody of
respondents, that there be due observance and respect
of his right to counsel and other constitutional rights by
respondents." 5
Respondents' return through the Solicitor General in the
case at bar states that the detainees are all detained by
virtue of a Presidential Commitment Order issued on
July 12, 1982 (several days after their arrest without
warrant on July 6 and 7, 1982) and that corresponding
charges against the detainees were filed in court and
before the Acting Provincial Fiscal of Nueva Viscaya
where they are pending. As to the detainee Dr. Aurora
Parong, the return further states that a warrant of arrest
was issued against her on August 4, 1982 by the
Municipal Court of Bayombong for illegal possession of a
firearm and ammunition. As in all other returns in similar
cases, the Solicitor General asserts "that the privilege of
the writ of habeas corpus is unavailing as to them.
Courts cannot inquire into the validity and cause of their
arrest and detention" by virtue of the continued
suspension, under Presidential Proclamation No. 2045
(which proclaimed the termination of martial law in the
Philippines), of the privilege of the writ of habeas corpus
in the two autonomous regions in Mindanao and in all
other places with respect to persons detained for
suspected involvement in crimes related to national
security.
The main opinion confronts the question of whether the
issuance of a Presidential Commitment Order (PCO) has
provided the legal basis of the detention of herein
detainees following their arrest for Proclamation No.
2045-covered offenses," and remarks that "this question
has to be set at rest promptly and decisively, if we are to
break a seemingly continuous flow of petitions for
habeas corpus, as what had been seen lately of such
petitions being filed in this Court one after the other.
I. I submit that the resolution of the issues in this case
does not call for the all-encompassing ruling in the main
opinion with its sweeping scope that would reexamine
and overturn the benchmark ruling in Lansang. The
limited suspension of the privilege of the writ of habeas
corpus in the two instances provided under Presidential
Proclamation No. 2045 has not been challenged in this
case. So, what's the point of an advance declaration that
all checks and barriers are down? Lansang recognizes
the greatest deference and respect that is due the
President's determination for the necessity of
suspending the privilege of the writ of habeas corpus.
But Lansang sets at the same time the constitutional
confines and limits of the President's power to suspend
the privilege of the writ and enunciates the constitutional
test, not of the correctness of the President's decision,
but that the President's decision to suspend the privilege
not suffer from the constitutional infirmity of
arbitrariness. 6 Thus, after laying the premise "that every
case must depend on its own circumstances," the Court
therein thru then Chief Justice Roberto Concepcion held
that:
Indeed, the grant of power to suspend the
privilege is neither absolute nor unqualified. The
authority conferred by the Constitution, both
under the Bill of Rights and under the Executive
Department, is limited and conditional. The
precept in the Bill of Rights establishes a
general rule, as well as an exception thereto.
What is more, it postulates the former in
the negative, evidently to stress its importance,
by providing that '(t)he privilege of the writ of
habeas corpus shall not be suspended ....' It is
only by way of exception that it permits the
suspension of the privilege 'in cases of invasion,
insurrection, or rebellion'- or, under Art. VII of the
Constitution, 'imminent danger thereof '- 'when
the public safety requires it, in any of which
events the same may be suspended wherever
during such period the necessity for such
suspension shall exist.' Far from being fun 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 ? the place
where it may be exercised. These factors and
the aforementioned setting or conditions mark,
establish and define the extent, the confines and
the limits of said power, beyond which it does
not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the
legislative department, adherence thereto and
compliance therewith may, within proper
bounds, be inquired into by courts of justice.
Otherwise, the explicit constitutional provisions
thereon would be meaningless. Surely, the
framers of our Constitution could not have
intended to engage in such a wasteful exercise
in futility.
Much less may the assumption be indulged in
when we bear in mind that our political system is
essentially democratic and republican in
character and that the suspension of the
privilege affects the most fundamental element
of that system. namely, individual freedom.
Indeed, such freedom includes and connotes, as
well as demands, the right of every single
member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce,
the views, the policies and the practices of the
government and the party in power that he
deems unwise, improper or inimical to the
commonwealth, regardless of whether his own
opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such
right-which, under certain conditions, may be a
civic duty of the highest order is-vital to the
democratic system and essential to its
successful operation and wholesome growth
and development.
Manifestly, however, the liberty guaranteed and
protected by our Basic Law is one enjoyed and
exercise, not in derogation thereof, but
consistently therewith, and, hence, within the
framework of the social order established by the
Constitution and the context of the Rule of Law.
Accordingly, when individual freedom is used to
 destroy that social order, by means of force and
violence, in defiance of the Rule of Law such as
by rising publicly and taking arms against the
government to overthrow the same, thereby
committing the crime of rebellion- there emerges
a circumstance that may warrant a limited
withdrawal of the aforementioned guarantee or
protection, by suspending the privilege of the
writ of habeas corpus, when public safety
requires it. Although we must before warned
against mistaking mere dissent- no matter how
emphatic or intemperate it may be-for
dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much
less refuse- when the existence of such rebellion
or insurrection has been fairly established or
cannot reasonably be denied- to uphold the
finding of the Executive thereon, without, in
effect, encroaching upon a power vested in him
by the Supreme Law of the land and depriving
him, to this extent, of such power, and,
therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is
called upon to epitomize. " 7
II. The crucial issue at bar is that adversely decided by
the main opinion, denying petitioners' motion that the
Court order their release on bail, on the ground that the
suspension of the privilege of the writ of habeas corpus
for any of the offenses covered by Proclamation No.
2045 "includes, as a necessary consequence, the
withholding for the duration of the suspension of the
privilege of the right to bail" (main opinion, at page 16).
1. I submit that notwithstanding the suspension of the
privilege of the writ of habeas corpus and the issuance
on March 9, 1982 of Letter of Instruction No. 1211 that
the Presidential Commitment Order constitutes authority
to keep the subject person under detention "until ordered
released by the President or his duly authorized
representative" (which is a mere internal instruction to
certain agencies), the higher and superior mandate of
the Constitution guarantees the right to bail and vests
the courts with the jurisdiction and judicial power to grant
bail which may not be removed nor diminished nor
abdicated. We cannot but so hold, if we are to be true to
the fundamental precept that "The Constitution is a law
for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men
at all times and under all circumstances."
The argument that otherwise the purpose of the
suspension of the privilege would be defeated ignores
the overwhelming capability of the State and its military
and police forces to keep suspects under surveillance
and the courts' imposition of reasonable conditions in
granting bail, such as periodic reports to the authorities
concerned, and prohibiting their going to certain critical
areas.
2. The most authoritative pronouncement in this regard
is of course none other than the President's himself. In
all the metropolitan newspapers of April 20, 1983, the
President is reported to have "said that Pimentel has
been charged with rebellion before the regional trial
court of Cebu City and is therefore under the jurisdiction
of the civil court and not only under the jurisdiction of the
military by virtue of the PCO." In a telegram in reply to
the appeal of Msgr. Patrick Cronin, Archbishop of
Cagayan de Oro and Misamis Oriental, for lifting of the
PCO on Mayor Aquilino Pimentel of Cagayan de Oro
City, the President said that "(T)he disposal of the body
of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City
and not within the powers of the President. "
3. This is but in consonance with the majority holding in
the leading 1951 cases of Nava vs.
Gatmaitan andHernandez vs. Montesa 8 (although it
failed one vote short of the required majority of six
affirmative votes at the time) as expounded by then
Chief Justice Ricardo Paras and Associate Justice (later
Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after
formal indictment in court by the filing against them of an
information charging rebellion with multiple murder, etc.,
accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus
are entitled to the right to bail.
4. As stressed by then Chief Justice Ricardo Paras,
"(T)he right to bail, along with the right of an accused to
be heard by himself and counsel to be informed of the
nature and cause of the accusation against him, to have
a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the
attendance of witnesses in his behalf (Article III, Section
1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If it
be contended that the suspension of the privilege of the
writ of habeas corpus includes the suspension of the
distinct right to bail or to be provisionally at liberty, it
would a fortiori imply the suspension of all his other
rights (even the right to be tried by a court) that may win
for him ultimate acquittal and, hence, absolute
freedom. The latter result is not insisted upon for being
patently untenable. "
Then Chief Justice Paras stressed that "... The privilege
of the writ of habeas corpus and the right to bail
guaranteed under the Bill of Rights are separate and co-
equal. If the intention of the framers of the Constitution
was that the suspension of the privilege of the writ of
habeas corpus carries or implies the suspension of the
right to bail, they would have very easily provided that all
persons shall before conviction be bailable by sufficient
sureties, except those charged with capital offenses
when evidence of guilt is strong and except when the
privilege of the writ of habeas corpus is suspended. As
stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L.
ed. 297, the Constitution limited the suspension to only
one great right, leaving the rest to remain forever
inviolable. "
5. It is noteworthy and supportive of the prevailing stand
since 1951 that the other great constitutional rights
remain forever inviolable since the Constitution limited
the suspension to only one great right (of the privilege of
the writ of habeas corpus), that there has been no
amendment of the Constitution to curtail the right to bail
in case of such suspension notwithstanding the
numerous constitutional amendments adopted after the
1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o
the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the
answer is that the existence of danger is never a
justification for courts to tamper with the fundamental
rights expressly granted by the Constitution. These
rights are immutable, inflexible, yielding to no pressure
of convenience, expediency or the so-called 'judicial
statesmanship.' The Legislature itself cannot infringe
them, and no court conscious of its responsibilities and
limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to
the Nation, let the Constitution be amended, or
abolished. It is trite to say that, while the Constitution
stands, the courts of justice as the repository of civil
liberty are bound to protect and maintain undiluted
individual rights."
7. And former Chief Justice Cesar Bengzon then made
the same forceful plea echoed these days by men of
goodwill that respect for constitutional and human rights
and adherence to the rule of law would help in the fight
against rebellion and movement for national
reconciliation, thus: "And in my opinion, one of the surest
means to ease the uprising is a sincere demonstration of
this Government's adherence to the principles of the
Constitution together with an impartial application thereof
to all citizens, whether dissidents or not. Let the rebels
have no reason to apprehend that their comrades now
under custody are being railroaded into Muntinglupa,
without benefit of those fundamental privileges which the
experience of the ages has deemed essential for the
protection of all persons accused of crime before the
tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru
faulty or misplaced devotion, uphold any doubtful claims
of governmental power in diminution of individual rights,
but will always cling to the principles uttered long ago by
Chief Justice Marshall that when in doubt as to the
construction of the Constitution, 'The Courts will favor
personal liberty.'"
8. The right to bail cannot just be cancelled out
summarily because of the issuance of a PCO In the case
at bar, detainee Dr. Aurora Parong is charged in the
municipal court with the crime of illegal possession of
firearm, which is a clearly bailable offense. The charges
filed against the other detainees are likewise for clearly
bailable offenses. It is elementary that the right to bail in
non-capital offenses and even in capital offenses where
evidence of guilt is not strong will be generally granted
and respected by the courts, "the natural tendency of the
courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and
standing of the person charged and the unlikelihood of
his fleeing the court's jurisdiction.
As the Court held in the leading case of Montano vs.
Ocampo 9 wherein the Supreme Court granted bail to
Senator Montano who was charged with multiple
murders and frustrated murders:
Brushing aside the charge that the prelimiminary
investigation of this case by the aforesaid Judge
was railroaded, the same having been
conducted at midnight, a few hours after the
complaint was filed, we are of the opinion that,
upon the evidence adduced in the applicaction
for bail in the lower court, as such evidence is
recited lengthily in the present petition and the
answer thereto, and extensively analyzed and
discussed in the oral argument, there is not such
clear showing of guilt as would preclude all
reasonable probability of any other conclusion.
Exclusion from bail in capital offenses being
an exception to the otherwise absolute
right guaranteed by the constitution, the natural
tendency of the courts has been toward a fair
and liberal appreciation, rather than otherwise ,
of the evidence in the determination of the
degree of proof and presumption of guilt
necessary to war. rant a deprivation of that right.
Besides, to deny bail it is not enough that the
evidence of guilt is strong; it must also appear
that in case of conviction the defendant 's liability
would probably call for a capital punishment. No
clear or conclusive showing before this Court
has been made.
In the evaluation of the evidence the probability
of flight is one other important factor to be taken
 into account. The sole purpose of confining
accusedin jail before conviction, it has been
observed, is to assure his presence at the trial.
In other words, if denial of bail is authorized in
capital cases, it is only on the theory that the
proof being strong, the dependant would flee, if
he has the opportunity, rather than face the
verdict of the jury. Hence the exception to the
fundamental right to be bailed should be applied
in direct ratio to the extent of the probability of
evasion of prosecution.
The possibility of escape in this case, bearing in
mind the defendant's official and social
standing and his other personal
circumstances, seems remote if not nil."
In the recent case of Sobremonte vs. Enrile, 10 the
detainee was released upon her filing of the
recommended P1,000.00 bail bond for the offense of
possession of subversive literature with which she was
charged and the habeas corpus petition, like many
others, although dismissed for having thereby become
moot, accomplished the purpose of securing the
accused's release from prolonged detention. The Court
had occasion to decry therein that "all the effort, energy
and manhours expended by the parties and their
counsel, including this Court, ... could have been
avoided had the officers of the AVSECOM and the
ISAFP responded promptly to the inquiries of petitioner
instead of giving her the 'run-around' by referring her
from one office to another."
9. "The continuous flow of petitions for habeas corpus"
filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the
constitutional and human rights of all persons within its
jurisdiction and must see to it that the rights are
respected and enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional right is shown
to exist, the court that rendered the judgment or before
whom the case is pending is ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the
legality of the detention. 11 So accused persons deprived
of the constitutional right of speedy trial have been set
free. 12 And likewise persons detained indefinitely
without charges so much so that the detention becomes
punitive and not merely preventive in character are
entitled to regain their freedom. The spirit and letter of
our Constitution negates as contrary to the basic
precepts of human rights and freedom that a person be
detained indefinitely without any charges.
III. The main opinion invokes "a time of war or grave peril
to the nation" (at page 16), oblivious of the Presidents
lifting of martial law under Proclamation No. 2045 on
January 17, 1981 and the specific premises therein set
forth that
WHEREAS, the Filipino people, having subdued
threats to the stability of government, public
order and security, are aware that the time has
come to consolidate the gains attained by the
nation under a state of martial law by assuming
their normal political roles and shaping the
national destiny within the framework of civil
government and popular democracy:
WHEREAS, the experience gained by the nation
under martial law in subduing threats to the
stability of the government, public order and
security, has enabled the Filipino people to
rediscover their confidence in their ability to
command the resources of national unity,
patriotism, discipline and sense of common
destiny;
 WHEREAS, the government and the people are
at the same time also aware that the public
safety continues to require a degree of capability
to deal adequately with elements who persist in
endeavoring to overthrow the government by
violent means and exploiting every opportunity
to disrupt the peaceful and productive labors of
the government; ..."
As to the "self-evident" submittal of the main opinion 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" (at page 16), I can only recall the
exhortation of the Holy Father John Paul II in his address
to the Philippine nation on February 17, 1981, thus:
"Even in exceptional situations that may at times arise,
one can never justify any violation of the fundamental
dignity of the human person or of the basic rights that
safeguard this dignity. Legitimate concern for the
security of a nation, as demanded by the common good,
could lead to the temptation of subjugating to the State
the human being and his or her dignity and rights. Any
apparent conflict between the exigencies of security and
of the citizens' basic rights must be resolved according
to the fundamental principle-upheld always by the
Church- that social organization exists only for the
service of man and for the protection of his dignity, and
that it cannot claim to serve the common good when
human rights are not safeguaded. People will have faith
in the safeguarding of their security and the promotion of
their well-being only to the extent that they feel truly
involved, and supported in their very humanity."
Separate Opinions
FERNANDO, C.J., concurring:
In the result with qualification primarily on the respect
that must be accorded the constitutional right to bail
once a case is flied and dissenting as to the overruling
of Lansang v. Garcia:
MAKASIAR, J., concurring:
Concuring in the result and in overruling the Lansang
case.
ABAD SANTOS, J., concurring:
In the result and in overruling Lansang. I reserve my
right on the question of bail.
FERNANDO, C.J., concurring:
Concurring in the result with qualification primarily on the
respect that must be accorded the constitutional right to
bail once a case is filed and dissenting as to the
overruling of Lansang v. Garcia.
It does not admit of doubt that the question posed in this
petition for the writ of habeas corpus, and in other similar
petitions for that matter, is impressed with significance
that calls for the highest degree of care and
circumspection. The result arrived at by the Court is that
once a presidential commitment order is issued, the
detention is rendered valid and legal, the right to be
released of the person detained even after the filing of
charges being dependent on the President "who may
order the release of a detainee or his being placed under
house arrest, as he has done in meritorious
cases." 1 The exhaustive opinion of the Court penned by
Justice de Castro likewise re-examines the Lansang
doctrine 2 which ruled that the suspension of the
privilege of the writ of habeas corpus raises a judicial
rather than a political question and reverts to the
principle announced in the earlier cases of Barcelon v.
Baker 3 and Montenegro v. Castañeda, 4 both of which
held that the question raised is political in character.
I concur in the ruling that while as a general rule
preventive detention is an obstacle to judicial inquiry, this
Court is empowered where compelling reasons exist to
inquire into the matter. Moreover, the judiciary once a
case has been filed has jurisdiction to act on a petition
for bail. I dissent insofar as the decision
overrules Lansang v. Garcia.
1. Petitioners in their application for the writ of liberty
assert an infringement of a right that finds shelter in the
fundamental law. This Court, both in normal times and
under emergency conditions, is not susceptible to the
accusation that it has not accorded the most careful
study to a plea of such character. Petitioners were heard
and their cases decided. In addition to Lansang, People
v. Ferrer, 5 Aquino Jr. v. Ponce Enrile 6 and Aquino Jr. v.
Military Commission No. 2 7 may be cited. This Tribunal
then has not been insensible to its duty to render fealty
to the applicable mandates of the Constitution. That is to
be true to the primordial concept first announced in the
landmark decision of Marbury v. Madison, 8 the opinion
being rendered by the illustrious Chief Justice Marshall,
enunciating the principle of judicial review. Our
Constitution is quite clear on the matter. So it was held
in Angara v. Electoral Tribunal, 9 the first case of
transcendental importance under the 1935 Charter. It is
quite manifest that judicial review is not only a power but
a duty. 10
2. Thus the judiciary can be appealed to and in
appropriate cases, annul executive or legislative acts.
For as so often stressed, "the Constitution is not only
law, but a higher law, to which other law must
bow." 11 Professor Black went on to state: "Here, I think,
we are laboring the obvious. The superior status of the
Constitution is clearer even than its standing as law. But
if it is of superior status, and if it is law, then it is law of a
superior status. Again, the important thing is not whether
some flaw could be found in the logic by which this was
established. The logic of human institutions is a logic of
probability. The important thing is that this concept of the
superior status of the Constitution as law very early
became and has since continued to be a standard part
of the way in which the American lawyer and judge and
citizen look at their government." 12 This is not to deny
the possibility of judicial interference with policy
formulation, better left to the political branches. It is an
entirely different matter of course where the question is
one of liberty.
3. An inquiry into the validity of executive or legislative
act has been fitly characterized as both awesome and
delicate. Nonetheless, for the judiciary, there is no
choice. To repeat, it is a duty to be performed. This is so
especially where the writ of habeas corpus has been
invoked. It is then incumbent on a court to pass on the
legality of the detention. As I had occasion to state in my
separate opinion in Aquino Jr. vs. Enrile: 13 "This Court
has to act then. The liberty enshrined in the Constitution,
for the protection of which habeas corpus is the
appropriate remedy, imposes that obligation. Its task is
clear. It must be performed. That is a trust to which it
cannot be recreant. Whenever the grievance complained
of is deprivation of liberty, it is its responsibility to inquire
into the matter and to render the decision appropriate
under the circumstances. Precisely, a habeas corpus
petition calls for that response." 14 It cannot be
overemphasized that the writ of habeas corpus, as a
constitutional right, it, for eminent commentators,
protean in scope. A reference to the opinion of the Court
in Gumabon v. Director of Bureau of Prisons 15 may not
be amiss. Thus: "The writ imposes on judges the grave
responsibility of ascertaining whether there is any legal
justification for a deprivation of physical freedom. Unless
there be such a showing, the confinement must thereby
cease. " 16 It continues: "Rightly then could Chafee refer
to the writ as 'The most important human rights
provision' in the fundamental law. Nor is such praise
unique. Cooley spoke of it as 'One of the principal
safeguards to personal liberty.' For Willoughby, it is 'the
greatest of the safeguards erected by the civil law
against arbitrary and illegal imprisonment by
whomsoever detention may be exercised or ordered.'
Burdick echoed a similar sentiment, referring to it as
'One of the most important bulwarks of liberty.' Fraenkel
made it unanimous, for to him. 'Without it much else
would be of no avail.' Thereby the rule of law is assured.
A full awareness of the potentialities of the writ of
habeas corpus in the defense of liberty coupled with its
limitations may be detected in the opinions of former
Chief Justices Arellano, Avancena, Abad Santos, Paras,
Bengzon and [Chief Justice Concepcion]. It fell to Justice
Malcolm's lot, however to emphasize quite a few times
the breadth of its amplitude and of its reach."17
4. So it is in the United States. As so well put by Justice
Brennan in Fay v. Noia: 18 "We do well to bear in mind
the extraordinary prestige of the Great Writ, habeas
corpus ad subjiciendum, in Anglo-American
jurisprudence: 'the most celebrated writ in English Law,'
3 Blackstone Commentaries 129. It is 'a writ antecedent
to statute, and throwing its root deep into the genius of
our common law * * *. It is perhaps the most important
writ known to the constitutional law of England, affording
as it does a swift and imperative remedy in all cases of
illegal restraint and confinement. It is of immemorial
antiquity, an instance of its use occurring in the thirty-
third year of Edward I. 'Secretary of State for Home
Affairs v. O'Brien [1923] AC 603, 609 (HL) Received into
our own law in the colonial period, given explicit
recognition in the Federal Constitution, Art. I, Sec. 9, cl.
2, incorporated in the first grant of federal court
jurisdiction, Act of September 24, 1978, c 20, sec. 14, 1
State 81, 82, habeas corpus was earlier confirmed by
Chief Justice John Marshall to be a 'Great constitutional
privilege.' Ex parte Bollman and Swartout (US) 4 Cranch
75, 95, 2L ed 554, 561. Only two Terms ago this Court
had occasion to reaffirm the high place of the writ in our
jurisprudence: 'We repeat what has been so truly said of
the federal writ: "there is no higher duty than to maintain
it unimpaired," Bowen v. Johnston, 306 US 19, 26, 83 L
ed 455, 461, 59 S Ct 442 (1939), and unsuspended,
save only in the cases specified in our Constitution.'
Smith v. Bennett, 365 US 708, 713, 6 1 ed 2d 39, 43, 81
s Ct. 895. " 19
5. To repeat, it is the ruling of this Court that an issuance
of a presidential commitment order imparts validity to a
detention the right to be released of the person detained
even after the filing of charges being dependent on the
President who may order such release or his being
placed under house arrest. As I mentioned at the outset,
I yield a qualified concurrence. The power of preventive
detention where the privilege of the writ of habeas
corpus is suspended has been recognized. 20 The lifting
of martial law unfortunately has not been followed by a
restoration of peace and order in certain sections of the
country. In the proclamation lifting martial law, the last
paragraph of the whereas clause spoke of the
awareness of the government and the Filipino people of
public safety continuing "to require a degree of capability
to deal adequately with elements who persist in
endeavoring to overthrow the government by violent
means and exploiting every opportunity to disrupt [its]
peaceful and productive" efforts. 21Accordingly, in
terminating the state of martial law throughout the
Philippines, it was provided: "that the call to the Armed
Forces of the Philippines to prevent or suppress lawless
violence, insurrection, rebellion and subversion shall
continue to be in force and effect; and Provided that in
the two autonomous regions in Mindanao, upon the
request of the residents therein, the suspension of the
privileges of the writ of habeas corpus shall continue;
and in all other places the suspension of the privilege of
the writ shall also continue with respect to persons at
present detained as well as others who may hereafter be
similarly detained for the crimes of insurrection or
rebellion, subversion; conspiracy or proposal to commit
such crimes and for all other crimes and offenses
committed by them in furtherance or on the occasion
thereof, or incident thereto, or in connection therewith; *
* *." 22 That is the basis for the preventive detention of
petitioners in this case.
6. The President as commander-in-chief may call out the
armed forces to prevent or suppress lawless violence,
invasion, insurrection, or rebellion and in case of
invasion, insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, "may suspend
the privilege of the writ of habeas corpus, or place the
Philippines or any part thereof under martial
law."23 There are thus three alternatives which may be
availed to meet a grave public danger to the security of
the state. As pointed out by Chief Justice Concepcion in
Lansang, prior to the suspension of the privilege of the
writ in 1971, the armed forces had been called out, but
such a move "proved inadequate to attain the desired
result. Of the two (2) other alternatives, the suspension
of the privilege is the least harsh." 24 Even if only the first
alternative were resorted to, the executive could still
exercise the power of preventive detention. Moyer v.
Peabody, 25 decided by the American Supreme Court,
the opinion being penned by Justice Holmes, may be
cited. According to the statement of the facts of that
case, "it appeared that the governor had declared a
county to be in a state of insurrection, had called out
troops to put down the trouble, and had ordered that the
plaintiff should be arrested as a leader of the outbreak,
and should be detained until he could be discharged with
safety, and that then he should be delivered to the civil
authorities, to be dealt with according to law." 26 On
those facts the American Supreme Court held that
preventive detention was allowable, the test of its validity
being one of good faith. The state governor then could
"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." 27 The last
paragraph of Justice Holmes opinion was even more
emphatic: "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. This was admitted with regard to killing men in the
actual clash of arms; and we think it obvious, although it
was disputed, that the same is true of temporary
detention to prevent apprehended harm. As no one
would deny that there was immunity for ordering a
company to fire upon a mob in insurrection, and that a
state law authorizing the governor to deprive citizens of
life under such circumstances was consistent with the
14th Amendment, we are of opinion that the same is true
of a law authorizing by implication that was done in this
case." 28 Nonetheless, while preventive detention is a
proper measure to cope with the danger arising from the
insurrection or rebellion, it may continue for such length
of time as to make it punitive in character. If such were
the case, I am not prepared to yield concurrence to the
view that this Court is devoid of the power in a habeas
corpus proceeding to inquire into the legality of the
detention. As to when such a stage is reached cannot be
set forth with precision. The test would be an appraisal
of the environmental facts of each case. This is not to
deny that the presumption must be in favor not only of
the good faith characterizing the presidential action but
of the absence of any arbitrary taint in so ordering
preventive detention. It is out of excess of caution and
due to the belief that habeas corpus as a writ of liberty
should not be unnecessarily curtailed that I feel
compelled to qualify my concurrence in that respect.
7. Nor is this all. Once a case is filed, the party detained
may avail himself of the right to bail. If there be such a
petition, the court has jurisdiction to grant or to deny bail
in accordance with the constitutional
provision. 29 Inasmuch as the return to the writ filed by
the Solicitor General states that a warrant of arrest
against detainee Dra. Aurora Parong was issued on
August 4, 1982, by the Municipal Court of Bayombong,
for illegal possession of firearm and ammunition, then
clearly she has a right to invoke such right,
notwithstanding the suspension of the privilege of the
writ. So I did argue as counsel in Hernandez v.
Montesa, 30 where a majority of this Court with one vote
lacking to make their conclusion doctrinal agreed with
such submission. There was adherence to such a view
in my separate opinions in Lansang 31 and in Buscayno
v. Enrile, 32 I do again and to that extent dissent.
8. It may be worthwhile to touch briefly on the exercise of
power of preventive detention in other jurisdictions. The
retired Lord President of the Federal Court of Malaysia
Tun Mohamed Suffian in his work on the Malaysian
constitution, spoke of the emergency powers of the
executive, the Yang Dipertuan Agung in this wise: " If the
Yang Dipertuan Agung (acting on Cabinet advice) is
satisfied that a grave emergency exists whereby the
security or economic life of the Federation or any part
thereof is threatened, article 150 empowers him to issue
a proclamation of emergency. He has done so thrice:
first, to meet the emergency caused by Indonesian
confrontation, secondly, to meet the emergency caused
by the political crisis arising out of the position of the
Chief Minister of Sarawak and, thirdly, to meet the
emergency caused as a result of the violence that
erupted on 13th May, 1969. (The 1948-1960 emergency
was proclaimed under pre-independence law, not under
the constitution). If a proclamation of emergency is
issued when Parliament is not sitting, the Yang
Dipertuan Agung must summon Parliament as soon as
may be practicable. Until both Houses of Parliament are
sitting, he may promulgate ordinances having the force
of law, if satisfied that immediate action is
required." 33 By virtue of such competence, preventive
detention may be ordered. 34 The power of preventive
detention is likewise recognized in India. According to
Professor Jain, in a leading article, it "prevails in many
democratic countries and in some form or other, at one
time or other, each democratic country has taken
recourse to preventive detention, especially during the
war period." 35 He mentioned the United States Internal
Security Act enacted by its Congress in 1950 for
emergency detention "during an emergency of war,
invasion or domestic insurrection of a person about
whom there is a reasonable ground to believe that he
would probably engage in acts of sabotage or
espionage. The U.S. Constitution also provides for
suspension of habeas corpus during rebellion or
invasion if public safety so requires." 36 He likewise
referred to England, citing Regulation 14B of the
Defense of Realm Act Regulations, 1914, during World
War I and Regulation 18B of the Defense Regulations
during World War II which according to him led to the
celebrated case of Liversidge v. Anderson. 37 Then he
turned to his own country: "In India, because of unstable
law and order situation, preventive detention has been in
vogue since its independence in 1947. After the
commencement of the Constitution, Parliament enacted
the Preventive Detention Act, 1950, to lay down a legal
framework for preventive detention on certain grounds.
The present day law for the purpose is the Maintenance
of Internal Security Act, 1971. A salient feature of the law
of preventive detention in India has been to confer a very
broad discretion on the administrative authority to order
preventive detention of a person in certain
circumstances." 38 He spoke of the relevant
constitutional provisions having a bearing on preventive
detention: "A law for preventive detention can be made
by Parliament exclusively under entry 9, List 1, for
reasons connected with 'defensee', 'foreign affairs' or the
'security of India.' Further, under entry 3, List 111,
Parliament and the State Legislatures can concurrently
make a law for preventive detention for reasons
connected with the " security of a State', maintenance of
public order,' or 'maintenance of supplies and services
essential to the community.' Parliament thus has a wide
legislative jurisdiction in the matter as it can enact a law
of preventive detention for reasons connected with all
the six heads mentioned above. The Preventive
Detention Act, 1950, and now the Maintenance of
Internal Security Act, 1971, have been enacted by
Parliament providing for preventive detention for all
these six heads." 39 For him the law of preventive
detention in India "has therefore been too much
administrative-ridden and the scope of judicial review
has been very much limited." 40 He made a careful study
of the cases on preventive detention in India. As he
pointed out, "the range and magnitude of administrative
control over the individual's personal liberty is very vast,
and the range of judicial control is very restrictive, as the
basic question, whether a person should be detained or
not on the facts and circumstances of the case, hes
within the scope of administrative discretion and beyond
judicial review." 41Nonetheless, the Supreme Court of
India, as he stressed, "in the interest or maintaining
constitutionalism," has been able to take "a somewhat
broad view of its restricted powers, and has given
whatever relief it can to the detained persons." 42 For me
that approach has much to recommend it. This is not to
deny that in the event there is a misapprehension as to
the actual facts that led to the preventive detention, the
plea for remedial action should, in the first instance, be
addressed to the President. Very likely, there will be an
affirmative response. Even then, the assurance to a
party feeling aggrieved that there could still be resort to
judicial review, even if utilized only in rare and
exceptional cases, may conduce to a deeper sense of
loyalty to the existing constitutional order on the part of
the misguided or disaffected individuals. Hence, to
repeat, this qualified concurrence on my part.
9. The opinion of the Court, however, did not stop at
dismissing the petition on the ground that the issuance
of a presidential commitment order validates the
preventive detention of petitioners. It went farther by
reexamining the unanimous ruling in Lansang to the
effect that the suspension of the privilege of the writ of
habeas corpus raises a judicial rather than a political
question and holding that it is no longer authoritative.
With due respect, I cannot agree to such a conclusion. In
the first place, there was no need to go that far. For me,
at least, the rationale that this Court must accord
deference to a presidential committment order suffices
for the decision of this case. Nor would I limit my dissent
on that ground alone. It is for me, and again I say this
with due respect, deplorable and unjustifiable for this
Court to turn its back on a doctrine that has elicited
praise and commendation from eminent scholars and
jurists here and abroad.
10. That is easily understandable. The learned,
comprehension and unanimous Lansang opinion penned
by Chief Justice Concepcion concurred in by all the
Justices, 43 to my mind, explains with lucidity and force
why the question is judicial rather than political. Thus:
"Indeed, the grant of power to suspend the privilege is
neither absolute nor unqualified. The authority conferred
by the Constitution, both under the Bill of Rights and
under the Executive Department, is limited and
conditional. The precept in the Bill of Rights establishes
a general rule, as well as an exception thereto. What is
more, it postulates the former in the negative, evidently
to stress its importance, by providing that '(t)he privilege
of the writ of habeas corpus shall not be suspended * *
*.' It is only by way of exception that it permits the
suspension of the privilege 'in cases of invasion,
insurrection, or rebellion'- or, under Art. VII of the
Constitution, 'imminent danger thereof when the public
safety requires it, in any of which events the same may
be suspended wherever during such period the
necessity for such suspension shall exist.' For from
being full and plenary, the authority to suspend the
privilege of the writ is thus circumscribed, confined and
restricted, not only by the prescribed setting or the
conditions essential to its existence, but, also, as
regards the time when and the place where it may be
exercised. These factors and the aforementioned setting
or conditions mark, establish and define the extent, the
confines and the limits of said power, beyond which it
does not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the legislative
department, adherence thereto and compliance
therewith may, within proper bounds, be inquired into by
courts of justice. Otherwise, the explicit constitutional
provisions thereon would be meaningless. Surely, the
framers of our Constitution could not have intended to
engage in such a wasteful exercise in futility." 44 The
then Chief Justice continued: "Much less may the
assumption be indulged in when we bear in mind that
our political system is essentially democratic and
republican in character and that the suspension of the
privilege affects the most fundamental element of that
system, namely, individual freedom. Indeed, such
freedom includes and connotes, as well as demands, the
right of every single member of our citizenry to freely
discuss and dissent from, as well as criticize and
denounce, the views, the policies and the practices of
the government and the party in power that he deems
unwise, improper or inimical to the commonwealth,
regardless of whether his own opinion is objectively
correct or not. The untrammelled enjoyment and
exercise of such right- which, under certain conditions,
may be a civic duty of the highest order- is vital to the
democratic system and essential to its successful
operation and wholesome growth and development." 45
11. One of the merits of the ponencia of Chief Justice
Concepcion is that it is infused with a sense of realism.
These are his words: "Manifestly, however, the liberty
guaranteed and protected by our Basic Law is one
enjoyed and exercised, not in derogation thereof, but
consistently therewith, and, hence, within the framework
of the social order established by the Constitution and
the context of the Rules of Law. Accordingly, when
individual freedom is used to destroy that social order,
by means of force and violence, in defiance of the Rule
of Law- such as by rising publicly and taking arms
against the government to overthrow the same, thereby
committing the crime of rebellion there emerges a
circumstance that may warrant a limited withdrawal of
the aforementioned guarantee or protection, by
suspending the privilege of the writ of habeas corpus,
when public safety requires it. Although we must be
forewarned against mistaking mere dissent-no matter
how emphatic or intemperate it may be-fore dissidence
amounting to rebellion or insurrection, the Court cannot
hesitate, much less-refuse-when the existence of such
rebellion or insurrection has been fairly established or
cannot reasonably be denied-to uphold the finding of the
Executive thereon, without, in effect, encroaching upon a
power vested in him by the Supreme Law of the land
and depriving him, to this extent, of such power, and,
therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is called
upon to epitomize." 46
12. After which this Court, as set forth in the Lansang
opinion, considered "the precise nature" of its function:
"Article VII of the Constitution vests in the Executive the
power to suspend the privilege of the writ of habeas
corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system
of government, the Executive is supreme within his own
sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand
in hand with the system of checks and balances, under
which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts
within the sphere allotted to him by the Basic Law, and
the authority to determine whether or not he has so
acted is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme." 47 Further:
"In the exercise of such authority, the function of the
Court is merely to check-not to supplant-the Executive,
or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the
power vested in him or to determine the wisdom of his
act. To be sure, the power of the Court to determine the
validity of the contested proclamation is far from being
Identical to, or even comparable with, its power over
ordinary civil or criminal cases elevated thereto by
ordinary appeal from inferior courts, in which cases the
appellate court has all of the powers of the court of
origin." 48It is clear the competence of this Court to pass
upon the validity of the suspension of the privilege of the
writ is confined within limits that preclude the assumption
of power that rightfully belongs to the Executive. There
would then be, to my mind, no sufficient Justification to
retreat from a position that assures judicial participation
on a matter of momentous consequence. Moreover, to
the extent that such a move has had the benefit of
judicial appraisal, and thereafter approval, to that extent
there may be less valid opposition and hopefully greater
understanding of why such a step had to be taken.
13. With Lansang overruled, the doctrine that the
suspension of the privilege of the writ announced
in Barcelon v. Baker 49 and Montenegro v.
Castañeda 50 will be revived. This for me is unfortunate.
The Montenegro decision, as I had occasion to state
"owed its existence to the compulsion exerted
by Barcelon v. Baker, a 1905 decision. This Court was
partly misled by an undue reliance in the latter case on
what it considered to be authoritative pronouncements
from such illustrious American jurists as Marshall, Story,
and Taney. That is to misread what was said by them.
This is most evident in the case of Chief Justice
Marshall, whose epochal Marbury v. Madison was cited.
Why that was so is difficult to understand. For it speaks
to the contrary. It was by virtue of this decision that the
function of judicial review owes its origin notwithstanding
the absence of any explicit provision in the American
Constitution empowering the courts to do so. Thus: 'It is
emphatically the province and duty of the judicial
department to say what the law is. Those who apply the
rule to particular cases, must of necessity expound and
interpret that rule. If two laws conflict with each other, the
courts must decide on the operation of each. So if a law
be in opposition to the constitution; if both the law and
the constitution apply to a particular case, so that the
court must either decide that case conformably to the
law, disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must
determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty. If, then,
the courts are to regard the constitution, and the
constitution is superior to any ordinary act of the
legislature, the constitution, and not such ordinary act,
must govern the case to which they both apply.'" 51 The
opinion went on to say: "Nor is the excerpt from Justice
Story, speaking for the United States Supreme Court,
in Martin v. Mott, as made clear in the opinion of the
Chief Justice, an authority directly in point. There, a
militiaman had been convicted of failing to respond to a
call, made under the Act of 1795, to serve during the
War of 1812. His property was taken to satisfy the
judgment. He brought an action of replevin. The
American Constitution empowers its Congress 'to
provide for calling forth the Militia' in certain cases, and
Congress did provide that in those cases the President
should have authority to make the call." All that Justice
Story did in construing the statute in the light of the
language and purpose of her Constitution was to
recognize the authority of the American President to
decide whether the exigency has arisen. In stating that
such power was exclusive and thus had a conclusive
effect, he relied on the language employed, impressed
with such a character. The constitutional provision on the
suspension of the privilege of the writ is, as shown,
anything but that. Chief Justice Taney in Luther v.
Borden, likewise had to deal with a situation involving
the calling out of the militia. As a matter of fact, an
eminent commentator speaking of the two above
decisions had this apt observation: "The common
element in these opinions would seem to be a genuine
judicial reluctance to speak in a situation where the voice
of the Court, even if heard, could not have any effect.
More than this, both Story and Taney seem to share the
suspicion, unusual in them, that under a popular form of
government there are certain questions that the political
branches must be trusted to answer with finality. What
was said next is even more pertinent. Thus: 'It would be
dangerous and misleading to push the principles of
these cases too far, especially the doctrine of "political
questions" as implied in Luther v. Borden. Given the
opportunity to afford a grievously injured citizen relief
from a palpably unwarranted use of presidential or
military power, especially when the question at issue
falls in the penumbra between the "political" and the
"justiciable", the Court will act as if it had never heard of
this doctrine and its underlying assumption that there are
some powers against which the judiciary simply cannot
be expected to act as the last line of defense.' It would
thus seem evident that support for the hitherto prevailing
Montenegro ruling was rather frail. Happily, with our
decision, it is no longer capable of the mischief to which
it does lend itself of an undue diminution of judicial
power to the prejudice of constitutional rights." 52
14. An opinion of a court, especially this Tribunal, should
not ignore the environmental facts which gave rise to a
litigation where the issues arise from problems
inseparable from national security. There is, in addition,
the need to take into consideration the pressure of
contemporary events. For as has so often been
stressed, judicial process does not take place in a social
void. The questions before the Court are to be viewed
with full awareness of the consequences attendant to the
decision reached. As so tersely expressed by Justice
Tuason in Araneta v. Dinglasan:" 53 "We test a rule by its
results." 54 More often than not especially during times of
stress, it is inescapable that efforts be made to reconcile
time-tested principles to contemporary problems. The
judiciary is called upon to do its part. There is wisdom in
these words of Justice Tuason from the same opinion:
"The truth is that under our concept of constitutional
government, in times of extreme perils more than in
normal circumstances, 'The various branches, executive,
legislative, and judicial,' given the ability to act, are
called upon 'to perform the duties and discharge the
responsibilities committed to them respectively.'" 55 To
repeat, I accord the fullest respect to the mode and
manner in which my brethren performed their duty and
discharged their responsibility in passing upon the
transcendental question raised in this petition. With the
basic premise of robust concern for individual rights to
which I have been committed,however, I have no choice
except to vote the way I did, even if for those whose
opinions I value conformity with the hitherto
unquestioned verities may at times prove to be less than
adequate to meet the exigencies of the turbulent
present.
TEEHANKEE, J., dissenting:
I am constrained to dissent from the all-encompassing
scope of the main opinion of Mr. Justice de Castro which
would overturn the landmark doctrine of Lansang vs.
Garcia 1 which upheld the Supreme Court's authority to
inquire into the existence of factual bases for the
President's suspension of the privilege of the writ of
habeas corpus in order to determine the constitutional
sufficiency thereof and would revert to the retrogressive
and colonial era ruling of Barcelon vs.
Baker 2 and Montenegro vs. Castañeda 3 that the
President's decision to so suspend the privilege of the
writ "is final and conclusive upon the courts and all other
persons," and would further deny the right to bail even
after the filing of charges in court to persons detained
under Presidential Commitment Orders.
This case, as in other like cases, focuses on the
grievances that persons detained or charged for the
crimes of insurrection, rebellion, subversion, conspiracy
or proposal to commit such crimes, invariably bring to
this Court. They complain, as petitioners do here, of
being arrested without any warrant of arrest; of being
informed of purported telegrams concerning the
issuance of a Presidential Commitment Order PCO
authorizing their arrest and detention, but that they are
not given a copy of such PCO nor notified of its contents,
raising doubts whether such PCO has in fact been
issued; of being kept in isolation or transferred to so-
called "safehouses" and being denied of their
constitutional right to counsel and to silence; of
prolonged detention without charges; "of a seeming
deliberate and concerted effort by respondents to
conceal from counsel and relatives the detainees' place
of detention, raising the apprehension that respondents
are using force, violence, threat, intimidation and other
means which vitiate free will to obtain confessions and
statements from the detainees in violation of their
constitutional rights;" and of their counsel and families
undergoing great difficulties in locating or having access
to them (main opinion at p. 3).
The State through the Solicitor General on the other
hand invariably denies all such charges and submits
affidavits of the arresting officers and detention
custodian that detainees are afforded decent and
humane treatment, further countering that such claims
are merely calculated to arouse sympathy and as
propaganda against the Government and its institutions.
In many such cases, however, the Court in issuing the
writ of habeas corpus requiring respondents to make a
return of the writ includes a resolution, in recognition of
the detainees' constitutional rights, "to allow counsel for
petitioners to visit and confer with the detainee(s) in an
atmosphere of confidentiality consistent with reasonable
security measures which respondents may impose." 4 In
other cases where respondents military officials have
allegedly denied having in their custody the person(s)
detained, the Court has issued its resolution "on the
assumption that the detained person is in the custody of
respondents, that there be due observance and respect
of his right to counsel and other constitutional rights by
respondents." 5
Respondents' return through the Solicitor General in the
case at bar states that the detainees are all detained by
virtue of a Presidential Commitment Order issued on
July 12, 1982 (several days after their arrest without
warrant on July 6 and 7, 1982) and that corresponding
charges against the detainees were filed in court and
before the Acting Provincial Fiscal of Nueva Viscaya
where they are pending. As to the detainee Dr. Aurora
Parong, the return further states that a warrant of arrest
was issued against her on August 4, 1982 by the
Municipal Court of Bayombong for illegal possession of a
firearm and ammunition. As in all other returns in similar
cases, the Solicitor General asserts "that the privilege of
the writ of habeas corpus is unavailing as to them.
Courts cannot inquire into the validity and cause of their
arrest and detention" by virtue of the continued
suspension, under Presidential Proclamation No. 2045
(which proclaimed the termination of martial law in the
Philippines), of the privilege of the writ of habeas corpus
in the two autonomous regions in Mindanao and in all
other places with respect to persons detained for
suspected involvement in crimes related to national
security.
The main opinion confronts the question of whether the
issuance of a Presidential Commitment Order (PCO) has
provided the legal basis of the detention of herein
detainees following their arrest for Proclamation No.
2045-covered offenses," and remarks that "this question
has to be set at rest promptly and decisively, if we are to
break a seemingly continuous flow of petitions for
habeas corpus, as what had been seen lately of such
petitions being filed in this Court one after the other.
I. I submit that the resolution of the issues in this case
does not call for the all-encompassing ruling in the main
opinion with its sweeping scope that would reexamine
and overturn the benchmark ruling in Lansang. The
limited suspension of the privilege of the writ of habeas
corpus in the two instances provided under Presidential
Proclamation No. 2045 has not been challenged in this
case. So, what's the point of an advance declaration that
all checks and barriers are down? Lansang recognizes
the greatest deference and respect that is due the
President's determination for the necessity of
suspending the privilege of the writ of habeas corpus.
But Lansang sets at the same time the constitutional
confines and limits of the President's power to suspend
the privilege of the writ and enunciates the constitutional
test, not of the correctness of the President's decision,
but that the President's decision to suspend the privilege
not suffer from the constitutional infirmity of
arbitrariness. 6 Thus, after laying the premise "that every
case must depend on its own circumstances," the Court
therein thru then Chief Justice Roberto Concepcion held
that:
Indeed, the grant of power to suspend the
privilege is neither absolute nor unqualified. The
authority conferred by the Constitution, both
under the Bill of Rights and under the Executive
Department, is limited and conditional. The
precept in the Bill of Rights establishes a
general rule, as well as an exception thereto.
What is more, it postulates the former in
the negative, evidently to stress its importance,
by providing that '(t)he privilege of the writ of
habeas corpus shall not be suspended ....' It is
only by way of exception that it permits the
suspension of the privilege 'in cases of invasion,
insurrection, or rebellion'- or, under Art. VII of the
Constitution, 'imminent danger thereof '- 'when
the public safety requires it, in any of which
events the same may be suspended wherever
during such period the necessity for such
suspension shall exist.' Far from being fun 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 ? the place
where it may be exercised. These factors and
the aforementioned setting or conditions mark,
establish and define the extent, the confines and
the limits of said power, beyond which it does
not exist. And, like the limitations and restrictions
imposed by the Fundamental Law upon the
legislative department, adherence thereto and
compliance therewith may, within proper
bounds, be inquired into by courts of justice.
Otherwise, the explicit constitutional provisions
thereon would be meaningless. Surely, the
framers of our Constitution could not have
intended to engage in such a wasteful exercise
in futility.
Much less may the assumption be indulged in
when we bear in mind that our political system is
essentially democratic and republican in
character and that the suspension of the
privilege affects the most fundamental element
of that system. namely, individual freedom.
Indeed, such freedom includes and connotes, as
well as demands, the right of every single
member of our citizenry to freely discuss and
dissent from, as well as criticize and denounce,
the views, the policies and the practices of the
government and the party in power that he
deems unwise, improper or inimical to the
commonwealth, regardless of whether his own
opinion is objectively correct or not. The
untrammelled enjoyment and exercise of such
right-which, under certain conditions, may be a
civic duty of the highest order is-vital to the
democratic system and essential to its
successful operation and wholesome growth
and development.
Manifestly, however, the liberty guaranteed and
protected by our Basic Law is one enjoyed and
exercise, not in derogation thereof, but
consistently therewith, and, hence, within the
framework of the social order established by the
Constitution and the context of the Rule of Law.
Accordingly, when individual freedom is used to
 destroy that social order, by means of force and
violence, in defiance of the Rule of Law such as
by rising publicly and taking arms against the
government to overthrow the same, thereby
committing the crime of rebellion- there emerges
a circumstance that may warrant a limited
withdrawal of the aforementioned guarantee or
protection, by suspending the privilege of the
writ of habeas corpus, when public safety
requires it. Although we must before warned
against mistaking mere dissent- no matter how
emphatic or intemperate it may be-for
dissidence amounting to rebellion or
insurrection, the Court cannot hesitate, much
less refuse- when the existence of such rebellion
or insurrection has been fairly established or
cannot reasonably be denied- to uphold the
finding of the Executive thereon, without, in
effect, encroaching upon a power vested in him
by the Supreme Law of the land and depriving
him, to this extent, of such power, and,
therefore, without violating the Constitution and
jeopardizing the very Rule of Law the Court is
called upon to epitomize. " 7
II. The crucial issue at bar is that adversely decided by
the main opinion, denying petitioners' motion that the
Court order their release on bail, on the ground that the
suspension of the privilege of the writ of habeas corpus
for any of the offenses covered by Proclamation No.
2045 "includes, as a necessary consequence, the
withholding for the duration of the suspension of the
privilege of the right to bail" (main opinion, at page 16).
1. I submit that notwithstanding the suspension of the
privilege of the writ of habeas corpus and the issuance
on March 9, 1982 of Letter of Instruction No. 1211 that
the Presidential Commitment Order constitutes authority
to keep the subject person under detention "until ordered
released by the President or his duly authorized
representative" (which is a mere internal instruction to
certain agencies), the higher and superior mandate of
the Constitution guarantees the right to bail and vests
the courts with the jurisdiction and judicial power to grant
bail which may not be removed nor diminished nor
abdicated. We cannot but so hold, if we are to be true to
the fundamental precept that "The Constitution is a law
for rulers and for people equally in war and in peace and
covers with the shield of its protection all classes of men
at all times and under all circumstances."
The argument that otherwise the purpose of the
suspension of the privilege would be defeated ignores
the overwhelming capability of the State and its military
and police forces to keep suspects under surveillance
and the courts' imposition of reasonable conditions in
granting bail, such as periodic reports to the authorities
concerned, and prohibiting their going to certain critical
areas.
2. The most authoritative pronouncement in this regard
is of course none other than the President's himself. In
all the metropolitan newspapers of April 20, 1983, the
President is reported to have "said that Pimentel has
been charged with rebellion before the regional trial
court of Cebu City and is therefore under the jurisdiction
of the civil court and not only under the jurisdiction of the
military by virtue of the PCO." In a telegram in reply to
the appeal of Msgr. Patrick Cronin, Archbishop of
Cagayan de Oro and Misamis Oriental, for lifting of the
PCO on Mayor Aquilino Pimentel of Cagayan de Oro
City, the President said that "(T)he disposal of the body
of the accused, as any lawyer will inform you, is now
within the powers of the regional trial court of Cebu City
and not within the powers of the President. "
3. This is but in consonance with the majority holding in
the leading 1951 cases of Nava vs.
Gatmaitan andHernandez vs. Montesa 8 (although it
failed one vote short of the required majority of six
affirmative votes at the time) as expounded by then
Chief Justice Ricardo Paras and Associate Justice (later
Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after
formal indictment in court by the filing against them of an
information charging rebellion with multiple murder, etc.,
accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus
are entitled to the right to bail.
4. As stressed by then Chief Justice Ricardo Paras,
"(T)he right to bail, along with the right of an accused to
be heard by himself and counsel to be informed of the
nature and cause of the accusation against him, to have
a speedy and public trial, to meet the witnesses face to
face, and to have compulsory process to secure the
attendance of witnesses in his behalf (Article III, Section
1, Paragraph 17, of the Constitution), tends to aid the
accused to prove his innocence and obtain acquittal. If it
be contended that the suspension of the privilege of the
writ of habeas corpus includes the suspension of the
distinct right to bail or to be provisionally at liberty, it
would a fortiori imply the suspension of all his other
rights (even the right to be tried by a court) that may win
for him ultimate acquittal and, hence, absolute
freedom. The latter result is not insisted upon for being
patently untenable. "
Then Chief Justice Paras stressed that "... The privilege
of the writ of habeas corpus and the right to bail
guaranteed under the Bill of Rights are separate and co-
equal. If the intention of the framers of the Constitution
was that the suspension of the privilege of the writ of
habeas corpus carries or implies the suspension of the
right to bail, they would have very easily provided that all
persons shall before conviction be bailable by sufficient
sureties, except those charged with capital offenses
when evidence of guilt is strong and except when the
privilege of the writ of habeas corpus is suspended. As
stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L.
ed. 297, the Constitution limited the suspension to only
one great right, leaving the rest to remain forever
inviolable. "
5. It is noteworthy and supportive of the prevailing stand
since 1951 that the other great constitutional rights
remain forever inviolable since the Constitution limited
the suspension to only one great right (of the privilege of
the writ of habeas corpus), that there has been no
amendment of the Constitution to curtail the right to bail
in case of such suspension notwithstanding the
numerous constitutional amendments adopted after the
1973 Constitution.
6. The late Justice Pedro Tuason emphasized that "(T)o
the plea that the security of the State would be
jeopardized by the release of the defendants on bail, the
answer is that the existence of danger is never a
justification for courts to tamper with the fundamental
rights expressly granted by the Constitution. These
rights are immutable, inflexible, yielding to no pressure
of convenience, expediency or the so-called 'judicial
statesmanship.' The Legislature itself cannot infringe
them, and no court conscious of its responsibilities and
limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to
the Nation, let the Constitution be amended, or
abolished. It is trite to say that, while the Constitution
stands, the courts of justice as the repository of civil
liberty are bound to protect and maintain undiluted
individual rights."
7. And former Chief Justice Cesar Bengzon then made
the same forceful plea echoed these days by men of
goodwill that respect for constitutional and human rights
and adherence to the rule of law would help in the fight
against rebellion and movement for national
reconciliation, thus: "And in my opinion, one of the surest
means to ease the uprising is a sincere demonstration of
this Government's adherence to the principles of the
Constitution together with an impartial application thereof
to all citizens, whether dissidents or not. Let the rebels
have no reason to apprehend that their comrades now
under custody are being railroaded into Muntinglupa,
without benefit of those fundamental privileges which the
experience of the ages has deemed essential for the
protection of all persons accused of crime before the
tribunal of justice. Give them the assurance that the
judiciary, ever mindful of its sacred mission, will not, thru
faulty or misplaced devotion, uphold any doubtful claims
of governmental power in diminution of individual rights,
but will always cling to the principles uttered long ago by
Chief Justice Marshall that when in doubt as to the
construction of the Constitution, 'The Courts will favor
personal liberty.'"
8. The right to bail cannot just be cancelled out
summarily because of the issuance of a PCO In the case
at bar, detainee Dr. Aurora Parong is charged in the
municipal court with the crime of illegal possession of
firearm, which is a clearly bailable offense. The charges
filed against the other detainees are likewise for clearly
bailable offenses. It is elementary that the right to bail in
non-capital offenses and even in capital offenses where
evidence of guilt is not strong will be generally granted
and respected by the courts, "the natural tendency of the
courts (being) towards a fair and liberal appreciation,"
particularly taking into consideration the record and
standing of the person charged and the unlikelihood of
his fleeing the court's jurisdiction.
As the Court held in the leading case of Montano vs.
Ocampo 9 wherein the Supreme Court granted bail to
Senator Montano who was charged with multiple
murders and frustrated murders:
Brushing aside the charge that the prelimiminary
investigation of this case by the aforesaid Judge
was railroaded, the same having been
conducted at midnight, a few hours after the
complaint was filed, we are of the opinion that,
upon the evidence adduced in the applicaction
for bail in the lower court, as such evidence is
recited lengthily in the present petition and the
answer thereto, and extensively analyzed and
discussed in the oral argument, there is not such
clear showing of guilt as would preclude all
reasonable probability of any other conclusion.
Exclusion from bail in capital offenses being
an exception to the otherwise absolute
right guaranteed by the constitution, the natural
tendency of the courts has been toward a fair
and liberal appreciation, rather than otherwise ,
of the evidence in the determination of the
degree of proof and presumption of guilt
necessary to war. rant a deprivation of that right.
Besides, to deny bail it is not enough that the
evidence of guilt is strong; it must also appear
that in case of conviction the defendant 's liability
would probably call for a capital punishment. No
clear or conclusive showing before this Court
has been made.
In the evaluation of the evidence the probability
of flight is one other important factor to be taken
 into account. The sole purpose of confining
accusedin jail before conviction, it has been
observed, is to assure his presence at the trial.
In other words, if denial of bail is authorized in
capital cases, it is only on the theory that the
proof being strong, the dependant would flee, if
he has the opportunity, rather than face the
verdict of the jury. Hence the exception to the
fundamental right to be bailed should be applied
in direct ratio to the extent of the probability of
evasion of prosecution.
The possibility of escape in this case, bearing in
mind the defendant's official and social
standing and his other personal
circumstances, seems remote if not nil."
In the recent case of Sobremonte vs. Enrile, 10 the
detainee was released upon her filing of the
recommended P1,000.00 bail bond for the offense of
possession of subversive literature with which she was
charged and the habeas corpus petition, like many
others, although dismissed for having thereby become
moot, accomplished the purpose of securing the
accused's release from prolonged detention. The Court
had occasion to decry therein that "all the effort, energy
and manhours expended by the parties and their
counsel, including this Court, ... could have been
avoided had the officers of the AVSECOM and the
ISAFP responded promptly to the inquiries of petitioner
instead of giving her the 'run-around' by referring her
from one office to another."
9. "The continuous flow of petitions for habeas corpus"
filed with this Court should not be decried nor
discouraged. The Court stands as the guarantor of the
constitutional and human rights of all persons within its
jurisdiction and must see to it that the rights are
respected and enforced. It is settled in his jurisdiction
that once a deprivation of a constitutional right is shown
to exist, the court that rendered the judgment or before
whom the case is pending is ousted of jurisdiction and
habeas corpus is the appropriate remedy to assail the
legality of the detention. 11 So accused persons deprived
of the constitutional right of speedy trial have been set
free. 12 And likewise persons detained indefinitely
without charges so much so that the detention becomes
punitive and not merely preventive in character are
entitled to regain their freedom. The spirit and letter of
our Constitution negates as contrary to the basic
precepts of human rights and freedom that a person be
detained indefinitely without any charges.
III. The main opinion invokes "a time of war or grave peril
to the nation" (at page 16), oblivious of the Presidents
lifting of martial law under Proclamation No. 2045 on
January 17, 1981 and the specific premises therein set
forth that
WHEREAS, the Filipino people, having subdued
threats to the stability of government, public
order and security, are aware that the time has
come to consolidate the gains attained by the
nation under a state of martial law by assuming
their normal political roles and shaping the
national destiny within the framework of civil
government and popular democracy:
WHEREAS, the experience gained by the nation
under martial law in subduing threats to the
stability of the government, public order and
security, has enabled the Filipino people to
rediscover their confidence in their ability to
command the resources of national unity,
patriotism, discipline and sense of common
destiny;
 WHEREAS, the government and the people are
at the same time also aware that the public
safety continues to require a degree of capability
to deal adequately with elements who persist in
endeavoring to overthrow the government by
violent means and exploiting every opportunity
to disrupt the peaceful and productive labors of
the government; ..."
As to the "self-evident" submittal of the main opinion 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" (at page 16), I can only recall the
exhortation of the Holy Father John Paul II in his address
to the Philippine nation on February 17, 1981, thus:
"Even in exceptional situations that may at times arise,
one can never justify any violation of the fundamental
dignity of the human person or of the basic rights that
safeguard this dignity. Legitimate concern for the
security of a nation, as demanded by the common good,
could lead to the temptation of subjugating to the State
the human being and his or her dignity and rights. Any
apparent conflict between the exigencies of security and
of the citizens' basic rights must be resolved according
to the fundamental principle-upheld always by the
Church- that social organization exists only for the
service of man and for the protection of his dignity, and
that it cannot claim to serve the common good when
human rights are not safeguaded. People will have faith
in the safeguarding of their security and the promotion of
their well-being only to the extent that they feel truly
involved, and supported in their very humanity."
Footnotes
1 212 U.S. 416, 417.
2 59 SCRA 183 (1974).
3 Moyer vs. Peabody, 212 U.S. 78, citing Keely
vs. Sanders, 99 U.S. 441, 446, 25 L. Ed. 327,
328.
4 Lansang vs. Garcia, 42 SCRA 488.
5 Section 9, Article VII, Constitution.
6 Encyclopedia of the Social Sciences, Vol. VIII,
p. 236, 1950 Ed.
7 Political Law of the Philippines by Senator
Lorenzo Tañada and Atty. Francisco Carreon,
Vol. II p. 236.
8 109 SCRA 273.
9 Lansang vs. Garcia, supra
10 Section 6, 1976 Amendment to the
Constitution.
11 Nava vs. Gatmaitan, 90 Phil. 172.
* The ruling was non-doctrinal for lack of the
necessary votes.
12 Ex parte Milligan, 4 Wallace 2 (1866).
13 Section 15, Article VIII, 1973 Constitution.
14 As explained in Tañada, et al. vs. Cuenco, et
al. (103 Phil. 1051), term "political question"
connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy.
It refers to those questions, which, under the
Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which
full discretionary authority has been delegated to
the Legislature or Executive branch of the
Government (16 C.J.S. 413).
15 Ex parte Merryman, Federal Case No. 9487
(1861).
FERNANDO J.
1 Decision, 17.
2 L-33964, December 11, 1971, 42 SCRA 448.
3 5 Phil. 87 (1905).
4 91 Phil. 882 (1952).
5 L-32613, December 27, 1972, 48 SCRA 382.
6 L-35546, September 17, 1974, 59 SCRA 183.
7 L-37364, May 9,1975,63 SCRA 546.
8 1 Cranch 137 (1803).
9 63 Phil. 139 (1936).
10 Cf. In addition to Angara, there is likewise the
case of Tañada v. Cuenco, 103 Phil. 1051
(1957).
11 Black, The People and the Court, 8 (1960).
12 Ibid., 8-9.
13 L-35546, September 17, 1974, 59 SCRA
183.
14 Ibid., 286.
15 L-30026, January 30,1971, 37 SCRA 420.
16 Ibid., 423.
17 Ibid., 423-424. The quotation from Chafee is
found in The Most Important Human Right in the
Constitution, 32 Boston Univ. Law Rev. 143
(1947); from Cooley in 2 Constitutional
Limitations 709 (1927); from Willoughby in 3 on
the Constitution 1612 (1929); from Burdick in the
Law of the American Constitution 27 (1922);
from Fraenkel in Our Civil Liberties 6 (1944).
18 372 US 391 (1963).
19 Ibid., 399-400.
20 Cf. Lansang v. Garcia, L-33964, December
11, 1971, 42 SCRA 448; Barcelon v. Baker, 5
Phil. 87 (1905); Montenegro v. Castaneda, 91
Phil. 882 (1952).
21 Proclamation No. 2045 (1981).
22 Ibid.
23 Article VII, Sec. 9 of the Constitution.
24 42 SCRA 448, 488.
25 212 US 78.
26 Ibid., 83.
27 Ibid., 84-85.
28 Ibid., 86.
29 According to Article IV, Sec. 18 of the
Constitution: "All persons, except those charged
with capital offenses when evidence of guilt is
strong, shall before conviction, be bailable by
sufficient sureties. Excessive bail shall not be
required. "
30 90 Phil. 172 (1951). It is reported along with
Nava v. Gatmaitan and Angeles v. Abaya in a
single resolution.
31 42 SCRA 448.
32 L-47185, January 15, 1981, 102 SCRA 7.
33 Suffian, (1976), An Introduction to the
Constitution of Malaysia, 226.
34 Cf. Malaysia Soo Kua v. Public Prosecutor
[1970] 1. Malaysian Law Journal 91; Karam
Singh v. The Minister of Internal Affairs [1969] 2.
Malaysian Law Journal 129; Phong Chin Hock v.
Public Prosecutor (1977) 1 Malaysian Law
Journal 70. The above provision is likewise
applicable to Singapore. This decision from that
jurisdiction may be cited: Lim Hock Siew v.
Minister of Interior and Defense [1918] 2
Malaysian Law Journal 219. There is likewise
relevance to these articles: Hickling, The
Prerogative in Malaysia 17 Malaya Law Review
207 (1975) and Jayakumar, Emergency Powers
in Malaysia 18 Malaya Law Review 149 (1976).
35 Jain, Judicial Creativity and Preventive
Detention in India, 262.
36 Ibid.
37 Ibid., Liversidge is reported in [1942] A.C.
206.
38 Ibid., 263.
39 Ibid., 263-264.
40 Ibid., 263.
41 Ibid., 303-304.
42 Ibid., 304.
43 I had a separate opinion, dissenting in part,
but I concurred in the holding that the question is
judicial rather than political.
44 42 SCRA 448, 473-474.
45 Ibid., 474-475.
46 Ibid., 475.
47 Ibid., 479-480.
48 Ibid., 480.
49 5 Phil. 87.
50 91 Phil. 882 (1952).
51 42 SCRA 448, 505-506.
52 Ibid., 506-507.
53 84 Phil. 368 (1949).
54 Ibid., 376.
55 Ibid., 383.
TEEHANKEE J.
1 42 SCRA 448 (1971).
2 5 Phil. 87 (1905).
3 91 Phil. 882 (1952).
4 Resolution of July 30, 1982 in G.R. No. 61016
In re: Petition for Habeas Corpus of Horacio R.
Morales, Jr.
5 Resolution of April 4, 1983 in G.R. No. 63581
In re: Petition for Habeas Corpus of Carl
Gaspar.
6 42 SCRA at page 481.
7 Idem, at pages 473-475; emphasis copied.
8 Jointly decided with Angeles vs. Abaya and
reported in 90 Phil. 172 (1951).
9 G.R. L-6352. Resolution of Jan. 29, 1953. 49
O.G. 1855; emphasis supplied. See Villasenor
vs. Abancio, 21 SCRA 321.
10 G.R. No. 60602, Sept. 30, 1982, per Escolin,
J.
11 Gumabon v. Director of Prisons, 37 SCRA
420, 427.
12 Conde vs. Diaz, 45 Phil. 173.
FIRST DIVISION

[G.R. No. 113539. March 12, 1998]

CELSO R. HALILI and ARTHUR R.

HALILI, petitioners, vs. COURT OF APPEALS,
HELEN MEYERS GUZMAN, DAVID REY GUZMAN
and EMILIANO CATANIAG, respondents.
DECISION
PANGANIBAN, J.:
The factual findings of a trial court, when affirmed by
the Court of Appeals, may no longer be reviewed and
reversed by this Court in a petition for review under Rule
45 of the Rules of Court. The transfer of an interest in a
piece of land to an alien may no longer be assailed on
constitutional grounds after the entire parcel has been
sold to a qualified citizen.

The Case

These familiar and long-settled doctrines are applied

by this Court in denying this petition under Rule 45 to set
aside the Decision[1] of the Court of Appeals[2] in CA-GR
CV No. 37829 promulgated on September 14, 1993, the
dispositive portion of which states:[3]
WHEREFORE, and upon all the foregoing, the Decision
of the court below dated March 10, 1992 dismissing the
complaint for lack of merit is AFFIRMED without
pronouncement as to costs.

The Facts
 The factual antecedents, as narrated by Respondent
Court, are not disputed by the parties. We reproduce
them in part, as follows:
Simeon de Guzman, an American citizen, died
sometime in 1968, leaving real properties in the
Philippines. His forced heirs were his widow,
defendant appellee [herein private respondent] Helen
Meyers Guzman, and his son, defendant appellee
[also herein private respondent] David Rey Guzman,
both of whom are also American citizens. On August
9, 1989, Helen executed a deed of quitclaim (Annex
A-Complaint), assigning[,] transferring and conveying
to David Rey all her rights, titles and interests in and
over six parcels of land which the two of them
inherited from Simeon.
Among the said parcels of land is that now in
litigation, x x x situated in Bagbaguin, Sta. Maria,
Bulacan, containing an area of 6,695 square meters,
covered by Transfer Certificate of Title No. T-170514
of the Registry of Deeds of Bulacan. The quitclaim
having been registered, TCT No. T-170514 was
cancelled and TCT No. T-120259 was issued in the
name of appellee David Rey Guzman.
On February 5, 1991, David Rey Guzman sold
said parcel of land to defendant-appellee [also herein
private respondent] Emiliano Cataniag, upon which
TCT No. T-120259 was cancelled and TCT No. T-
130721(M) was issued in the latters name.[4]
Petitioners, who are owners of the adjoining lot, filed a
complaint before the Regional Trial Court of Malolos,
Bulacan, questioning the constitutionality and validity of
the two conveyances -- between Helen Guzman and
David Rey Guzman, and between the latter and Emiliano
Cataniag -- and claiming ownership thereto based on
their right of legal redemption under Art. 1621[5]of the
Civil Code.
In its decision[6] dated March 10, 1992,[7] the trial court
dismissed the complaint. It ruled that Helen Guzmans
waiver of her inheritance in favor of her son was not
contrary to the constitutional prohibition against the sale
of land to an alien, since the purpose of the waiver was
simply to authorize David Rey Guzman to dispose of
their properties in accordance with the Constitution and
the laws of the Philippines, and not to subvert them.On
the second issue, it held that the subject land was urban;
hence, petitioners had no reason to invoke their right of
redemption under Art. 1621 of the Civil Code.
The Halilis sought a reversal from the Court of
Appeals which, however, denied their
appeal. Respondent Court affirmed the factual finding of
the trial court that the subject land was
urban. Citing Tejido vs. Zamacoma[8] and Yap vs.
Grageda,[9] it further held that, although the transfer of
the land to David Rey may have been invalid for being
contrary to the Constitution, there was no more point in
allowing herein petitioners to recover the property, since
it has passed on to and was thus already owned by a
qualified person.
Hence, this petition.[10]

Issues

The petition submits the following assignment of

errors:
x x x the Honorable Court of Appeals -
1. Erred in affirming the conclusion of the trial court that
the land in question is urban, not rural
2. Erred in denying petitioners right of redemption under
Art. 1621 of the Civil Code
3. Having considered the conveyance from Helen
Meyers Guzman to her son David Rey Guzman
illegal, erred in not declaring the same null and
void[.][11]

The Courts Ruling

The petition has no merit.

First Issue: The Land Is Urban;

Thus, No Right of Redemption

The first two errors assigned by petitioners being

interrelated -- the determination of the first being a
prerequisite to the resolution of the second -- shall be
discussed together.
Subject Land Is Urban
Whether the land in dispute is rural or urban is a
factual question which, as a rule, is not reviewable by
this Court.[12] Basic and long-settled is the doctrine that
findings of fact of a trial judge, when affirmed by the
Court of Appeals, are binding upon the Supreme
Court. This admits of only a few exceptions, such as
when the findings are grounded entirely on speculation,
surmises or conjectures; when an inference made by the
appellate court from its factual findings is manifestly
mistaken, absurd or impossible; when there is grave
abuse of discretion in the appreciation of facts; when the
findings of the appellate court go beyond the issues of
the case, run contrary to the admissions of the parties to
the case or fail to notice certain relevant facts which, if
properly considered, will justify a different conclusion;
when there is a misappreciation of facts; when the
findings of fact are conclusions without mention of the
specific evidence on which they are based, are premised
on the absence of evidence or are contradicted by
evidence on record.[13]
The instant case does not fall within any of the
aforecited exceptions. In fact, the conclusion of the trial
court -- that the subject property is urban land -- is based
on clear and convincing evidence, as shown in its
decision which disposed thus:
x x x As observed by the court, almost all the roadsides
along the national ghighway [sic] of Bagbaguin, Sta.
Maria, Bulacan, are lined up with residential, commercial
or industrial establishments. Lined up along the
Bagbaguin Road are factories of feeds, woodcrafts [sic]
and garments, commercial stores for tires, upholstery
materials, feeds supply and spare parts. Located therein
likewise were the Pepsi-Cola Warehouse, the Cruz
Hospital, three gasoline stations, apartment buildings for
commercial purposes and construction firms. There is no
doubt, therefore, that the community is a commercial
area thriving in business activities. Only a short portion
of said road [is] vacant. It is to be noted that in the Tax
Declaration in the name of Helen Meyers Guzman[,] the
subject land is termed agricultural[,] while in the letter
addressed to defendant Emiliano Cataniag, dated
October 3, 1991, the Land Regulatory Board attested
that the subject property is commercial and the trend of
development along the road is commercial. The Boards
classification is based on the present condition of the
property and the community thereat. Said classification
is far more later [sic] than the tax declaration.[14]
No Ground to Invoke Right of Redemption
In view of the finding that the subject land is urban in
character, petitioners have indeed no right to invoke Art.
1621 of the Civil Code, which presupposes that the land
sought to be redeemed is rural. The provision is clearly
worded and admits of no ambiguity in construction:
ART. 1621. The owners of adjoining lands shall
also have the right of redemption when a piece of
rural land, the area of which does not exceed one
hectare, is alienated, unless the grantee does not own
any rural land.
xxx xxx xxx
Under this article, both lands -- that sought to be
redeemed and the adjacent lot belonging to the person
exercising the right of redemption -- must be rural. If one
or both are urban, the right cannot be invoked.[15] The
purpose of this provision which is limited in scope to
rural lands not exceeding one hectare, is to favor
agricultural development.[16] The subject land not being
rural and, therefore, not agricultural, this purpose would
not be served if petitioners are granted the right of
redemption under Art. 1621. Plainly, under the
circumstances, they cannot invoke it.

Second Issue: Sale to Cataniag Valid

Neither do we find any reversible error in the appellate

courts holding that the sale of the subject land to Private
Respondent Cataniag renders moot any question on the
constitutionality of the prior transfer made by Helen
Guzman to her son David Rey.
True, Helen Guzmans deed of quitclaim -- in which
she assigned, transferred and conveyed to David Rey all
her rights, titles and interests over the property she had
inherited from her husband -- collided with the
Constitution, Article XII, Section 7 of which provides:
SEC. 7. Save in cases of hereditary succession,
no private lands shall be transferred or conveyed
 except to individuals, corporations, or associations
qualified to acquire or hold lands of the public domain.
The landmark case of Krivenko vs. Register of
Deeds[17] settled the issue as to who are qualified (and
disqualified) to own public as well as private lands in the
Philippines.Following a long discourse maintaining that
the public agricultural lands mentioned in Section 1,
Article XIII of the 1935 Constitution, include residential,
commercial and industrial lands, the Court then stated:
Under section 1 of Article XIII [now Sec. 2, Art. XII] of
the Constitution, natural resources, with the exception
of public agricultural land, shall not be alienated, and
with respect to public agricultural lands, their
alienation is limited to Filipino citizens.But this
constitutional purpose conserving agricultural
resources in the hands of Filipino citizens may easily
be defeated by the Filipino citizens themselves who
may alienate their agricultural lands in favor of
aliens. It is partly to prevent this result that section 5 is
included in Article XIII, and it reads as follows:
Sec. 5. Save in cases of hereditary succession, no
private agricultural land will be transferred or assigned
except to individuals, corporations or associations
qualified to acquire or hold lands of the public domain
in the Philippines.
This constitutional provision closes the only remaining
avenue through which agricultural resources may leak
into aliens hands. It would certainly be futile to prohibit
the alienation of public agricultural lands to aliens if,
after all, they may be freely so alienated upon their
becoming private agricultural lands in the hands of
Filipino citizens. Undoubtedly, as above indicated,
section 5 [now Sec. 7] is intended to insure the policy
of nationalization contained in section 1 [now Sec.
2]. Both sections must, therefore, be read together for
 they have the same purpose and the same subject
matter. It must be noticed that the persons against
whom the prohibition is directed in section 5 [now Sec.
7] are the very same persons who under section 1
[now Sec. 2] are disqualified to acquire or hold lands
of the public domain in the Philippines. And the
subject matter of both sections is the same, namely,
the non transferability of agricultural land to aliens. x x
x[18]
The Krivenko rule was recently reiterated
in Ong Ching Po vs. Court of Appeals,[19]which involves
a sale of land to a Chinese citizen. The Court said:
The capacity to acquire private land is made
dependent upon the capacity to acquire or hold lands
of the public domain. Private land may be transferred
or conveyed only to individuals or entities qualified to
acquire lands of the public domain (II Bernas, The
Constitution of the Philippines 439-440 [1988 ed.]).
The 1935 Constitution reserved the right to
participate in the disposition, exploitation,
development and utilization of all lands of the public
domain and other natural resources of the Philippines
for Filipino citizens or corporations at least sixty
percent of the capital of which was owned by
Filipinos. Aliens, whether individuals or corporations,
have been disqualified from acquiring public lands;
hence, they have also been disqualified from
acquiring private lands.[20]
In fine, non-Filipinos cannot acquire or hold title to
private lands or to lands of the public domain, except
only by way of legal succession.[21]
But what is the effect of a subsequent sale by the
disqualified alien vendee to a qualified Filipino
citizen? This is not a novel question. Jurisprudence is
consistent that if land is invalidly transferred to an alien
who subsequently becomes a citizen or transfers it to a
citizen, the flaw in the original transaction is considered
cured and the title of the transferee is rendered valid.[22]
Thus, in United Church Board of World Ministries vs.
Sebastian,[23] in which an alien resident who owned
properties in the Philippines devised to an American
non-stock corporation part of his shares of stock in a
Filipino corporation that owned a tract of land in Davao
del Norte, the Court sustained the invalidity of such
legacy. However, upon proof that ownership of the
American corporation has passed on to a 100 percent
Filipino corporation, the Court ruled that the defect in the
will was rectified by the subsequent transfer of the
property.
The present case is similar to De Castro vs. Tan.[24] In
that case, a residential lot was sold to a Chinese. Upon
his death, his widow and children executed an
extrajudicial settlement, whereby said lot was allotted to
one of his sons who became a naturalized Filipino. The
Court did not allow the original vendor to have the sale
annulled and to recover the property, for the reason that
the land has since become the property of a naturalized
Filipino citizen who is constitutionally qualified to own
land.
Likewise, in the cases of Sarsosa vs.
Cuenco,[25] Godinez vs. Pak Luen,[26] Vasquez vs. Li
Seng Giap[27] and Herrera vs. Luy Kim Guan,[28] which
similarly involved the sale of land to an alien who
thereafter sold the same to a Filipino citizen, the Court
again applied the rule that the subsequent sale can no
longer be impugned on the basis of the invalidity of the
initial transfer.
The rationale of this principle was explained
in Vasquez vs. Li Seng Giap thus:
x x x [I]f the ban on aliens from acquiring not only
agricultural but also urban lands, as construed by this
Court in the Krivenko case, is to preserve the nations
lands for future generations of Filipinos, that aim or
purpose would not be thwarted but achieved by making
lawful the acquisition of real estate by aliens who
became Filipino citizens by naturalization.[29]
Accordingly, since the disputed land is now owned by
Private Respondent Cataniag, a Filipino citizen, the prior
invalid transfer can no longer be assailed. The objective
of the constitutional provision -- to keep our land in
Filipino hands -- has been served.
WHEREFORE, the petition is hereby DENIED. The
challenged Decision is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Davide, Jr. (Chairman), Bellosillo,
Vitug and Quisumbing, JJ., concur.

[1]
Rollo, pp. 19-30.
[2]
Ninth Division, composed of JJ. Cezar D.
Francisco, ponente; Gloria C. Paras (chairman) and
Buenaventura J. Guerrero, concurring.
[3]
Assailed Decision, p. 12; Rollo, p. 30.
[4]
Assailed Decision, p. 2; Rollo, p. 20.
[5]
ART. 1621. The owners of adjoining lands shall also
have the right of redemption when a piece of rural land,
the area of which does not exceed one hectare, is
alienated, unless the grantee does not own any rural
land.
This right is not applicable to adjacent lands which are
separated by brooks, drains, ravines, roads and other
apparent servitudes for the benefit of other estates.
If two or more adjoining owners desire to exercise the
right of redemption at the same time, the owner of the
adjoining land of smaller area shall be preferred; and
should both lands have the same area, the one who first
requested the redemption.
[6]
CA Rollo, pp. 29-31.
[7]
Penned by Judge Valentin R. Cruz.
[8]
138 SCRA 78, August 7, 1985.
[9]
121 SCRA 244, March 28, 1983.
[10]
This case was considered submitted for resolution
upon receipt by this Court of petitioners memorandum
on November 8, 1996.
[11]
Petition, p. 6; Rollo, p. 12.
[12]
First Philippine International Bank vs. Court of
Appeals, 252 SCRA 259, January 24, 1996.
[13]
Fuentes vs. Court of Appeals, 268 SCRA 703,
February 26, 1997; Geronimo vs. Court of Appeals, 224
SCRA 494, July 5, 1993. See also Lacanilao vs. Court of
Appeals, 262 SCRA 486, September 26, 1996;
Verendia vs. Court of Appeals, 217 SCRA 417, January
22, 1993.
[14]
RTC decision, p. 3; CA Rollo, p. 31.
[15]
Tolentino, Ibid.; Cortes vs. Flores, 47 Phil 992,
September 6, 1924.
[16]
Tolentino, Civil Code of the Philippines, 1992 ed.,
Vol. V, p. 182; Del Pilar vs. Catindig, 35 Phil 263,
November 4, 1916.
[17]
79 Phil 461, November 15, 1947, per Moran, CJ.
[18]
Ibid., pp. 473-474.
[19]
239 SCRA 341, December 20, 1994, per Quiason, J.
[20]
At p. 346.
[21]
Cf. Ramirez vs. Vda. de Ramirez, 111 SCRA 704,
February 15, 1982.
[22]
United Church Board of World
Ministries vs. Sebastian, 159 SCRA 446, 451-452,
March 30, 1988; per Cruz, J. See also
Tejido vs. Zamacoma, 138 SCRA 78, August 7, 1985;
Sarsosa vda. de Barsobia vs.Cuenco, 113 SCRA 547,
April 16, 1982; Godinez vs. Fong Pak Luen, 120 SCRA
223, January 27, 1983; Yap vs. Maravillas, 121 SCRA
244, March 28, 1983; De Castro vs. Tan, 129 SCRA 85,
April 30, 1984.
[23]
Ibid.
[24]
Supra.
[25]
Supra.
[26]
Supra.
[27]
96 Phil 447, January 31, 1955, per Padilla, J.
[28]
1 SCRA 406, January 31, 1961, per Barrera, J.
[29]
Supra, p. 453.
EN BANC

[G.R. No. 127255. August 14, 1997]

JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN

HENRY R. OSMEA, WIGBERTO E. TAADA, and
RONALDO B. ZAMORA, petitioners, vs. JOSE DE
VENECIA, RAUL DAZA, RODOLFO ALBANO,
THE EXECUTIVE SECRETARY, THE SECRETARY
OF FINANCE, AND THE COMMISSIONER OF
INTERNAL REVENUE, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and/or prohibition
challenging the validity of Republic Act No. 8240, which
amends certain provisions of the National Internal
Revenue Code by imposing so-called sin taxes (actually
specific taxes) on the manufacture and sale of beer and
cigarettes.
Petitioners are members of the House of
Representatives. They brought this suit against
respondents Jose de Venecia, Speaker of the House of
Representatives, Deputy Speaker Raul Daza, Majority
Leader Rodolfo Albano, the Executive Secretary, the
Secretary of Finance, and the Commissioner of Internal
Revenue, charging violation of the rules of the House
which petitioners claim are constitutionally mandated so
that their violation is tantamount to a violation of the
Constitution.
The law originated in the House of Representatives as
H. No. 7198. This bill was approved on third reading on
September 12, 1996 and transmitted on September 16,
1996 to the Senate which approved it with certain
amendments on third reading on November 17, 1996. A
bicameral conference committee was formed to
reconcile the disagreeing provisions of the House and
Senate versions of the bill.
The bicameral conference committee submitted its
report to the House at 8 a.m. on November 21, 1996. At
11:48 a.m., after a recess, Rep. Exequiel Javier,
chairman of the Committee on Ways and Means,
proceeded to deliver his sponsorship speech, after which
he was interpellated. Rep. Rogelio Sarmiento was first to
interpellate. He was interrupted when Rep. Arroyo
moved to adjourn for lack of quorum. Rep. Antonio
Cuenco objected to the motion and asked for a head
count. After a roll call, the Chair (Deputy Speaker Raul
Daza) declared the presence of a quorum.[1] Rep. Arroyo
appealed the ruling of the Chair, but his motion was
defeated when put to a vote. The interpellation of the
sponsor thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to
interpellate. He was fourth in the order, following Rep.
Rogelio Sarmiento, Rep. Edcel C. Lagman and Rep.
Enrique Garcia. In the course of his interpellation, Rep.
Arroyo announced that he was going to raise a question
on the quorum, although until the end of his interpellation
he never did. What happened thereafter is shown in the
following transcript of the session on November 21, 1996
of the House of Representatives, as published by
Congress in the newspaper issues of December 5 and 6,
1996:
MR. ALBANO. Mr. Speaker, I move that we now
approve and ratify the conference committee
report.
THE DEPUTY SPEAKER (Mr. Daza). Any objection
to the motion?
MR. ARROYO. What is that, Mr. Speaker?
 THE DEPUTY SPEAKER (Mr. Daza). There being
none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute, Mr.
Speaker, I stood up. I want to know what is the
question that the Chair asked the distinguished
sponsor.
THE DEPUTY SPEAKER (Mr. Daza). There was a
motion by the Majority Leader for approval of the
report, and the Chair called for the motion.
MR. ARROYO. Objection, I stood up, so I wanted to
object.
THE DEPUTY SPEAKER (Mr. Daza). The session
is suspended for one minute.
(It was 3:01 p.m.)
(3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The session
is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn until
four oclock, Wednesday, next week.
THE DEPUTY SPEAKER (Mr. Daza). The session
is adjourned until four oclock, Wednesday, next
week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker
of the House of Representatives and the President of the
Senate and certified by the respective secretaries of
both Houses of Congress as having been finally passed
by the House of Representatives and by the Senate on
November 21, 1996. The enrolled bill was signed into
law by President Fidel V. Ramos on November 22, 1996.
Petitioners claim that there are actually four different
versions of the transcript of this portion of Rep. Arroyos
interpellation: (1) the transcript of audio-sound recording
of the proceedings in the session hall immediately after
the session adjourned at 3:40 p.m. on November 21,
1996, which petitioner Rep. Edcel C. Lagman obtained
from the operators of the sound system; (2) the
transcript of the proceedings from 3:00 p.m. to 3:40 p.m.
of November 21, 1996, as certified by the Chief of the
Transcription Division on November 21, 1996, also
obtained by Rep. Lagman; (3) the transcript of the
proceedings from 3:00 p.m. to 3:40 p.m. of November
21, 1996 as certified by the Chief of the Transcription
Division on November 28, 1996, also obtained by Rep.
Lagman; and (4) the published version
abovequoted. According to petitioners, the four versions
differ on three points, to wit: (1) in the audio-sound
recording the word approved, which appears on line 13
in the three other versions, cannot be heard; (2) in the
transcript certified on November 21, 1996 the word no
on line 17 appears only once, while in the other versions
it is repeated three times; and (3) the published version
does not contain the sentence (Y)ou better prepare for a
quorum because I will raise the question of the quorum,
which appears in the other versions.
Petitioners allegations are vehemently denied by
respondents. However, there is no need to discuss this
point as petitioners have announced that, in order to
expedite the resolution of this petition, they admit,
without conceding, the correctness of the transcripts
relied upon by the respondents. Petitioners agree that
for purposes of this proceeding the word approved
appears in the transcripts.
Only the proceedings of the House of Representatives
on the conference committee report on H. No. 7198 are
in question. Petitioners principal argument is that R.A.
No.8240 is null and void because it was passed in
violation of the rules of the House; that these rules
embody the constitutional mandate in Art. VI, 16(3) that
each House may determine the rules of its proceedings
and that, consequently, violation of the House rules is a
violation of the Constitution itself. They contend that the
certification of Speaker De Venecia that the law was
properly passed is false and spurious.
More specifically, petitioners charge that (1) in
violation of Rule VIII, 35 and Rule XVII, 103 of the rules
of the House,[2] the Chair, in submitting the conference
committee report to the House, did not call for
the yeas or nays, but simply asked for its approval by
motion in order to prevent petitioner Arroyo from
questioning the presence of a quorum; (2) in violation of
Rule XIX, 112,[3] the Chair deliberately ignored Rep.
Arroyos question, What is that . . . Mr. Speaker? and did
not repeat Rep. Albanos motion to approve or ratify; (3)
in violation of Rule XVI, 97,[4] the Chair refused to
recognize Rep. Arroyo and instead proceeded to act on
Rep. Albanos motion and afterward declared the report
approved; and (4) in violation of Rule XX, 121-122, Rule
XXI, 123, and Rule XVIII, 109,[5]the Chair suspended the
session without first ruling on Rep. Arroyos question
which, it is alleged, is a point of order or a privileged
motion. It is argued that Rep. Arroyos query should have
been resolved upon the resumption of the session on
November 28, 1996, because the parliamentary situation
at the time of the adjournment remained upon the
resumption of the session.
Petitioners also charge that the session was hastily
adjourned at 3:40 p.m. on November 21, 1996 and the
bill certified by Speaker Jose De Venecia to prevent
petitioner Rep. Arroyo from formally challenging the
existence of a quorum and asking for a reconsideration.
Petitioners urge the Court not to feel bound by the
certification of the Speaker of the House that the law had
been properly passed, considering the Courts power
under Art. VIII, 1 to pass on claims of grave abuse of
discretion by the other departments of the government,
and they ask for a reexamination of Tolentino v.
Secretary of Finance,[6]which affirmed the
conclusiveness of an enrolled bill, in view of the changed
membership of the Court.
The Solicitor General filed a comment in behalf of all
respondents. In addition, respondent De Venecia filed a
supplemental comment. Respondents defense is
anchored on the principle of separation of powers and
the enrolled bill doctrine. They argue that the Court is not
the proper forum for the enforcement of the rules of the
House and that there is no justification for reconsidering
the enrolled bill doctrine. Although the Constitution
provides in Art. VI, 16(3) for the adoption by each House
of its rules of proceedings, enforcement of the rules
cannot be sought in the courts except insofar as they
implement constitutional requirements such as that
relating to three readings on separate days before a bill
may be passed. At all events, respondents contend that,
in passing the bill which became R.A. No. 8240, the
rules of the House, as well as parliamentary precedents
for approval of conference committee reports on mere
motion, were faithfully observed.
In his supplemental comment, respondent De Venecia
denies that his certification of H. No. 7198 is false and
spurious and contends that under the journal entry rule,
the judicial inquiry sought by the petitioners is barred.
Indeed, Journal No. 39 of the House of Representatives,
covering the sessions of November 20 and 21, 1996,
shows that On Motion of Mr. Albano, there being no
objection, the Body approved the Conference Committee
Report on House Bill No. 7198.[7] This Journal was
approved on December 2, 1996 over the lone objection
of petitioner Rep. Lagman.[8]
 After considering the arguments of the parties, the
Court finds no ground for holding that Congress
committed a grave abuse of discretion in enacting R.A.
No. 8240. This case is therefore dismissed.
First. It is clear from the foregoing facts that what is
alleged to have been violated in the enactment of R.A.
No. 8240 are merely internal rules of procedure of the
House rather than constitutional requirements for the
enactment of a law, i.e., Art. VI, 26-27.Petitioners do not
claim that there was no quorum but only that, by some
maneuver allegedly in violation of the rules of the House,
Rep. Arroyo was effectively prevented from questioning
the presence of a quorum.
Petitioners contend that the House rules were
adopted pursuant to the constitutional provision that
each House may determine the rules of its
proceedings[9] and that for this reason they are judicially
enforceable. To begin with, this contention stands the
principle on its head. In the decided cases,[10] the
constitutional provision that each House may determine
the rules of its proceedings was invoked by parties,
although not successfully, precisely to support claims of
autonomy of the legislative branch to conduct its
business free from interference by courts. Here
petitioners cite the provision for the opposite purpose of
invoking judicial review.
But the cases, both here and abroad, in varying forms
of expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the rights of private
individuals. In Osmea v. Pendatun,[11] it was held: At any
rate, courts have declared that the rules adopted by
deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them. And it has been said that Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body. Consequently, mere
failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.
In United States v. Ballin, Joseph & Co.,[12] the rule
was stated thus: The Constitution empowers each house
to determine its rules of proceedings. It may not by its
rules ignore constitutional restraints or violate
fundamental rights, and there should be a reasonable
relation between the mode or method of proceeding
established by the rule and the result which is sought to
be attained. But within these limitations all matters of
method are open to the determination of the House, and
it is no impeachment of the rule to say that some other
way would be better, more accurate, or even more
just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a
length of time.The power to make rules is not one which
once exercised is exhausted. It is a continuous power,
always subject to be exercised by the House, and within
the limitations suggested, absolute and beyond the
challenge of any other body or tribunal.
In Crawford v. Gilchrist,[13] it was held: The provision
that each House shall determine the rules of its
proceedings does not restrict the power given to a mere
formulation of standing rules, or to the proceedings of
the body in ordinary legislative matters; but in the
absence of constitutional restraints, and when exercised
by a majority of a constitutional quorum, such authority
extends to a determination of the propriety and effect of
any action as it is taken by the body as it proceeds in the
exercise of any power, in the transaction of any
business, or in the performance of any duty conferred
upon it by the Constitution.
In State ex rel. City Loan & Savings Co. v.
Moore,[14] the Supreme Court of Ohio stated: The
provision for reconsideration is no part of the
Constitution and is therefore entirely within the control of
the General Assembly. Having made the rule, it should
be regarded, but a failure to regard it is not the subject-
matter of judicial inquiry. It has been decided by the
courts of last resort of many states, and also by the
United States Supreme Court, that a legislative act will
not be declared invalid for noncompliance with rules.
In State v. Savings Bank,[15] the Supreme Court of
Errors of Connecticut declared itself as follows: The
Constitution declares that each house shall determine
the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a
free and independent state. Rules of proceedings are
the servants of the House and subject to its
authority. This authority may be abused, but when the
House has acted in a matter clearly within its power, it
would be an unwarranted invasion of the independence
of the legislative department for the court to set aside
such action as void because it may think that the House
has misconstrued or departed from its own rules of
procedure.
In McDonald v. State,[16] the Wisconsin Supreme
Court held: When it appears that an act was so passed,
no inquiry will be permitted to ascertain whether the two
houses have or have not complied strictly with their own
rules in their procedure upon the bill, intermediate its
introduction and final passage. The presumption is
conclusive that they have done so. We think no court
has ever declared an act of the legislature void for non-
compliance with the rules of procedure made by itself, or
the respective branches thereof, and which it or they
may change or suspend at will. If there are any such
adjudications, we decline to follow them.
Schweizer v. Territory[17] is illustrative of the rule in
these cases. The 1893 Statutes of Oklahoma provided
for three readings on separate days before a bill may be
passed by each house of the legislature, with the proviso
that in case of an emergency the house concerned may,
by two-thirds vote, suspend the operation of the
rule. Plaintiff was convicted in the district court of
violation of a law punishing gambling. He appealed
contending that the gambling statute was not properly
passed by the legislature because the suspension of the
rule on three readings had not been approved by the
requisite two-thirds vote. Dismissing this contention, the
State Supreme Court of Oklahoma held:
We have no constitutional provision requiring that the
legislature should read a bill in any particular manner. It may,
then, read or deliberate upon a bill as it sees fit, either in
accordance with its own rules, or in violation thereof, or
without making any rules. The provision of section 17 referred
to is merely a statutory provision for the direction of the
legislature in its action upon proposed measures. It receives its
entire force from legislative sanction, and it exists only at
legislative pleasure. The failure of the legislature to properly
weigh and consider an act, its passage through the legislature
in a hasty manner, might be reasons for the governor
withholding his signature thereto; but this alone, even though
it is shown to be a violation of a rule which the legislature had
made to govern its own proceedings, could be no reason for
the courts refusing its enforcement after it was actually passed
by a majority of each branch of the legislature, and duly
signed by the governor. The courts cannot declare an act of the
legislature void on account of noncompliance with rules of
procedure made by itself to govern its
deliberations. McDonald v. State, 80 Wis. 407, 50 N.W. 185;
In re Ryan, 80 Wis. 414, 50 N. W. 187; State v. Brown, 33
S.C. 151, 11 S. E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S.
W. 18.
We conclude this survey with the useful summary of
the rulings by former Chief Justice Fernando,
commenting on the power of each House of Congress to
determine its rules of proceedings. He wrote:
Rules are hardly permanent in character. The prevailing view
is that they are subject to revocation, modification or waiver at
the pleasure of the body adopting them as they are primarily
procedural.Courts ordinarily have no concern with their
observance. They may be waived or disregarded by the
legislative body. Consequently, mere failure to conform to
them does not have the effect of nullifying the act taken if the
requisite number of members have agreed to a particular
measure.The above principle is subject, however, to this
qualification. Where the construction to be given to a rule
affects persons other than members of the legislative body the
question presented is necessarily judicial in character. Even its
validity is open to question in a case where private rights are
involved.[18]
In this case no rights of private individuals are
involved but only those of a member who, instead of
seeking redress in the House, chose to transfer the
dispute to this Court.We have no more power to look into
the internal proceedings of a House than members of
that House have to look over our shoulders, as long as
no violation of constitutional provisions is shown.
Petitioners must realize that each of the three
departments of our government has its separate sphere
which the others may not invade without upsetting the
delicate balance on which our constitutional order rests.
Due regard for the working of our system of government,
more than mere comity, compels reluctance on our part
to enter upon an inquiry into an alleged violation of the
rules of the House. We must accordingly decline the
invitation to exercise our power.
Second. Petitioners, quoting former Chief Justice
Roberto Concepcions sponsorship in the Constitutional
Commission, contend that under Art. VIII, 1, nothing
involving abuse of discretion [by the other branches of
the government] amounting to lack or excess of
jurisdiction is beyond judicial review.[19] Implicit in this
statement of the former Chief Justice, however, is an
acknowledgment that the jurisdiction of this Court is
subject to the case and controversy requirement of Art.
VIII, 5 and, therefore, to the requirement of a justiciable
controversy before courts can adjudicate constitutional
questions such as those which arise in the field of
foreign relations. For while Art. VIII, 1 has broadened the
scope of judicial inquiry into areas normally left to the
political departments to decide, such as those relating to
national security,[20] it has not altogether done away with
political questions such as those which arise in the field
of foreign relations. As we have already held, under Art.
VIII, 1, this Courts function
is merely [to] check whether or not the governmental branch
or agency has gone beyond the constitutional limits of its
jurisdiction, not that it erred or has a different view. In the
absence of a showing . . . [of] grave abuse of discretion
amounting to lack of jurisdiction, there is no occasion for the
Court to exercise its corrective power. . . . It has no power to
look into what it thinks is apparent error.[21]
If, then, the established rule is that courts cannot declare
an act of the legislature void on account merely of
noncompliance with rules of procedure made by itself, it
follows that such a case does not present a situation in
which a branch of the government has gone beyond the
constitutional limits of its jurisdiction so as to call for the
exercise of our Art.VIII, 1 power.
 Third. Petitioners claim that the passage of the law in
the House was railroaded.They claim that Rep. Arroyo
was still making a query to the Chair when the latter
declared Rep. Albanos motion approved.
What happened is that, after Rep. Arroyos
interpellation of the sponsor of the committee report,
Majority Leader Rodolfo Albano moved for the approval
and ratification of the conference committee report. The
Chair called out for objections to the motion.Then the
Chair declared: There being none, approved. At the
same time the Chair was saying this, however, Rep.
Arroyo was asking, What is that . . . Mr. Speaker? The
Chair and Rep. Arroyo were talking simultaneously.
Thus, although Rep. Arroyo subsequently objected to
the Majority Leaders motion, the approval of the
conference committee report had by then already been
declared by the Chair, symbolized by its banging of the
gavel.
Petitioners argue that, in accordance with the rules of
the House, Rep. Albanos motion for the approval of the
conference committee report should have been stated
by the Chair and later the individual votes of the
Members should have been taken. They say that the
method used in this case is a legislators nightmare
because it suggests unanimity when the fact was that
one or some legislators opposed the report.
No rule of the House of Representatives has been
cited which specifically requires that in cases such as
this involving approval of a conference committee report,
the Chair must restate the motion and conduct a viva
voce or nominal voting. On the other hand, as the
Solicitor General has pointed out, the manner in which
the conference committee report on H. No. 7198 was
approved was by no means a unique one. It has basis in
legislative practice. It was the way the conference
committee report on the bills which became the Local
Government Code of 1991 and the conference
committee report on the bills amending the Tariff and
Customs Code were approved.
In 1957, the practice was questioned as being
contrary to the rules of the House. The point was
answered by Majority Leader Arturo M. Tolentino and his
answer became the ruling of the Chair. Mr. Tolentino
said:
Mr. Tolentino. The fact that nobody objects means a
unanimous action of the House. Insofar as the matter of
procedure is concerned, this has been a precedent since I came
here seven years ago, and it has been the procedure in this
House that if somebody objects, then a debate follows and
after the debate, then the voting comes in.
....
Mr. Speaker, a point of order was raised by the gentleman
from Leyte, and I wonder what his attitude is now on his point
of order. I should just like to state that I believe that we have
had a substantial compliance with the Rules. The Rule
invoked is not one that refers to statutory or constitutional
requirement, and a substantial compliance, to my mind, is
sufficient. When the Chair announces the vote by saying Is
there any objection? and nobody objects, then the Chair
announces The bill is approved on second reading. If there
was any doubt as to the vote, any motion to divide would have
been proper. So, if that motion is not presented, we assume
that the House approves the measure. So I believe there is
substantial compliance here, and if anybody wants a division
of the House he can always ask for it, and the Chair can
announce how many are in favor and how many are against.[22]
Indeed, it is no impeachment of the method to say that
some other way would be better, more accurate and
even more just.[23] The advantages or disadvantages,
the wisdom or folly of a method do not present any
matter for judicial consideration.[24] In the words of the
U.S. Circuit Court of Appeals, this Court cannot provide
a second opinion on what is the best procedure.
Notwithstanding the deference and esteem that is
properly tendered to individual congressional actors, our
deference and esteem for the institution as a whole and
for the constitutional command that the institution be
allowed to manage its own affairs precludes us from
even attempting a diagnosis of the problem.[25]
Nor does the Constitution require that the yeas and
the nays of the Members betaken every time a House
has to vote, except only in the following instances: upon
the last and third readings of a bill,[26] at the request of
one-fifth of the Members present,[27]and in repassing a
bill over the veto of the President.[28] Indeed, considering
the fact that in the approval of the original bill the votes
of the Members by yeas and nays had already been
taken, it would have been sheer tedium to repeat the
process.
Petitioners claim that they were prevented from
seeking reconsideration allegedly as a result of the
precipitate suspension and subsequent adjournment of
the session.[29] It would appear, however, that the
session was suspended to allow the parties to settle the
problem, because when it resumed at 3:40 p.m. on that
day Rep. Arroyo did not say anything anymore. While it
is true that the Majority Leader moved for adjournment
until 4 p.m. of Wednesday of the following week, Rep.
Arroyo could at least have objected if there was anything
he wanted to say. The fact, however, is that he did
not. The Journal of November 21, 1996 of the House
shows:
ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no objection, the Chair
declared the session adjourned until four oclock in the
afternoon of Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21, 1996. (emphasis
added)
This Journal was approved on December 2,
1996. Again, no one objected to its approval except Rep.
Lagman.
It is thus apparent that petitioners predicament was
largely of their own making. Instead of submitting the
proper motions for the House to act upon, petitioners
insisted on the pendency of Rep. Arroyos question as an
obstacle to the passage of the bill. But Rep. Arroyos
question was not, in form or substance, a point of order
or a question of privilege entitled to precedence.[30] And
even if Rep. Arroyos question were so, Rep. Albanos
motion to adjourn would have precedence and would
have put an end to any further consideration of the
question.[31]
Given this fact, it is difficult to see how it can plausibly
be contended that in signing the bill which became R.A.
No. 8240, respondent Speaker of the House be acted
with grave abuse of his discretion. Indeed, the phrase
grave abuse of discretion amounting to lack or excess of
jurisdiction has a settled meaning in the jurisprudence of
procedure. It means such capricious and whimsical
exercise of judgment by a tribunal exercising judicial or
quasi judicial power as to amount to lack of power. As
Chief Justice Concepcion himself said in explaining this
provision, the power granted to the courts by Art. VIII, 1
extends to cases where a branch of the government or
any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of
jurisdiction.[32]
 Here, the matter complained of concerns a matter of
internal procedure of the House with which the Court
should not be concerned. To repeat, the claim is not that
there was no quorum but only that Rep. Arroyo was
effectively prevented from questioning the presence of a
quorum. Rep. Arroyos earlier motion to adjourn for lack
of quorum had already been defeated, as the roll call
established the existence of a quorum. The question of
quorum cannot be raised repeatedly especially when the
quorum is obviously present for the purpose of delaying
the business of the House.[33] Rep. Arroyo waived his
objection by his continued interpellation of the sponsor
for in so doing he in effect acknowledged the presence
of a quorum.[34]
At any rate it is noteworthy that of the 111 members of
the House earlier found to be present on November 21,
1996, only the five, i.e., petitioners in this case, are
questioning the manner by which the conference
committee report on H. No. 7198 was approved on that
day. No one, except Rep. Arroyo, appears to have
objected to the manner by which the report was
approved. Rep. John Henry Osmea did not participate in
the bicameral conference committee
proceedings.[35] Rep. Lagman and Rep. Zamora
objected to the report[36] but not to the manner it was
approved; while it is said that, if voting had been
conducted, Rep. Taada would have voted in favor of the
conference committee report.[37]
Fourth. Under the enrolled bill doctrine, the signing of
H. No. 7198 by the Speaker of the House and the
President of the Senate and the certification by the
secretaries of both Houses of Congress that it was
passed on November 21, 1996 are conclusive of its due
enactment. Much energy and learning is devoted in the
separate opinion of Justice Puno, joined by Justice
Davide, to disputing this doctrine. To be sure, there is no
claim either here or in the decision in the EVAT cases
[Tolentino v. Secretary of Finance] that the enrolled bill
embodies a conclusive presumption. In one case[38] we
went behind an enrolled bill and consulted the Journal to
determine whether certain provisions of a statute had
been approved by the Senate.
But, where as here there is no evidence to the
contrary, this Court will respect the certification of the
presiding officers of both Houses that a bill has been
duly passed.Under this rule, this Court has refused to
determine claims that the three-fourths vote needed to
pass a proposed amendment to the Constitution had not
been obtained,because a duly authenticated bill or
resolution imports absolute verity and is binding on the
courts.[39] This Court quoted from Wigmore on
Evidence the following excerpt which embodies good, if
old-fashioned, democratic theory:
The truth is that many have been carried away with the
righteous desire to check at any cost the misdoings of
Legislatures. They have set such store by the Judiciary for this
purpose that they have almost made them a second and higher
Legislature. But they aim in the wrong direction. Instead of
trusting a faithful Judiciary to check an inefficient Legislature,
they should turn to improve the Legislature. The sensible
solution is not to patch and mend casual errors by asking the
Judiciary to violate legal principle and to do impossibilities
with the Constitution; but to represent ourselves with
competent, careful, and honest legislators, the work of whose
hands on the statute-roll may come to reflect credit upon the
name of popular government.[40]
This Court has refused to even look into allegations
that the enrolled bill sent to the President contained
provisions which had been surreptitiously inserted in the
conference committee:
[W]here allegations that the constitutional procedures for the
passage of bills have not been observed have no more basis
than another allegation that the Conference Committee
surreptitiously inserted provisions into a bill which it had
prepared, we should decline the invitation to go behind the
enrolled copy of the bill. To disregard the enrolled bill rule in
such cases would be to disregard the respect due the other two
departments of our government.[41]
It has refused to look into charges that an amendment
was made upon the last reading of a bill in violation of
Art. VI, 26(2) of the Constitution that upon the last
reading of a bill, no amendment shall be allowed. [42]
In other cases,[43] this Court has denied claims that the
tenor of a bill was otherwise than as certified by the
presiding officers of both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is well
established. It is cited with approval by text writers here
and abroad.[44] The enrolled bill rule rests on the
following considerations:
. . . As the President has no authority to approve a bill not
passed by Congress, an enrolled Act in the custody of the
Secretary of State, and having the official attestations of the
Speaker of the House of Representatives, of the President of
the Senate, and of the President of the United States, carries,
on its face, a solemn assurance by the legislative and executive
departments of the government, charged, respectively, with
the duty of enacting and executing the laws, that it was passed
by Congress. The respect due to coequal and independent
departments requires the judicial department to act upon that
assurance, and to accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the court to
determine, when the question properly arises, whether the Act,
so authenticated, is in conformity with the Constitution.[45]
 To overrule the doctrine now, as the dissent urges, is
to repudiate the massive teaching of our cases and
overthrow an established rule of evidence.
Indeed, petitioners have advanced no argument to
warrant a departure from the rule, except to say that,
with a change in the membership of the Court, the three
new members may be assumed to have an open mind
on the question of the enrolled bill rule.Actually, not three
but four (Cruz, Feliciano, Bidin, and Quiason, JJ.) have
departed from the Court since our decision in the EVAT
cases and their places have since been taken by four
new members (Francisco, Hermosisima, Panganiban,
and Torres, JJ.) Petitioners are thus simply banking on
the change in the membership of the Court.
Moreover, as already noted, the due enactment of the
law in question is confirmed by the Journal of the House
of November 21, 1996 which shows that the conference
committee report on H. No. 7198, which became R.A.
No. 8240, was approved on that day. The keeping of the
Journal is required by the Constitution. Art. VI, 16(4)
provides:
Each House shall keep a Journal of its proceedings, and from
time to time publish the same, excepting such parts as may, in
its judgment, affect national security; and the yeas and nays on
any question shall, at the request of one-fifth of the Members
present, be entered in the Journal.
Each House shall also keep a Record of its proceedings.
The Journal is regarded as conclusive with respect to
matters that are required by the Constitution to be
recorded therein.[46] With respect to other matters, in the
absence of evidence to the contrary, the Journals have
also been accorded conclusive effect. Thus, in United
States v. Pons,[47] this Court spoke of the imperatives of
public policy for regarding the Journals as public
memorials of the most permanent character, thus: They
should be public, because all are required to conform to
them; they should be permanent, that rights acquired
today upon the faith of what has been declared to be law
shall not be destroyed tomorrow, or at some remote
period of time, by facts resting only in the memory of
individuals. As already noted, the bill which became R.A.
No. 8240 is shown in the Journal. Hence its due
enactment has been duly proven.
___________________
It would be an unwarranted invasion of the prerogative
of a coequal department for this Court either to set aside
a legislative action as void because the Court thinks the
House has disregarded its own rules of procedure, or to
allow those defeated in the political arena to seek a
rematch in the judicial forum when petitioners can find
their remedy in that department itself. The Court has not
been invested with a roving commission to inquire into
complaints, real or imagined, of legislative
skullduggery. It would be acting in excess of its power
and would itself be guilty of grave abuse of its discretion
were it to do so. The suggestion made in a case[48] may
instead appropriately be made here: petitioners can seek
the enactment of a new law or the repeal or amendment
of R.A. No. 8240. In the absence of anything to the
contrary, the Court must assume that Congress or any
House thereof acted in the good faith belief that its
conduct was permitted by its rules, and deference rather
than disrespect is due the judgment of that body.[49]
WHEREFORE, the petition for certiorari and
prohibition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Padilla, Melo, Kapunan,
Francisco, and Hermosisima, Jr., JJ., concur.
Romero, J., has a separate opinion.
Puno, J., has a separate concurring and dissenting
opinion.
 Davide, Jr., J., joined the concurring and dissenting
opinion of Justice Puno.
Vitug, J., has a separate concurring opinion.
Regalado, J., in the result.
Bellosillo, J., took no part due to relationship with
parties.
Panganiban, J., took no part. Former counsel of a
party.
Torres, Jr., J., on leave during the deliberations.

[1]
Journal No. 39, pp. 66, 68; Rollo, pp. 210, 212;
Transcript of November 21, 1996 session, pp. 39-
52;Rollo, pp. 368-381; Petition, p. 6, par. 10; Rollo,
p. 8.
[2]
Rule VIII, 35. Voting. Every member present in the
session shall vote on every question put unless he
inhibits himself on account of personal pecuniary interest
therein.
Rule XVII, 103. Manner of Voting. The Speaker shall rise
to put a question saying As many as are in favor of
(as the question may be), say Aye and, after the
affirmative vote is counted, As many as are
opposed, say Nay ....
[3]
Rule XIX, 112. Reading and Withdrawal of
Motions. The Speaker shall state the motion or, if in
writing, shall cause it to be read by the Secretary
General before being debated. A motion may be
withdrawn any time before its approval.
[4]
Rule XVI, 97. Recognition of Member. When two or
more members rise at the same time, the Speaker
shall recognize the Member who is to speak first.
[5]
Rule XX, 121. Definition. Questions of privilege are
those affecting the duties, conduct, rights, privileges,
dignity, integrity or reputation of the House or of its
members, collectively or individually.
122. Precedence. Subject to the ten-minute rule,
questions of privilege shall have precedence over all
other questions, except a motion to adjourn and a
point of order.
Rule XXI, 123. Definition and Precedence. A privileged
motion pertains to a subject matter which, under the
rules, takes precedence over others.
The order of precedence of privileged motions is
determined in each case by the rules.
Rule XVIII, 109. Who May Vote; Procedure;
Exceptions. When a bill, report or motion is adopted
or lost, a member who voted with the majority may
move for its reconsideration on the same or
succeeding session day. The motion shall take
precedence over all other questions, except a
motion to adjourn, a question of privilege, and a
point of order.
[6]
235 SCRA 630 (1994).
[7]
Rollo, p. 228.
[8]
Id., p. 229.
[9]
Art. VI, 16(3).
[10]
E.g., United States v. Ballin, Joseph & Co., 144 U.S.
1, 36 L.Ed. 321 (1862); Exxon Corp. v. FTC, 589
F.2d 582 (1978); Murray v. Buchanan, 674 F.2d 14
(1982); Metzenbaum v. Federal Energy Regulatory
Comn, 675 F.2d 1282 (1982). See also Osmea v.
Pendatun, 109 Phil. 863 (1960).
[11]
109 Phil. at 870-71. See also EVAT cases
[Tolentino v. Secretary of Finance], 235 SCRA 630.
[12]
144 U.S. at 5, 36 L.Ed. at 324-25 (emphasis added).
[13]
64 Fla. 41; 59 So. 963, 968 (1912) (emphasis added).
[14]
124 Ohio St. 256, 177 N.E. 910, 911 (1931)
(emphasis added).
[15]
79 Conn. 141, 64 Atl. 5, 9-10 (1906) (emphasis
added).
[16]
80 Wis. 407, 50 N.W. 185, 186 (1891) (emphasis
added).
[17]
5 Okl. 297, 47 Pac. 1094 (1897) (emphasis added).
[18]
Enrique M. Fernando, Constitution of the Philippines
Annotated 188-189 (1977); Pacete v. Secretary
ofthe Commission on Appointments, 40 SCRA 58
(1971).
[19]
Petition, p. 25, quoting the sponsorship speech of
former Chief Justice Roberto Concepcion, chairman
of the Committee on Judiciary of the Constitutional
Commission, in 1 Records of the Constitutional
Commission 436 (Session of July 10, 1986).
[20]
Gonzales v. Macaraig, 191 SCRA 452
(1990); See Marcos v. Manglapus, 177 SCRA 668,
695 (1989); Lansang v. Garcia, 42 SCRA 448
(1971).
[21]
Co v. Electoral Tribunal of the House of
Representatives, 199 SCRA 692,701 (1991);
Llamas v. Orbos, 202 SCRA 849, 857 (1991);
Lansang v. Garcia, 42 SCRA at 480-481 (emphasis
added).
[22]
4 Cong. Rec. 413-414 (Feb. 15, 1957).
[23]
United States v. Ballin, Joseph & Co., 144 U.S. at 5,
36 L.Ed. at 324-25; State v. Lewis, 186 S.E. 625,
630 (1936).
[24]
United States v. Smith, 286 U.S. 6, 76 L.Ed. 954
(1931).
[25]
Gregg v. Barrett, 771 F.2d 539, 549 (1985).
[26]
Art. VI, 26(2).
[27]
Id., 16(4).
[28]
Id., 27(1).
[29]
Id., p. 17; id., p. 19.
[30]
Inocencio Pareja, Rules of the House of
Representatives Commented and Annotated 331
(1963); Reynaldo Fajardo, Principles of
Parliamentary Procedure 157-158, 172-173 (1963).
[31]
Rule XIX, 13.
[32]
1 Records of the Constitutional Commission 436
(Session of July 10, 1986).
[33]
Alice Sturgis, Standard Code of Parliamentary
Procedure, 17 (1950).
[34]
Paul Mason, Manual of Legislative Procedure 335
(1953).
[35]
Conference Committee Report, Rollo, p. 36; Petition,
p. 14; Rollo, p. 16.
[36]
Ibid.
[37]
Petition, p. 14; Rollo, p. 16.
[38]
Astorga v. Villegas, 56 SCRA 714 (1974).
[39]
Mabanag v. Lopez Vito, 78 Phil. 1, 12 (1947).
[40]
Id. at 17, quoting 4 John Wigmore, Treatise on the
Law on Evidence 1350 at 702 (1940). This excerpt is
preserved in the Chadbourne edition of this locus
classicus. See 4 Wigmore on Evidence 1350 at 834
(James H. Chadbourne, ed. 1972).
[41]
EVAT cases [Tolentino v. Secretary of Finance], 235
SCRA at 672. Cf. Morales v. Subido, 27 SCRA
131(1969).
[42]
Philippine Judges Assn v. Prado, 227 SCRA 703, 710
(1993); Morales v. Subido, 27 SCRA 131.
[43]
Casco Philippine Chemical Co., Inc. v. Gimenez, 7
SCRA 347 (1963); Resins, Inc. v. Auditor General,
25 SCRA 754 (1968).
[44]
4 Wigmore on Evidence 1350 (James H.
Chadbourne, ed. 1972); 6 Manuel V. Moran,
Comments on the Rules of Court 115 (1980); 7
Vicente J. Francisco, The Revised Rules of Court
(Pt. II) 454 (1973).
[45]
Marshall Field & Co. v. Clark, 143 U.S. 649, 672, 36
L.Ed. 294, 303 (1891).
[46]
The following are required to be entered on the
Journal: (1) The yeas and nays on the third and final
reading of a bill (Art. VI, 26(2)); (2)
the yeas and nays on any question, at the request of
one-fifth of the members present (Id., 16(4)); (3)
the yeas and nays upon repassing a bill over the
Presidents veto (Id., 27(1); and (4) the Presidents
objection to a bill which he has vetoed. (Id.)
[47]
34 Phil. 729, 735 (1916), quoting State ex rel.
Herron v. Smith, 44 Ohio 348 (1886).
[48]
Gregg v. Barrett, 771 F.2d 529.
[49]
Metzenbaum v. Federal Energy Regulatory Comn,
675 F.2d 1282.