EN BANC
G.R. No. L-33964 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF TEODOSIO LANSANG RODOLFO DEL ROSARIO, and BAYANI ALCALA, petitioners,
vs.
BRIGADIER-GENERAL EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-33965 December 11, 1971
ROGELIO V. ARIENDA, petitioner,
vs.
SECRETARY OF NATIONAL DEFENSE, and CHIEF, PHIL. CONSTABULARY, respondents.
G.R. No. L-33973 December 11, 1971
LUZVIMINDA DAVID, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, COL. N. C. CAMELLO, in his capacity as Chief of Staff, Philippine Constabulary and HON. JUAN PONCE ENRILE in his capacity as Secretary, Department of National defense, respondents.
G.R. No. L-33982 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NEMESIO E. PRUDENTE FELICIDAD G. PRUDENTE, petitioners,
vs.
GENERAL MANUEL YAN, GEN. EDU GARCIA, respondents.
G.R. No. L-34004 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF GERARDO TOMAS, ALSO KNOWN AS "GERRY TOMAS" AND FOR RETURN OF DOCUMENTS ILLEGALLY SEIZED. DOMINGO E. DE LARA, in his capacity as Chairman, Committee on Legal Assistance, Philippine Bar Association, petitioner,
vs.
BRIG. GENERAL EDUARDO M. GARCIA, CHIEF, PHILIPPINE CONSTABULARY, respondent.
G.R. No. L-34013 December 11, 1971
REYNALDO RIMANDO, petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief of the Philippine Constabulary, respondent.
G.R. No. L-34039 December 11, 1971
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUSIN BEHALF OF SGT. FILOMENO M. DE CASTRO AND HIS WIFE, MRS. BARCELISA C. DE CASTRO. CARLOS C. RABAGO, in his capacity as President of the Conference Delegates Association of the Philippines (CONDA),petitioner,
vs.
BRIG. GEN. EDUARDO M. GARCIA, Chief, Philippine Constabulary, respondent.
G.R. No. L-34265 December 11, 1971
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTOLIN ORETA, JR. ANTOLIN ORETA, JR., petitioner,
vs.
GEN. EDUARDO GARCIA and COL. PROSPERO OLIVAS, respondents.
G.R. No. L-34339 December 11, 1971
GARY B. OLIVAR, assisted by his father, GEORGE OLIVAR, petitioner,
vs.
GEN. EDUARDO GARCIA, in his capacity as Chief, Philippine Constabulary, et al., respondents.
Ignacio P. Lacsina for petitioners Teodosio Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V. Arienda.
E. Voltaire Garcia II for petitioner Luzvimindo David.
Verzola, Africa and Atencio, Lorenzo M. Tanada, Wigberto E. Tañada, Fortunato de Leon, R. G. Suntay and Juan T. David for petitioner Felicidad G. Prudente.
Ruben L. Roxas for petitioner Reynaldo Rimando.
Nuñez, Acob, Del Rosario and Ramos for petitioner Carlos Rabago, etc.
E. Voltaire Garcia II and M. P. Vivo for petitioner Gary Olivar, etc., et al.
Jose W. Diokno and Juanito R. Remulla for petitioner Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Office of the Solicitor General Felix Q. Antonio and Assistant Solicitor General Bernardo P. Pardo for respondents.
Separate Opinions
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice easily ranks with his many landmark opinions in Constitutional Law and is in the tradition of the great judicial pronouncements from this Tribunal. Skillful in its analysis, impressive as to its learning, comprehensive in its scope, and compelling in its logic, it exerts considerable persuasive force. There is much in it therefore to which concurrence is easily yielded. I find it difficult however to accept the conclusion that the six petitioners still under detention should not be set free. It is for me a source of deep regret that having gone quite far in manifesting the utmost sympathy for and conformity with the claims of civil liberties, it did not go farther. Candor induces the admission though that the situation realistically viewed may not justify going all the way. Nonetheless the deeply-rooted conviction as to the undoubted primacy of constitutional rights, even under circumstances the least propitious, precludes me from joining my brethren in that portion of the decision reached. Nor should I let this opportunity pass without acknowledging the fairness, even the generosity, in the appraisal of my position in the position of the Chief Justice.
1. The function of judicial review fitly characterized as both delicate and awesome is never more so than when the judiciary is called upon to pass on the validity of an act of the President arising from the exercise of a power granted admittedly to cope with an emergency or crisis situation. More specifically, with reference to the petitions before us, the question that calls for prior consideration is whether the suspension of the privilege of the writ of habeas corpus is tainted by constitutional infirmity. What the President did attested to an executive determination of the existence of the conditions that warranted such a move. For one of the mandatory provisions of the Bill of Rights1 is that no such suspension is allowable, except in cases of invasion, insurrection or rebellion, when the public safety requires, and, even, then, only in such places and for such period of time as may be necessary.2 There is the further provision that the constitutional official so empowered to take such a step is the President.3 The exceptional character of the situation is thus underscored. The presumption would seem to be that if such a step were taken, there must have been a conviction on the part of the Executive that he could not, in the fulfillment of the responsibility entrusted to him, avoid doing so. That decision is his to make; it is not for the judiciary. It is therefore encased in the armor of what must have been a careful study on his part, in the light of relevant information which as Commander-in-Chief he is furnished, ordinarily beyond the ken of the courts. When it is considered further that the Constitution does admit that the sphere of individual freedom contracts and the scope of governmental authority expands during times of emergency, it becomes manifest why an even greater degree of caution and circumspection must be exercised by the judiciary when, on this matter, it is called upon to discharge the function of judicial review.
2. Not that the judiciary has any choice on the matter. That view would indict itself for unorthodoxy if it maintains that the existence of rebellion suffices to call for the disregard of the applicable constitutional guarantees. Its implication would be that the Constitution ceases to be operative in times of danger to national safety and security. Well has the American Supreme Court in the leading case of Ex-parte Milligan4 stated: "The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances." This ringing affirmation should at the very least give pause to those troubled by the continuing respect that must be accorded civil liberties under crisis conditions. The fact that the Constitution provides for only one situation where a provision of the Bill of Rights may be suspended, emphasizes the holding in the above-cited Milligan case that the framers of the Constitution "limited the suspension to one great right and left the rest to remain forever inviolable." While perhaps at times likely to give rise to difficulties in the disposition of cases during a troubled era where a suspension has been decreed, such a view is to be taken into careful consideration.
3. For it is a truism that he Constitution is paramount, and the Supreme Court has no choice but to apply its provisions in the determination of actual cases and controversies before it. Nor is this all. The protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the judiciary.5 The exercise thereof according to Justice Laurel requires that it gives effect to the supreme law to the extent in clear cases of setting aside legislative and executive action.6 The supreme mandates of the Constitution are not to be loosely brushed aside.7 Otherwise, the Bill or Rights might be emasculated into mere expressions of sentiment.8 Speaking of this Court, Justice Abad Santos once pertinently observed: "This court owes its own existence to that great instrument and derives all its powers therefrom. In the exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution."9 Justice Tuason would thus apply the constitutional rights with undeviating rigidity: "To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called 'judicial statesmanship.' The Legislature itself can not infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights." 10
It is in that context, to my mind, that the petitions before us should be appraised, for in terms of physical, as distinguished from intellectual, liberty, the privilege of the writ of habeas corpus occupies a place second to none. As was stressed in Gumabon v. Director of Prisons: 11 "Rightly then could Chafee refer to the writ 'as the most important human rights provision' in the fundamental law." Care is to be taken then lest in the inquiry that must be undertaken to determine whether the constitutional requisites justifying a suspension are present, the effects thereof as to the other civil liberties are not fully taken into account. It affords no justification to say that such a move was prompted by the best motives and loftiest of intentions. Much less can there be acceptance of the view, as contended by one of the counsel for respondents, that between the safety of the overwhelming majority of Filipinos and the claims of the petitioners to liberty, the former must prevail. That is to indulge in the vice of over simplification. Our fundamental postulate is that the state exists to assure individual rights, to protect which governments are instituted deriving their just powers from the consent of the governed. "The cardinal article of faith of our civilization," according to Frank further, "is the inviolable character of the individual." 12
4. With all the admitted difficulty then that the function of judicial review presents in passing upon the executive determination of suspending the privilege of the writ, there is still no way of evading such a responsibility, except on the pain of judicial abdication. It may not admit of doubt that on this matter this Court, unlike the President, cannot lay claim to the experience and the requisite knowledge that would instill confidence in its decisions. That is no warrant for an unquestioning and uncritical acceptance of what was done. It cannot simply fold its hands and evince an attitude of unconcern. It has to decide the case. This it does by applying the law to the facts as found, as it would in ordinary cases. If petitioners then can make out a case of an unlawful deprivation of liberty, they are entitled to the writ prayed for. If the suspension of the privilege be the justification, they could, as they did, challenge its validity. To repeat, this Court, even if denied the fullness of information and the conceded grasp of the Executive still must adjudicate the matter as best it can. It has to act not by virtue of its competence but by the force of its commission a function authenticated by history. 13 That would be to live up to its solemn trust, to paraphrase Cardozo, of preserving the great ideals of liberty and equally against the erosion of possible encroachments, whether minute or extensive. 14 Even if there be no showing then of constitutional infirmity, at least one other branch of the government, that to which such an awesome duty had been conferred has had the opportunity of reflecting on the matter with detachment, with objectivity, and with full awareness of the commands of the Constitution as well as the realities of the situation.
5. Nor is the power of the judiciary to so inquire, negated as contended by respondents, by reliance on the doctrine of political questions. The term has been made applicable to controversies clearly non-judicial and therefore beyond its jurisdiction or to an issue involved in a case appropriately subject to its cognizance, as to which there has been a prior legislative or executive determination to which deference must be paid. 15 It has likewise been employed loosely to characterize a suit where the party proceeded against is the President or Congress, or any branch thereof. 16 If to be de-limited with accuracy, "political questions" should refer to such as would under the Constitution be decided by the people in their sovereign capacity or in regard to which full discretionary authority is vested either in the Presidency or Congress. It is thus beyond the competence of the judiciary to pass upon. 17 Unless, clearly falling within the above formulation, the decision reached by the political branches whether in the form of a congressional act or an executive order could be tested in court. Where private rights are affected, the judiciary has no choice but to look into its validity. It is not to be lost sight of that such a power comes into play if there is an appropriate proceeding that may be filed only after either coordinate branch has acted. Even when the Presidency or Congress possesses plenary power, its improvidence exercise or the abuse thereof, if shown, may give rise to a justiciable controversy. 18 For the constitutional grant of authority is not usually unrestricted. There are limits to what may be done and how it is to be accomplished. Necessarily then, the courts in the proper exercise of judicial review could inquire into the question of whether or not either of the two coordinate branches has adhered to what is laid down by the Constitution. The question thus posed is judicial rather than political. So it is in the matter before us so clearly explained in the opinion of the Chief Justice.
6. The doctrine announced in Montenegro v. Castañeda 19 that such a question is political has thus been laid to rest. It is about time too.ℒαwρhi৷ It owed its existence to the compulsion exerted by Barcelon v. Baker, a 1905 decision. 20 This Court was partly misled by an undue reliance in the latter case on what it considered to be authoritative pronouncements from such illustrious American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evidence in the case of Chief Justice Marshall, whose epochal Marbury v. Madison 21 was cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so. Thus: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, the, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply." 22
Nor is the excerpt from Justice Story, speaking for the United States Supreme Court, in Martin v. Mott, 23 as made clear in the opinion of the Chief Justice, an authority directly in point. There, a militiaman had been convicted of failing to respond to a call, made under the Act of 1795, to serve during the War of 1812. His property was taken to satisfy the judgment. He brought an action of replevin. The American Constitution empowers its Congress "to provide for calling forth the Militia" in certain cases, and Congress did provide that in those cases the President should have authority to make the call. All that Justice Story did in construing the statute in the light of the language and purpose of her Constitution was to recognize the authority of the American President to decide whether the exigency has arisen. In stating that such power was exclusive and thus had a conclusive effect, he relied on the language employed, impressed with such a character. The constitutional provision on the suspension of the privilege of the writ is, as shown, anything but that. 24 Chief Justice Taney, in Luther v. Borden, 25 likewise had to deal with a situation involving the calling out of the militia. As a matter of fact, an eminent commentator speaking of the two above decisions had this apt observation: "The common element in these opinions would seem to be a genuine judicial reluctance to speak in a situation where the voice of the Court, even if heard, could not have any effect. More than this, both Story and Taney seem to share the suspicion, unusual in them, that under a popular form of government there are certain questions that the political branches must be trusted to answer with finality." 26 What was said next is even more pertinent. Thus: "It would be dangerous and misleading to push the principles of these cases too far, especially the doctrine of 'political questions' as implied in Luther v. Borden. Given the opportunity to afford a grievously injured citizen relief from a palpably unwarranted use of presidential or military power, especially when the question at issue falls in the penumbra between the 'political' and the 'justiciable', the Court will act as if it had never heard of this doctrine and its underlying assumption that there are some powers against which the judiciary simply cannot be expected to act as the last line of defense." 27 It would thus seem evidence that support for the hitherto prevailing Montenegro ruling was rather frail. Happily, with our decision, it is no longer capable of the mischief to which it does lend itself of an undue diminution of judicial power to the prejudice of constitutional rights.
7. With such presidential determination of the existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid. The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is that there was a manifestation of presidential power well-nigh touching the extreme border of his conceded competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not been made.
8. Why the dissent then. My basic premise is that the suspension of the privilege of the writ partakes of an executive action which if valid binds all who are within its operations. The function of enacting a legal norm general in character appertains to either Congress or the President. Its specific application to particular individuals, like petitioners here, is however a task incumbent on the judiciary. What is more, as had just been explained, its validity maybe tested in courts. Even if valid, any one may seek judicial determination as to whether he is embraced within its terms. After our declaration of the validity of the Proclamation No. 889 as amended, the next question is its applicability to petitioners. I am the first to recognize the meticulous care with which the Chief Justice, after reaching the conclusion that petitioners are covered by the suspension, saw to it that their constitutional rights are duly safeguarded in whatever proceedings they would have thereafter to face. There is thus as assurance that as far as human foresight can anticipate matters, the possibility of abuse is minimized.
The matter, for me, could be viewed independently of whether or not petitioners, by the conduct imputed to them, could be detained further by virtue of the suspension of the privilege of the writ. For admittedly, a supervening fact, the Executive's determination to have them charged according to the ordinary procedural rules, did present itself. There was thus introduced an element decisive in its consequences. They are entitled to treatment no different from that accorded any other individual facing possible criminal charges. The opinion of the Chief Justice is correct in pointing out that such an approach follows the dictum of Justice Tuason, speaking for himself in Nava v. Gatmaitan, 28 where a majority of five, lacking just one vote to enable this Court to reach a binding decision, did arrive at the conclusion that the suspension of the privilege of the writ does not suspend the right to bail. Thus: "By the same token, if and when formal complaint is presented, the court steps in and the executive steps out. The detention ceases to be an executive and becomes a judicial concern. Thereupon the corresponding court assumes its role and the judicial process takes its course to the exclusion of the executive or the legislative departments. Hence forward, the accused is entitled to demand all the constitutional safeguards and privileges essential to due process." 29 Parenthetically, it may be observed that the above view reflects the stand taken by Justice Recto, fortified by Justice Laurel, drawing heavily on continental juristic thought, both of whom, having retired from the bench and thereafter having been elected to the Senate, were invited to appear as amici curiae in the Nava case.
It would follow to my way of thinking then that the petitioners still detained ought not to be further deprived of their liberty in the absence of a warrant of arrest for whatever offense they may be held to answer, to be issued by a judge after a finding of probable cause. That is to comply with the constitutional requirement against unreasonable search and seizure. 30 Moreover, to keep them in confinement after the ordinary processes of the law are to be availed of, as thereafter decreed by the Executive itself is to ignore the safeguard in the Bill of Rights that no person shall be held to answer for a criminal offense without due process of law. 31 That would explain why with full recognition of the sense of realism that infuses the opinion of the Court, I cannot, from the above standpoint, reach the same conclusion they did. These six petitioners, Rodolfo del Rosario, Victor Felipe, Luzvimindo, David, Gary Olivar, Angelo de los Reyes and Teresito Sison, have, for me, become immune from the operation of the proclamation suspending the privilege of the writ of habeas corpus and are thus entitled to their liberty. I am reinforced in my conviction by the well-settled principle of constitutional construction that if there are two possible modes of interpretation, that one which raises the least constitutional doubt should be preferred. Certainly, to my way of thinking, the choice is obvious. That interpretation which would throw the full mantle of protection afforded by the Constitution to those unfortunate enough to be caught in the meshes of criminal law is more in keeping with the high estate accorded constitutional rights.
There is another consideration that strengthens my conviction on the matter. The language of the Constitution would seem to imply at the most that the suspension of the privilege of the writ renders it unavailable for the time being. Still there are authorities sustaining the view that preventive detention subject to the test of good faith is allowable.32 Such a doctrine is no doubt partly traceable to Anglo-American legal history where as pointed out by Maine: "Substantive law has at first the look of being gradually secreted in the interstices of procedure." 33 The writ of habeas corpus then is more than just an efficacius device or the most speedy means of obtaining one's liberty. It has become a most valuable substantive right. It would thus serve the cause of constitutional rights better if the Tuason dictum as to the judicial process supplanting executive rule the moment charges are filed be accorded acceptance. Thereby the number of individuals who would have to submit to further detention, that may well turn out to be unjustified, would be reduced. What is more, greater fidelity is manifested to the principle that liberty is the rule and restraint the exception.
I am not of course insensible to the observation in the opinion of the Court that this concept could be an obstacle to the early resumption of the ordinary judicial process as the Executive might be minded to postpone resort to it, considering that there would necessarily be an end to the detention at that early stage of individuals who continue to pose risk to the safety of the government. It does occur to me, however, that the presumption should be that the high executive dignitaries can be trusted to act in accordance with the dictates of good faith and the command of the Constitution. At least, such seems to be the case now. The opinion of the Court is quite explicit as to the measures taken to minimize the possibility of abuse from officials in the lower category, who in their zeal or even from less worthy motives might make a mockey of the other constitutional rights. That is as it should be. It should continue to be so even if there be acceptance of the doctrine enunciated by Justice Tuason. There is, for me at least, no undue cause for pessimism.
These is to my mind another reinforcement to this approach to the question before us, perhaps one based more on policy rather than strictly legal considerations. The petitioners who have not been released are youth leaders, who for motives best known to them, perhaps excess of idealism, impatience with existing conditions, even overweening ambition, clamor for change, apparently oblivious at times that it could be accomplished through means of which the law does not disapprove. It would be premature at this stage to say whether or not their activities have incurred for them a penal sanction, which certainly would be appropriate if their conduct is beyond the pale. Even they should recognize that the existing order has the right to defendant itself against those who would destroy it. Nonetheless as a constitutional democracy can justifiably pride itself on its allegiance to ways of persuasion rather than coercion, the most meticulous observance of the free way of life seems to me, even at this stage, not without its beneficent influence on their future course of conduct. This is not by any means to intimate that my brethren view matters differently. Far from it. Any difference if at all in the positions taken is a question of emphasis. Rightly, the opinion of the Chief Justice stresses the importance of the rule of law. It is to be hoped that with a proper understanding of what has been decided by the Court today, there would be a diminution of the wholesale condemnation of the present system of government by some sectors of the youth and perhaps even lead to much-needed refinement in the volume and quality of their utterances. It could even conceivably, not only for them but for others of a less radical cast of mind, but equally suffering from disenchantment and disillusion, induce a reassessment and reappraisal of their position, even if from all appearances their commitment and dedication are plain for all to see. More than that, such a response will go a long way towards a keener appreciation of the merits of a constitutional democracy. For thereby, it demonstrates that it lives up to its ideas; it strives to act in accordance with what it professes. Its appeal for all sectors or society becomes strengthened and vitalized. Nor do I close my eyes to the risk that such an attitude towards those who constitute a source of danger entails. That for me is not conclusive. With nations, as with ordinary mortals, that is unavoidable. Repose, in the often-quoted aphorism of Holmes, is not the destiny of man.
9. One last observation. It would appear to me that if there is really a resolve to maintain inviolate constitutional rights for all, more especially so for those inclined and disposed to differ and to be vocal, perhaps even intemperate, in their criticism, that serious thought should be given to the desirability of removing from the President his power to suspend the privilege of the writ of habeas corpus as well as the power to declare martial law. Nor would the government be lacking in authority to cope with the crisis of invasion, insurrection, or rebellion or lawless violence, as the President as commander-in-chief can summon the aid of the armed forces to meet the danger posed to public safety. If the privilege of the writ cannot be suspended and martial law beyond the power of the President to declare, there is a greater likelihood as far as the rights of the individual are concerned, of the Constitution remaining at all times supreme, as it ought to be, whether it be in peace or in war or under other crisis conditions. As long, however, as such a presidential prerogative exists, it would not be proper for the courts not to accord recognition to its exercise, if there be observance of the limitations imposed by the Constitution. At the most, they can only through construction nullify what would amount to an unconstitutional application. How desirable it would be then, to my way of thinking, if the Constitution would strip the President of such power. That would be constitutionalism triumphant. In terms of Lincoln's memorable dilemma, the government would be neither too strong for the liberties of the people nor too weak to maintain its existence. This is a matter though appropriately addressed to the Constitutional Convention.
On the purely legal aspect, however, let me reiterate that my acceptance of the Tuason dictum in the Nava case did result in my inability to concur fully with the opinion of the Chief Justice, which, as pointed out at the outset, is possessed of a high degree of merit.
Footnotes
1 Art. III, Constitution.
2 According to the Constitution: "The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist." Art. III, Sec. 1, par. (14).
3 On this point, the Constitution reads: "In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus or place the Philippines or any part thereof under martial law." Art. VII, Sec. 10, par. (2).What is immediately noticeable is that the existence of an imminent danger of invasion, insurrection, or rebellion was included in the justification for the suspension.
4 4 Wall. 123 (1866).
5 Alvarez v. Court, 64 Phil. 33 (1937).
6 People v. Vera, 65 Phil. 56, 94-95 (1937).
7 Pampanga Bus Co. v. Pambusco Employees Union, 68 Phil. 541 (1939).
8 Angara v. Electoral Tribunal, 63 Phil. 139, 157 (1936).
9 Schneckburger v. Moran, 63 Phil. 249, 251-252 (1936).
10 90 Phil. 172, at p. 209 (1951).
11 L-30026, January 30, 1971, 37 SCRA 420, 423.
12 American Communications Asso. v. Douds, 339 US 382, 421 (1951).
13 Cf. West Virginia State Board of Education v. Barnette, 319 US 624 (1943).
14 Cardozo, The Nature of Judicial Process, 92-93 (1921).
15 Cf. Vera v. Avelino, 77 Phil. 192 (1946); Lopez v. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales v. Commission on Elections, L-28196, No. 9, 1967, 21 SCRA 774.
16 Cf. Planas v. Gil, 67 Phil. 62 (1937); Vera v. Avelino, 77 Phil. 192 (1946).
17 Cf. Tañada v. Cuenco, 103 Phil. 1051 (1957).
18 Cf. Morrero v. Bocar, 66 Phil. 429 (1938); Rodriguez v. Quirino, L-19800, October 28, 1963, 9 SCRA 284.
19 91 Phil. 882 (1952).
20 5 Phil. 87.
21 1 Cranch 137 (1803).
22 Ibid., pp. 177-178.
23 12 Wheaton 19 (1827).
24 Cf. Fairman, The Law of Martial Rule and the National Emergency, 55 harvard Law Review, 1253, 1270-1271 (1942).
25 7 Howard 1 (1849).
26 Rossiter, The Supreme Court and the Commander in Chief, pp. 16-17 (1951).
27 Ibid., p. 17.
28 90 Phil. 172 (1951).
29 Ibid., p. 204.
30 According to Article III, Section 1, paragraph 3 of the Constitution: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized."
31 Article III, section 1, paragraph 15, Constitution.
32 Cf. Ex parte Milligan, 4 Wallace 2 (1866); Moyer v. Peabody, 212 US 78 (1909); Ex parte Simmerman, 132 F2 442(1942). That was likewise acknowledged in the opinion of Justice Tuason in the Nava case.
33 Cf. Chafee, Free Speech in the United States, p. 63 (1941). Holmes and Maitland entertained a similar view.
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