---

G.R.No. L-35546, September 17, 1974,
♦ Decision, Makalintal, [CJ]
♦ Separate Opinion, Castro, [J] Teehankee, [J] Antonio, [J] Esguerra, [J] Fernandez, [J] Muñoz Palma, [J]
♦ Concurring & Dissenting Opinion, Fernando, [J]
♦ Concurring Opinion, Barredo, [J]

---

EN BANC

G.R. No. L-35546 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BENIGNO S. AQUINO, JR., RAMON MITRA, JR., FRANCISCO RODRIGO, AND NAPOLEON RAMA, petitioners,
vs.
HON JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.

G.R. No. L-35538 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOAQUIN P. ROCES, TEODORO M. LOCSIN, SR., ROLANDO FADUL, ROSALINA GALANG, GO ENG GUAN, MAXIMO V. SOLIVEN, RENATO CONSTANTINO, AND LUIS R. MAURICIO, petitioners,
vs.
THE SECRETARY OF NATIONAL DEFENSE; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; THE CHIEF, PHILIPPINE CONSTABULARY, et al., respondents.

G.R. No. L-35539 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF JOSE W. DIOKNO, CARMEN I. DIOKNO, *1 petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; ROMEO ESPINO, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES. respondents.

G.R. No. L-35540 September 17, 1974

MAXIMO V. SOLIVEN, NAPOLEON G. RAMA, AND JOSE MARI VELEZ, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; HON. FRANCISCO TATAD, PRESS SECRETARY; AND GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.

G.R. No. L-35547 September 17, 1974 *2

ENRIQUE VOLTAIRE GARCIA II, petitioner,
vs.
BRIG. GEN. FIDEL RAMOS, CHIEF, PHILIPPINE CONSTABULARY; GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE, respondents.

G.R. No. L-35556 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF VERONICA L. YUYITUNG AND TAN CHIN HIAN, petitioners,
vs.
JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY, respondents.

G.R. No. L-35567 September 17, 1974

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF AMANDO DORONILA JUAN L. MERCADO, HERNANDO L. ABAYA, ERNESTO GRANADA, LUIS D. BELTRAN, TAN CHIN HIAN, BREN GUIAO, RUBEN CUSIPAG, ROBERTO ORDOÑEZ, MANUEL ALMARIO AND WILLIE BAUN, petitioners,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; LIEUT. GEN. ROMEO ESPINO, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES; AND BRIG. GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY, respondents.

G.R. No. L-35571 September 17, 1974. *3

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF BREN Z. GUIAO, TERESITA M. GUIAO, petitioner,
vs.
JUAN PONCE ENRILE, THE SECRETARY OF NATIONAL DEFENSE; LT. GEN. ROMEO ESPINO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES: AND BRIG. GEN. FIDEL V. RAMOS, CHIEF OF THE PHILIPPINE CONSTABULARY, respondents.

G.R. No. L-35573 September 17, 1974

ERNESTO RONDON, petitioner,
vs.
HON. JUAN PONCE ENRILE, SECRETARY OF NATIONAL DEFENSE; GEN. FIDEL V. RAMOS, CHIEF, PHILIPPINE CONSTABULARY; AND MAJOR RODULFO MIANA, respondents.

Separate Opinions

Prefatory Note
(written on September 12, 1974)

My separate opinion below in the nine cases at bar was handed to Chief Justice Querube C. Makalintal on Monday, September 9, 1974, for promulgation (together with the individual opinions of the Chief Justice and the other Justices) on September 12 (today) as agreed upon by the Court.

On September 11 the petitioner Jose W. Diokno was released from military custody. The implications of this supervening event were lengthily discussed by the Court in its deliberations in the afternoon. Eleven members thereafter voted to dismiss Diokno's petition as being "moot and academic;" I cast the lone dissenting vote. Although perhaps in the strictest technical sense that accords with conventional legal wisdom, the petition has become "moot" because Diokno has been freed from physical confinement, I am nonetheless persuaded that the grave issues of law he has posed and the highly insulting and derogatory imputations made by him against the Court and its members constitute an inescapable residue of questions of transcendental dimension to the entire nation and its destiny and to the future of the Court — questions that cannot and should not be allowed to remain unresolved and unanswered.

I have thus not found it needful nor even advisable to recast my separate opinion or change a word of it.

I invite the reader to assess my 38-page separate opinion which immediately follows, in the light of the foregoing context and factual setting.

FRED RUIZ CASTRO
Associate Justice.

SEPARATE OPINION
(written before Sept. 9, 1974) L-35539, L-35546, L-35538, L-35540, L-35567, L-35556, L-35571, L-35573, and L-35547

CASTRO, J.:

I

These nine cases are applications for writs of habeas corpus. The petitions aver in substance that on September 21, 1972 the President of the Philippines placed the country under martial law (Proclamation 1081); that on various dates from September 22 to September 30, 1972, the petitioners or the persons in whose behalf the applications were made were arrested by the military authorities and detained, some at Fort Bonifacio in Makati, Rizal, others at Camp Aguinaldo and still others at Camp Crame, both in Quezon City; and that the arrest and detention of the petitioners were illegal, having been effected without a valid order of a competent court of justice.

Writs of habeas corpuz were issued by the Court directing the respondents Secretary of National Defense, Chief of Staff of the Armed Forces of the Philippines, and Chief of the Philippine Constabulary, to produce the bodies of the petitioners in Court on designated dates and to make returns to the writs. In due time the respondents, through the Solicitor General, filed their returns to the writs and answers to the petitions. Admitting that the petitioners had been arrested and detained, the respondents nevertheless justified such arrest and detention as having been legally ordered by the President of the Philippines pursuant to his proclamation of martial law, the petitioners being regarded as participants or as having given aid and comfort "in the conspiracy to seize political and state power and to take over the government by force." The respondents traversed the petitioners' contention that their arrest and detention were unconstitutional.

Hearings were held on September 26 and 29 and October 6, 1972, at which the petitioners were produced in Court. Thereafter the parties filed memoranda.

Meanwhile, some of the petitioners, with leave of Court, withdrew their petitions;1others, without doing so, were subsequently released from custody under certain restrictive conditions.2Enrique Voltaire Garcia II, the sole petitioner in L-35547 and one of those released, having died shortly after his release, the action was deemed abated as to him.

As of this date only Jose W. Diokno, in whose behalf the petition in L-35539 was filed, and Benigno S. Aquino, Jr. in L35546, are still in military custody.

On August 23, 1973 the petitioner Aquino filed an action for certiorari and prohibition with this Court alleging that on August 11, 1973 charges of murder, subversion and illegal possession of firearms were filed against him with a military commission; that his trial by the military court which was to be held on August 27, 29 and 31, 1973 was illegal because the proclamation of martial law was unconstitutional; and that he could not expect a fair trial because the President of the Philippines, having prejudged his case, could reverse any judgment of acquittal by the military court and sentence him to death. That action, docketed as L-37364 and entitled "Benigno S. Aquino, Jr. vs. Military Commission No. 2," is still pending consideration and decision.

On the other hand, Jose W. Diokno, on December 28, 1973, filed a motion to withdraw the petition filed in his behalf, imputing delay in the disposition of his case, and asseverating that because of the decision of the Court in the Ratification Cases3 and the action of the members of the Court in taking an oath to support the new Constitution, he cannot "reasonably expect to get justice in this case." The respondents oppose the motion on the grounds that there is a public interest in the decision of these cases and that the reasons given for the motion to withdraw are untrue, unfair and contemptuous.

II

The threshold question is whether to allow the withdrawal of the petition in L-35539 filed in behalf of Diokno. In his letter to his counsel, which is the basis of the motion to withdraw, Diokno states the following considerations: first, the delay in the disposition of his case; second, the dismissal of the petitions in the Ratification Cases, contrary to the Court's ruling that the 1973 Constitution was not validly ratified; and third, the action of the members of the Court in taking an oath of allegiance to the new Constitution. Diokno asserts that "a conscience that allows a man to rot behind bars for more than one year and three months without trial — of course, without any charges at all — is a conscience that has become stunted, if not stultified" and that "in swearing to support the new 'Constitution,' the five members of the Court who had held that it had not been validly ratified, have not fulfilled our expectations." He goes on to say: "I do not blame them. I do not know what I would have done in their place. But, at the same time, I can not continue to entrust my case to them; and I have become thoroughly convinced that our quest for justice in my case is futile."

As already noted, the Solicitor General, in behalf of the respondents, opposes the withdrawal of the petition on the ground of public interest, adding that the motion to withdraw cannot be granted by the Court without in effect admitting the "unfair, untrue and contemptuous" statements contained therein.

Without passing on the liability of any party in this case for contemptuous statements made, the Court (by a vote of 5 to 7) denied the motion.

I voted for the denial of the motion to withdraw for inescapable reasons that I now proceed to expound.

The general rule is that in the absence of a statute expressly or impliedly prohibiting the withdrawal of an action, the party bringing such action may dismiss it even without the consent of the defendant or respondent where the latter will not be prejudiced, although it may be necessary to obtain leave of court. But there are recognized exceptions: when the public interest or questions of public importance are involved.5For example, the fact that a final determination of a question involved in an action is needed or will be useful as a guide for the conduct of public officers or tribunals is a sufficient reason for retaining an action which would or should otherwise be dismissed. Likewise, appeals may be retained if the questions involved are likely to arise frequently in the future unless they are settled by a court of last resort.

Thus, in Gonzales vs. Commission on Elections,6an action for declaratory judgment impugning the validity of Republic Act No. 4880 which prohibits the early nomination of candidates for elective offices and early election campaigns or partisan political activities became moot by reason of the holding of the 1967 elections before decision could be rendered. Nonetheless the Court treated the petition as one for prohibition and rendered judgment in view of "the paramount public interest and the undeniable necessity for a ruling, the national elections [of 1969] being barely six months away.

In Krivenko vs. Register of Deeds,7the Court denied the petition to withdraw, an appeal in view of the public importance of the questions involved, and lest "the constitutional mandate [proscribing the sale of lands to aliens] ... be ignored or misconceived with all the harmful consequences ... upon the national economy."

The petitioner Diokno has made allegations to the effect that the President has "arrogated" unto himself the powers of government by "usurping" the powers of Congress and "ousting" the courts of their jurisdiction, thus establishing in this country a "virtual dictatorship." Diokno and his Counsel have in fact stressed that the present trend of events in this country since the proclamation of martial law bears a resemblance to the trend of events that led to the establishment of a dictatorship in Germany under Hitler. There is thus a profound public interest in the resolution of the questions raised in the cases at bar, questions that, in the phrase of Chief Justice Marshall in Marbury vs. Madison,8are "deeply interesting to the nation." I apprehend that in view of the import of the allegations made by Diokno and his counsel, incalculable harm or, in the very least, great disservice may be caused to the national interest if these cases are not decided on the merits. As the Solicitor General has observed," petitioner's [Diokno's] arrest and detention have been so exploited in the hate campaign that the only way to protect the integrity of the government is to insist on a decision of this case in the forum in which the petitioner had chosen to bring them. Otherwise, like festering sores, the issues stirred up by this litigation will continue to agitate the nation."

Prescinding from the policy considerations just discussed, I am gladdened that the Court has not shunted aside what I regard as the inescapable moral constraints in the petitioner Diokno's motion to withdraw his petition for habeas corpus.9The Court repudiated the facile recourse of avoiding resolution of the issues on the pretext that Diokno insists on withdrawing his petition. It is thus not a mere happenstance that, notwithstanding that seven members of the Court are of the view that Diokno has an absolute right to withdraw his petition, the Court has confronted the issues posed by him, and now resolves them squarely, definitively and courageously. No respectable legal historian or responsible chronicler of the nation's destiny will therefore have any reason to level the indictment that once upon a grave national crisis the Court abdicated its constitutional prerogative of adjudication and forswore the sacred trust reposed in it as the nation's ultimate arbiter on transcendental, far-reaching justiciable questions.

With respect to the reasons given for the motion to withdraw, the Court is mindful that it has taken some time to resolve these cases. In explanation let it be said that the issues presented for resolution in these cases are of the utmost gravity and delicateness. No question of the awesome magnitude of those here presented has ever confronted the Court in all its history. I am not aware that any other court, except possibly the Circuit Court in Ex parte Merryman,10has decided like questions during the period of the emergency that called for the proclamation of martial law.

But then in Merryman the Court there held that under the U.S. Federal Constitution the President did not have power to suspend the privilege of the writ of habeas corpus. Otherwise, where the question involved not power but rather the exercise of power, courts have declined to rule against the duly lasted. As Court Glendon Schubert noted, the U.S. Supreme Court "was unwilling to [do so] until the war was over and Lincoln was dead."

Thus, in Ex parte Milligan,11the decision voiding the petitioner's trial by a military court was not announced until December 14, 1866, after the Civil War was over.ℒαwρhi৷ The Civil War began on May 3, 1861 with the capture of Fort Sumter by Confederate forces. Lambdin Milligan was charged before a military commission with aiding rebels, inciting insurrection, disloyal practices and violation of the laws of war. His trial ran from September to December 1862; he was convicted on October 21, 1864 and ordered executed on May 19, 1865. On May 10, 1865 he applied for a writ of habeas corpus from the Circuit Court of Indianapolis. On May 11, Justice Davis and Judge McDonald certified that they differed in opinion and, therefore, pursuant to the statute of 1802, elevated their questions to the Supreme Court. On June 3, 1865 the death sentence was commuted to life imprisonment by President Johnson who had succeeded to the Presidency after the assassination of Lincoln. The Supreme Court heard the parties' arguments for eight days, on March 5, 6, 7, 8, 9, 12 and 13, and April 3, 1866. On December 14, 1866 the decision of the Supreme Court voiding Milligans trial was announced.

In In Re Moyer,12martial rule was proclaimed in Colorado on March 23, 1904. Application for a writ of habeas corpus was filed with the State Supreme Court on April 14, 1904, seeking the release of Moyer who had been detained under the Colorado governor's proclamation. On June 6, 1904 the complaint was dismissed and the petitioner was remanded to the custody of the military authorities. The Court held that as an incident to the proclamation of martial law, the petitioner's arrest and detention were lawful. Moyer subsequently brought an action for damages for his imprisonment from March 30 to June 15, 1904. The complaint was dismissed by the Circuit Court. On writ of error, the U.S. Supreme Court affirmed, holding that "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 no reasonable ground for his belief."13

Finally, in Duncan vs. Kahanamoku,14Hawaii was placed under martial rule on December 7, 1941, after the Japanese sneak attack on Pearl Harbor. The petitioner Duncan was tried by a provost court on March 2, 1944, and found guilty on April 13 of assault on two marine sentries. The other petitioner, White, was charged on August 25, 1942, also before a provost court, with embezzling stocks belonging to another civilian. White and Duncan questioned the power of the military tribunals in petitions for habeas corpus filed with the District Court of Hawaii on March 14 and April 14, 1944, respectively. Writs were granted on May 2, 1944, and after trial the District Court held the military trials void and ordered the release of Duncan and White. On October 24, 1944 the privilege of the writ of habeas corpus was restored and martial law was terminated in Hawaii. On appeal, the decision of the District Court was reversed.15Certiorari was granted by the U.S. Supreme Court on February 12, 1945. 16 On February 25, 1946 the Court held that the trials of White and Duncan by the military tribunals were void.

In truth, as the Court in Milligan recognized, its decision could not have been made while the Civil War lasted. Justice Davis wrote:

During the Wicked Rebellion, the temper of the times did not allow that calmness in deliberation and discussion so necessary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question as well as all others, can be discussed and decided without passion or the admixture of an clement not required to form a legal judgment. We approached the investigation of this case fully sensible of the magnitude of the inquiry and the of full and cautious deliberation.17

No doubt there is a point, although controversial, in the observation that in the instances just examined a successful challenge was possible only retroactively, after the cessation of the hostilities which would under any circumstances have justified the judgment of the military.18

Nor did it offend against principle or ethics for the members of this Court to take an oath to support the 1973 Constitution. After this Court declared that, with the dismissal of the petitions questioning the validity of the ratification of the new Constitution, there was "no longer any judicial obstacle to the new Constitution being considered in force and effect,"19it became the duty of the members of the Court, let alone all other government functionaries, to take an oath to support the new Constitution. While it is true that a majority of six justices declared that the 1973 Constitution was not validly ratified, it is equally true that a majority of six justices held that the issue of its effectivity was a political question, which the Court was not equipped to determine, depending as it did on factors for which the judicial process was not fit to resolve. Resolution of this question was dispositive of all the issues presented in the Ratification Cases. It thus became untenable for the members of the Court who held contrary opinions to press their opposition beyond the decision of those cases. Fundamental respect for the rule of law dictated that the members of the Court take an oath to uphold the new Constitution. There is nothing in that solemn oath that debases their individual personal integrity or renders them unworthy or incapable of doing justice in these cases. Nor did the environmental milieu of their adjuration in any manner demean their high offices or detract from the legitimacy of the Court as the highest judicial collegium of the land.

III

From its Anglo-Saxon origin and throughout its slow evolution, the concept, scope and boundaries, application, limitations and other facets of martial law have been the subject of misunderstanding, controversy and debate.20To the legal scholar interested in set legal principles and precise distinctions, martial law could be a frustrating subject. On the matter of its definition alone, it is known to have as many definitions as there are numerous authors and court decision s (not to discount the dissenting opinions) on the subject. The doctrinal development of martial law has relied mainly on case law,21and there have been relatively few truly distinctive types of occasions where martial law, being the extraordinary remedy that it is, has been resorted to.

In the Philippines, the only other notable instance when martial law was declared was on September 22, 1944, per Proclamation No. 29 promulgated by President Jose P. Laurel. But this was pursuant to the constitution of the short-lived Japanese Occupation Republic, and the event has not been known to be productive of any jurisprudential pronouncements emanating from the high court of the land.

Notwithstanding the confused state of jurisprudence on the subject of martial law in England and in the United States, and, consequently, in the Philippines, a useful knowledge of the law on the subject can fairly be had from a study of its historical background and its rationale, its doctrinal development, applicable constitutional and statutory provisions, and authoritative court decisions and commentaries.

Legal scholars trace the genesis of martial law to England starting from the age of the Tudors and the Stuarts in the 14th century when it was first utilized for the suppression of rebellions and disorders. It later came to be employed in the British colonies and dominions where its frequent exercise against British subjects gave rise to the criticism that it was being exploited as a weapon to enhance British imperialism.22

In the United States, martial law was declared on numerous occasions from the revolutionary period to the Civil War, and after the turn of the century. One of the earliest instances in American history was the declaration of martial law by Gen. Andrew Jackson before the Battle of New Orleans in 1814. Fearing that the New Orleans legislature might capitulate to the British, he placed the State under "strict martial law" and forbade the State legislature to convene. Martial law was lifted after the American victory over British arms. The Civil War period saw the declaration of martial law on many occasions by both the Confederate and the Union authorities. It has also been resorted to in cases of insurrection and rebellion, as exemplified by the Whiskey rebellion (1794 in Pennsylvania and Virginia) and the Dorr's rebellion (1842 in Rhode Island). Martial law has also been utilized during periods of disaster, such as the San Francisco earthquake and fire of 1906, and in industrial disputes involving violence and disorder. It has likewise been variously instituted to police elections, to take charge of ticket sales at a football game, to prevent the foreclosure of mortgages to close a race track. In an extreme case, the governor of Georgia proclaimed martial law around a government building to exclude from its premises a public official whom he was enjoined from removing.23

At the close of the World War I, the term "martial law" was erroneously employed to refer to the law administered in enemy territory occupied by the allied forces pending the armistice . 21 William Winthrop states that the earlier confusion regarding the concept of martial law, resulting partly from the wrong definition of the term by the Duke of Wellington who had said that "it is nothing more nor less than the will of the general," had misled even the Supreme Court of the United States.25In the leading case of Ex Parte Milligan,26however, Chief Justice Chase, in his dissenting opinion, clarified and laid down the classic distinctions between the types of military jurisdiction in relation to the terms "martial law," "military law" and "military government," which to a great extent cleared the confusion in the application of these terms.

These distinctions were later incorporated in the Manual for Courts-Martial of the United States Army,27after which the Manual for Courts-Martial of the Armed Forces of the Philippines, promulgated on December 17, 1938 pursuant to Executive Order No. 178, was patterned. In essence, these distinctions are as follows:

a. Military jurisdiction in relation to the term military law is that exercised by a government "in the execution of that branch of its municipal law which regulates its military establishment." (In the U.S. and the Philippines, this refers principally to the statutes which embody the rules of conduct and discipline of members of their respective armed forces. In the Philippines we have for this purpose Commonwealth Act No. 408, as amended, otherwise known as "The Article of War").

b. Military jurisdiction in relation to the term martial law is that exercised in time of rebellion and civil war by a government temporarily governing the civil population of a locality through its military forces, without the authority of written law, as necessity may require.28

c. Military jurisdiction in relation to the term military government is that "exercised by a belligerent occupying an enemy's territory."29(A familiar example of a military government was, of course, that established and administered by the Japanese armed forces in the Philippines from 1942 to 1945).

What is the universally accepted fundamental justification of martial law? Wiener in A Practical Manual Martial Law,30ventures this justification: "Martial Law is the public law of necessity. Necessity calls it forth, necessity justifies its existence, and necessity measures the extent and degree to which it may be employed."

Martial law is founded upon the principle that the state has a right to protect itself against those who would destroy it, and has therefore been likened to the right of the individual to self-defense.31It is invoked as an extreme measure, and rests upon the basic principle that every state has the power of self-preservation, a power inherent in all states, because neither the state nor society would exist without it.32

IV

I now proceed to discuss the issues posed in these cases.

In Proclamation 1081, dated September 21, 1972, the President of the Philippines declared that lawless elements, supported by a foreign power, were in "armed insurrection and rebellion against the Government of the Philippines in order to forcibly seize political and state power, overthrow the duly constituted government and supplant our existing political, social, economic and legal order with an entirely new one ... based on the Marxist-Leninist-Maoist teachings and beliefs." He enumerated many and varied acts of violence committed in pursuance of the insurrection and rebellion. He therefore placed the Philippines under martial law, commanded the armed forces to suppress the insurrection and rebellion, enforce obedience to his decrees, orders and regulations, and arrest and detain those engaged in the insurrection and rebellion or in other crimes "in furtherance or on the occasion thereof, or incident thereto or in connection therewith." The President invoked his powers under article VII section 10(2) of the 1935 Constitution "to save the Republic and reform our society."33

By General Order No. 2 the President directed the Secretary of National Defense to "forthwith arrest or cause the arrest ... the individuals named in the attached lists for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the government by force ... in order to prevent them from further committing acts that are inimical or injurious ..." The Secretary was directed to hold in custody the individuals so arrested "until otherwise so ordered by me or by my duly designated representative." The arrest and detention of the petitioners in these cases appear to have been made pursuant to this order.

I cannot blink away the stark fact of a continuing Communist rebellion in the Philippines. The Court has repeatedly taken cognizance of this fact in several eases decided by it. In 1971, in Lansang vs. Garcia,34the Court, after reviewing the history of the Communist movement in the country since the 1930s, concluded: "We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines." It affirmed this finding in 1972 35 in sustaining the validity of the Anti-Subversion Act (Republic Act 1700). The Act is itself a congressional recognition and acute awareness of the continuing threat of Communist subversion to democratic institutions in this country. Enacted in 1957, it has remained in the statute books despite periodic agitation in many quarters for its total excision.

At times the rebellion required no more than ordinary police action, coupled with criminal prosecutions. Thus the 1932 Communist trials resulted in the conviction of the well-known Communists of the day: Crisanto Evangelista, Jacinto G. Manahan, Dominador J. Ambrosio, Guillermo Capadocia, Ignacio Nabong and Juan Feleo, among others, for crimes ranging from illegal association to rebellion and sedition.36

The end of World War II saw the resurgence of the Communist rebellion. Now with an army forged out of the former Hukbalahaps (the armed resistance against the Japanese) and renamed Hukbong Mapagpalaya ng Bayan or HMB, the threat to the security of the state became so malevolent that on October 22, 1950, President Elpidio Quirino was impelled to suspend the privilege of the writ of habeas corpus. This enabled the Government to effect the apprehension of top Communist Party leaders Guillermo Capadocia, Flavio Nava, Amado V. Hernandez, Jesus Lava, Jose Lava, Angel Baking and Simeon Rodriguez, among others.37When challenged by one of those detained under the Presidential proclamation the suspension of the privilege of the writ of habeas corpus was sustained by the Court.38

The beginning of the 1970s was marked by the rise of student activism. This phenomenon swept around the globe, and did not spare our own colleges and universities. Soon the campuses became staging grounds for student demonstrations that generally ended in bloody and not infrequently lethal street riots.

In Navarro vs. Villegas,39in upholding the power of the Mayor of Manila to determine the place and time for the holding of public assemblies, this Court noted —

That experiences in connection with present assemblies and demonstrations do not warrant the Court's disbelieving respondent Mayor's appraisal that a public rally at Plaza Miranda, as compared to one at the Sunken Gardens as he suggested, poses a clearer and more imminent danger of public disorders, breaches of the peace, criminal acts, and even bloodshed as an aftermath of such assemblies, and petitioner has manifested that it has no means of preventing such disorders;

That, consequently, every time that such assemblies are announced, the community is placed in such a state of fear and tension that offices are closed early and employees dismissed storefronts boarded up, classes suspended, and transportation disrupted to the general detriment of the public.

Riding on the crest of student unrest, the Communist rebellion gained momentum. As the Court noted in Lansang vs. Garcia,40

[T]he reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted people's war, aimed at the paralyzation of the will to resist of the government, of the political, economic and intellectual leadership, and of the people themselves; that conformably to such concept the Party has placed special emphasis upon most extensive and intensive program of subversion by the establishment of front organizations in urban centers, the organization of armed city partisans and the infiltration in student groups, labor unions, and farmer and professional groups; that the CPP has managed to infiltrate or establish and control nine (9) major labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka (MASAKA) the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM), and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP); that, as of August, 1971, the KM had two hundred forty-five (245) operational chapters throughout the Philippines, of which seventy-three (73) were in the Greater Manila Area, sixty (60) in Northern Luzon, forty-nine (49) in Central Luzon, forty-two (42) in the Visayas and twenty-one (21) in Mindanao and Sulu; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three i33) ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these actions were organized, coordinated or led by the aforementioned front organizations; that the violent demonstrations were generally instigated by a small, but well-trained group of armed agitators; that the number of demonstrations heretofore staked in 1971 has already exceeded those in 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen (15) persons and the injury of many more.

The mounting level of violence necessitated the suspension, for the second time, of the privilege of the writ of habeas corpus on August 21, 1971. The Government's action was questioned in Lansang vs. Garcia. This Court found that the intensification and spread of Communist insurgency imperiled the state. The events after the suspension of the privilege of the writ confirmed the alarming extent of the danger to public safety:

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

It should, also, be noted that adherents of the CPP and its front organization are accordingly to intelligence findings, definitely capable of preparing powerful explosives out of locally available materials; that the bomb used in the Constitutional Convention Hall was a 'clay more' mine, a powerful explosive device used by the U.S. Arm believed to have been one of many pilfered from the Subic Naval Base a few days before; that the President had received intelligence information to the effect that there was a July-August Plan involving a wave of assassinations, kidnappings, terrorism and miss destruction of property and that an extraordinary occurrence would signal the beginning of said event; that the rather serious condition of peace and order in Mindanao, particularly in Cotabato and Lanao, demanded the presence therein of forces sufficient to cope with the situation; that a sizeable part of our armed forces discharges other functions; and that the expansion of the CPP activities from Central Luzon to other parts of the country particularly Manila and its suburbs the Cagayan Valley, Ifugao, Zambales, Laguna, Quezon and Bicol Region, required that the rest of our armed forces be spread thin over a wide area.41

By virtue of these findings, the Court, led by Chief Justice Roberto Concepcion, unanimously upheld the suspension of the privilege of the writ of habeas corpus. The Court said:

Considering that the President was in possession of the above data — except those related to events that happened after August 21, 1971 — when the Plaza Miranda prompting, took place, the Court is not prepared to held that the Executive had acted arbitrarily or gravely abused his discretion when he then concluded that public safety and national security required the suspension of the privilege of the writ, particularly if the NPA were to strike simultaneously with violent demonstrations staged by the two hundred forty-five (245) KM chapters, all over the Philippines, with the assistance and cooperation of the dozens of CPP front organizations, and the bombing of water mains and conduits, as well as electric power plants and installations — a possibility which, no matter how remote, he was bound to forestall, and a danger he was under obligation to anticipate and at rest.

He had consulted his advisers and sought their views. He had reason to feel that the situation was critical — as, indeed, it was — and demanded immediate action. This he took believing in good faith that public safety required it. And, in the light of the circumstances adverted to above, he had substantial grounds to entertain such belief."42

The suspension of the privilege of the writ was lifted on January 7, 1972, but soon thereafter chaos engulfed the nation again. A large area of the country was in open rebellion. The authority of the Government was frontally challenged by a coalition of forces. It was against this backdrop of violence and anarchy that martial law was proclaimed on September 21, 1972.

Personally I take notice of this condition, in addition to what the Court has found in cases that have come to it for decision, and there is no cogent reason for me to say as a matter of law that the President exceeded his powers in declaring martial law. Nor do I believe that the Solicitor General's manifestation of May 13, 1974 to the effect that while on the whole the military challenge to the Republic has been overcome there are still large areas of conflict which warrant the continued imposition of law, can be satisfactorily controverted by or by any perceptive observer of the national scene.

As I will point out in this opinion, the fact that courts are open be accepted as proof that the rebellion and which compellingly called for the declaration of martial law, no longer imperil the public safety. Nor are the many surface indicia adverted to by the petitioners (the increase in the number of tourists, the choice of Manila as the conferences and of an international beauty contest) to be regarded as evidence that the threat to public safe has abated. There is actual armed combat, attended by the somber panoply war, raging in Sulu and Cotabato, not to not mention the region and Cagayan Valley.43I am hard put to say, therefore, that the Government's claim is baseless.

I am not insensitive to the plea made here in the name of individual liberty. But to paraphrase Ex parte Moyer,44if it were the liberty alone of the petitioner Diokno that is. in issue we would probably resolve the doubt in his favor and grant his application. But the Solicitor General, who must be deemed to represent the President and the Executive Department in this case,45has manifested that in the President's judgment peace and tranquility cannot be speedily restored in the country unless the petitioners and others like them meantime remain in military custody. For, indeed, the central matter involved is not merely the liberty of isolated individuals, but the collective peace, tranquility and security of the entire nation. V.

The 1935 Constitution committed to the President the determination of the public exigency or exigencies requiring the proclamation of martial law. It provided in article VII, section 10(2) that —

The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence,46invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or eminent 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.47

In the 1934 Constitutional Convention it was proposed to vest the power to suspend the privilege of the writ of habeas corpus in the National Assembly. The proposal, sponsored by Delegate Araneta, would give this power to the President only in cases where the Assembly was not in session and then only with the consent of the Supreme Court. But the majority of the delegates entertained the fear that the Government would be powerless in the face of danger.48They rejected the Araneta proposal and adopted instead the provisions of the Jones Law of 1916. The framers of the Constitution realized the need for a strong Executive, and therefore chose to retain the provisions of the former organic acts,49which, adapted to the exigencies of colonial administration , naturally made the Governor General a strong Executive.

Construing a similar provision of the Philippine Bill of 1902 which authorized the Governor General, with the approval of the Philippine Commission, to suspend the privilege of the writ of habeas corpus "when in cases of rebellion, insurrection, or invasion the public safety may require it," this Court held that the Governor General's finding as to the necessity for such action was "conclusive and final" on the judicial department.50This ruling was affirmed in 1952 in Montenegro vs. Castañeda,51this Court stating that —

the authority to decide whether the exigency has arisen requiring, the suspension belongs to the President and 'his decision is final and conclusive' upon the courts and upon all other persons.

It is true that in Lansang vs. Garcia 52there is language that appears to detract from the uniform course of judicial construction of the Commander-in-Chief Clause. But a close reading of the opinion in that case shows that in the main there was adherence to precedents. To be sure, the Court there asserted the power to inquire into the "existence of the factual bases [for the suspension of the privilege of the writ of habeas corpus] in order to determine the sufficiency thereof," But this broad assertion of power is qualified by the Court's unambiguous statement that "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." For this reason this Court announced that the test was not whether the President acted correctly but whether he acted arbitrarily. In fact this Court read Barcelon and Montenegro as authorizing judicial inquiry into "whether or not there really was a rebellion, as stated in the proclamation therein contested."

Of course the judicial department can determine the existence of the conditions for the exercise of the President's powers and is not bound by the recitals of his proclamation. But whether in the circumstances obtaining public safety requires the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law is initially for the President to decide. Considerations of commitment of the power to the executive branch of the Government and the lack of accepted standards for dealing with incommensurable factors, suggest the wisdom of considering the President's finding as to necessity persuasive upon the courts. This conclusion results from the nature of the power vested in the President and from the evident object contemplated. For that power is intended to enable the Government to cope with sudden emergencies and meet great occasions of state under circumstances that may be crucial to the life of the nation.53

The fact that courts are open and in the unobstructed discharge of their functions is pointed to as proof of the absence of any justification for martial law. The ruling in Milligan 54and Duncan 55is invoked. In both cases the U.S. Supreme Court reversed convictions by military commissions. In Milligan the Court stated that "martial law cannot arise from a threatened invasion. The necessity must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration." In Duncan a similar expression was made: "The phrase 'martial law' ... while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the Islands against actual or threatened rebellion or invasion, was not intended to authorize the supplanting of courts by military tribunals."

But Milligan and Duncan were decided on the basis of a widely disparate constitutional provision. What is more, to the extent that they may be regarded as embodying what the petitioners call an "open court" theory, they are of doubtful applicability in the context of present-day subversion.

Unlike the detailed provision of our Constitution, the U.S. Federal Constitution does not explicitly authorize the U.S. President to proclaim martial law. It simply states in its article II, section 2 that "the President shall be Commander-in-Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. ..." On the other hand, our Constitution authorizes the proclamation of martial law in cases not only of actual invasion, insurrection or rebellion but also of "imminent danger" thereof.

It is true that in Duncan the U.S. Supreme Court dealt with a U.S. statute that in terms was similar to the Philippine Constitution. Section 67 of the Hawaiian Organic Act provided that "[the Territorial Governor] may, in case of invasion, or imminent danger thereof, when public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Territory, or any part thereof under martial law until communication can be had with the President [of the United States] and his decision thereof made known." In fact the Hawaiian Organic Act, that of Puerto Rico, and the Jones law of 1916, from which latter law, as I have earlier noted, the Commander-in-Chief Clause of our Constitution was adopted, were part of the legislation of the U.S. Congress during the colonial period. But again, unlike the Jones Law, the Hawaiian Organic Act also provided in its section 5 that the U.S. Federal Constitution "shall have the same force and effect in the territory [of Hawaii] as elsewhere in the United States. For this reason it was held in Duncan that "imminent danger" of invasion or rebellion was not a ground for authorizing the trial of civilians by a military tribunal. Had Duncan been decided solely on the basis of section 67 of the Hawaiian Organic Act and had the petitioners in that case been tried for offenses connected with the prosecution of the war,56the prison sentences imposed by the military tribunals would in all probability had been upheld. As a matter of fact those who argued in Duncan that the power of the Hawaiian governor to proclaim martial law comprehended not only actual rebellion or invasion but also "imminent danger thereof" were faced with the problem of reconciling, the two parts of the Hawaiian Organic Act. They contended that "if any paint of section 67 would otherwise be unconstitutional section 5 must be construed as extending the [U.S.] Constitution to Hawaii subject to the qualifications or limitations contained in section 67."57

Forsooth, if the power to proclaim martial law is at all recognized in American federal constitutional law, it is only by implication from the necessity of self-preservation and then subject to the narrowest possible construction.

Nor is there any State Constitution in the United States, as the appended list indicates (see Appendix), which in scope and explicitness can compare with the Commander-in-Chief Clause of our Constitution. The Alaska Constitution, for example, authorizes the governor to proclaim martial law when the public safety requires it in case of rebellion or actual or imminent invasion. But even then it also provides that martial law shall not last longer than twenty days unless approved by a majority of the legislature in joint session. On the other hand, the present Constitution of Hawaii does not grant to the State governor the power to suspend the writ of habeas corpus or to proclaim martial law as did its Organic Act before its admission as a State to the American Union.

An uncritical reading of Milligan and Duncan is likely to overlook these crucial differences in textual concepts between the Philippine Constitution, on the one hand, and the Federal and State Constitutions of the United States, on the other. In our case then the inclusion of the "imminent danger" phrase as a ground for the suspension of the privilege of the writ of habeas corpus and for the proclamation of martial law was a matter of deliberate choice and renders the language of Milligan ("martial law cannot arise from a threatened invasion") inapposite and therefore inapplicable.

The Philippine Bill of 1902 provided in its section 2, paragraph 7 —

that the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor General with the approval of the Philippine Commission, wherever during such period the necessity for such suspension shall exist.

The Jones Law of 1916 substantially reenacted this provision. Thus section 3, paragraph 7 thereof provided:

That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President or by the Governor General, wherever during such period the necessity for such suspension shall exist.

In addition, the Jones Law provided in its section 21 that —

... [The Governor General] may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privileges of the writ of habeas corpus or place the Islands, or any part thereof, under martial law: Provided That whenever the Governor General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power to modify or vacate the action of the Governor General.

Note that with respect to the suspension of the privilege of the writ of habeas corpus, section 21 mentions, as ground therefor, "imminent danger" of invasion or rebellion. When the Constitution was drafted in 1934, its framers, as I have already noted, decided to adopt these provisions of the Jones Law. What was section 3, paragraph 7, in the Jones Law became section 1(14) of article III (Bill of Rights) of the Constitution; and what was section 21 became article VII, section 10(2) (Commander-in-Chief Clause). Thus, the Bill of Rights provision reads:

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.

On the other hand, the Commander-in-Chief Clause states:

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

The attention of the 1934 Convention was drawn to the apparent inconsistency between the Bill of Rights provision and the Commander-in-Chief Clause. Some delegates tried to harmonize the two provisions by inserting the phrase "imminent danger thereof" in the Bill of Rights provision, but on reconsideration the Convention deleted the phrase from the draft of the Bill of Rights provision, at the same time retaining it in the Commander-in Chief Clause.

When this apparent inconsistency was raised in a suit58questioning the validity of President Quirino suspension of the privilege of the writ of habeas corpus, this Court sustained the President's power to suspend the privilege of the writ even on the ground of imminent danger of invasion, insurrection or rebellion. It held that as the Commander-in-Chief Clause was last in the order of time and local position it should be deemed controlling. This rationalization has evoked the criticism that the Constitution was approved as a whole and not in parts, but in result the decision in that case is certainly consistent with the conception of a strong Executive to which the 1934 Constitutional Convention was committed.

The 1973 Constitution likewise authorizes the suspension of the privilege of the writ of habeas corpus on the ground of imminent danger of invasion, insurrection and rebellion.

The so-called "open court" theory does not apply to the Philippine situation because our 1935 and 1973 Constitutions expressly authorize the declaration of martial law even where the danger to public safety arises merely from the imminence of invasion, insurrection, or rebellion. Moreover, the theory is too simplistic for our day, what with the universally recognized insidious nature of Communist subversion and its covert operations.

Indeed the theory has been dismissed as unrealistic by perceptive students of Presidential powers.

Charles Fairman says:

These measures are unprecedented but so is the danger that called them into being. Of course we are not without law, even in time of crisis. Yet the cases to which one is cited in the digests disclose such confusion of doctrine as to perplex a lawyer who suddenly tries to find his bearings. Hasty recollection of Ex parte Milligan recalls the dictum that 'Martial rule cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.' Not even the aerial attack upon Pearl Harbor closed the courts or of its own force deposed the civil administration; yet it would be the common understanding of men that those agencies which are charged with the national defense surely must have authority to take on the spot some measures which in normal times would be ultra vires. And whilst college sophomores are taught that the case stands as a constitutional landmark, the hard fact is that of late governors have frequently declared 'martial law' and 'war' and have been judicially sustained in their measures. Undoubtedly, many of these cases involving the suspension of strikers went much too far. But just as certainly — so it will be argued here — the doctrine of the majority in Ex parte Milligan does not go far enough to meet the conditions of modern war.59

Clinton Rossiter writes:

It is simply not true that 'martial law cannot arise from a threatened invasion,' or that martial rule can never exist where the courts are open.' These statements do not present an accurate definition of the allowable limits of the martial powers of the President and Congress in the face of alien threats of internal disorder. Nor was Davis' dictum on the specific power of Congress in this matter any more accurate. And, however eloquent quotable his words on the untouchability of the Constitution in time of actual crisis, and did not then, express the realities of American constitutional law.60

William Winthrop makes these thoughtful observations:

It has been declared by the Supreme Court in Ex parte Milligan that martial law' is confined to the locality of actual war,' and also that it 'can never exist when the courts are open and in the proper and unobstructed exercise of their jurisdiction.' But this ruling was made by a bare majority — five — of the court, at a time of great political excitement and the opinion of the four other members, as delivered by the Chief Justice, was to the effect that martial law is not necessarily limited to time of war, but may be exercised at other periods of 'public danger,' and that the fact that the civil courts are open is not controlling against such exercise, since they 'might be open and undisturbed in the execution of their functions and yet wholly incompetent to avert threatened danger or to punish with adequate promptitude and certainty the guilty.' It is the opinion of the author that the of the view of the minority of the court is the sounder and more reasonable one, and that the dictum of the majority was influenced by a confusing of martial law proper with that military government which exists only at a time and on the theater of war, and which was clearly distinguished from martial law by the Chief Justice in the dissenting opinion — the first complete judicial definition of the subject.61(emphasis supplied)

In Queen vs. Bekker (on the occasion of the Boer War) Justice Maasdorp categorically affirmed that "the existence of civil courts is no proof that martial law has become unnecessary.62

VI

Given then the validity of the proclamation of martial law, the arrest and detention of those reasonably believed to be engaged in the disorder or in formenting it is well nigh beyond questioning. Negate the power to make such arrest and detention, and martial law would be "mere parade, and rather encourage attack than repel it."63Thus, in Moyer vs. Peabody,64the Court sustained the authority of a State governor to hold temporarily in custody one whom he believed to be engaged in formenting trouble, and denied recovery against the governor for the imprisonment. It was said that, as the governor "may kill persons who resist," he may use the milder measure of seizing the bodies of those whom he considers 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 no reasonable ground for his belief."

It is true that in Sterling vs. Contantin 65the same Court set aside the action of a State governor taken under martial law. But the decision in that case rested on the ground that the action set aside had no direct relation to the quelling of the uprising. There the governor of Texas issued a proclamation stating that certain counties were in a state of insurrection and declaring martial law in that territory. The proclamation recited that there was an organized group of oil and gas producers in insurrection against conservation laws of the State and that this condition had brought such a state of public feeling that if the State government could not protect the public's interest they would take the law into their own hands. The proclamation further recited that it was necessary that the Railroad Commission be given time to make orders regarding oil production. When the Commission issued an order limiting oil production, the complainants brought suit iii the District Court which issued restraining orders, whereupon Governor Sterling ordered General Wolters of the Texas National Guards to enforce a limit on oil production. It was this order of the State governor that the District Court enjoined. On appeal the U.S. Supreme Court affirmed. After assuming that the governor had the power to declare martial law, the Court held that the order restricting oil production was not justified by the exigencies of the situation.

... Fundamentally, the question here is not the power of the governor to proclaim that a state of insurrection, or tumult or riot, or breach of the peace exists, and that it is necessary to call military force to the aid of the civil power. Nor does the question relate to the quelling of disturbance and the overcoming of unlawful resistance to civil authority. The question before us is simply with respect to the Governor's attempt to regulate by executive order the lawful use of complainants' properties in the production of oil. Instead of affording them protection in the exercise of their rights as determined by the courts, he sought, by his executive orders, to make that exercise impossible.

On the other hand, what is involved here is the validity of the detention order under which the petitioners were ordered arrested. Such order is, as I have already stated, a valid incident of martial law. With respect to such question Constantin held that "measures, conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the Executive in the exercise of his authority to maintain peace."

In the cases at bar, the respondents have justified the arrest and detention of the petitioners on the ground of reasonable belief in their complicity in the rebellion and insurrection. Except Diokno and Aquino, all the petitioners have been released from custody, although subject to defined restrictions regarding personal movement and expression of views. As the danger to public safety has not abated, I cannot say that the continued detention of Diokno and Aquino and the restrictions on the personal freedoms of the other petitioners are arbitrary, just as I am not prepared to say that the continued imposition of martial rule is unjustified.

As the Colorado Supreme Court stated in denying the writ of habeas corpus in Moyer:66

His arrest and detention in such circumstances are merely to prevent him from taking part or aiding in a continuation of the conditions which the governor, in the discharge of his official duties and in the exercise of the authority conferred by law, is endeavoring to suppress.

VII

While courts may inquire into or take judicial notice of the existence of conditions claimed to justify the exercise of the power to declare martial law,67the determination of the necessity for the exercise of such power is within the periphery of the constitutional domain of the President; and as long as the measures he takes are reasonably related to the occasion involved, interference by the courts is officious.

I am confirmed in this construction of Presidential powers by the consensus of the 1971 Constitutional Convention to strengthen the concept of a strong Executive and by the confirmation of the validity of acts taken or done after the proclamation of martial law in this country. The 1973 Constitution expressly authorizes the suspension of the privilege of the writ of habeas corpus as well as the imposition of martial law not only on the occasion of actual invasion, insurrection or rebellion, but also where the danger thereof is imminent. 68 Acrimonious discussion on this matter has thus become pointless and should therefore cease.

The new Constitution as well provides that —

All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly aid explicitly modified or repealed by the regular National Assembly.69

The effectivity of the new Constitution is now beyond all manner of debate in view of the Court's decision in the Ratification Cases 70 as well as the demonstrated acquiescence therein by the Filipino people in the historic July 1973 national referendum.

VIII

It is thus evident that suspension of the privilege of the writ of habeas corpus is unavoidable subsumed in a declaration of martial law, since one basic objective of martial rule is to neutralize effectively — by arrest and continued detention (and possibly trial at the proper and opportune time) — those who are reasonably believed to be in complicity or are particeps criminis in the insurrection or rebellion. That this is so and should be so is ineluctable to deny this postulate is to negate the very fundamental of martial law: the preservation of society and the survival of the state. To recognize the imperativeness and reality of martial law and at the same time dissipate its efficacy by withdrawing from its ambit the suspension of the privilege of the writ of habeas corpus is a proposition I regard as fatuous and therefore repudiate.

Invasion and insurrection, both of them conditions of violence, are the factual prerequisites of martial law ... The rights of person and property present no obstruction to the authorities acting under such a regime, if the acts which encroach upon them are necessary to the preservation or restoration of public order and safety. Princeps et res publica ex justa causa possunt rem meam auferre. All the procedures which are recognized adjuncts of executive crisis government ... are open to the persons who bear official authority under martial law. The government may wield arbitrary powers of police to allay disorder, arrest and detain without trial all citizens taking part in this disorder and even punish them (in other words, suspend the [privilege of the] writ of habeas corpus), institute searches and seizures without warrant, forbid public assemblies, set curfew hours, suppress all freedom of expression, institute courts martial for the summary trial of crimes perpetrated in the course of this regime and calculated to defeat its purposes ...71(emphasis supplied)

The point here is whether martial law is simply a shorthand expression denoting the suspension of the writ, or whether martial law involves not only the suspension of the writ but much more besides. ... The latter view is probably sounder because martial law certainly in the present state of its development, is not at all dependent on a suspension of the writ of habeas corpus. ... Where there has been violence or disorder in fact, continued detention of offenders by the military is so far proper as to result in a denial by the courts of writs releasing those detained. ...72

IX.

Although the respondents, in their returns to the writs and in their answers to the several petitions, have insisted on a disclaimer of the jurisdiction of this Court, on the basis of General Orders Nos. 3 and 3-A,73their subsequent manifestations urging decision of these cases amount to an abandonment of this defense. In point of fact President Marco has written, in unmistakable phrase, that "Our martial law is unique in that it is based on the supremacy of the civilian authority over the military and on complete submission of the decision of the Supreme Court. ... For who is the dictator who would submit himself to a higher body like the Supreme Court on the question of the constitutionality or validity of his actions?"74Construing this avowal of the President and the repeated urgings of the respondents in the light of the abovequoted provision of the 1973 Constitution (Art. XVII, sec. 3(2)), it is my submission that General Orders Nos. 3 and 3-A must be deemed revoked in so far as they tended to oust the judiciary of jurisdiction over cases involving the constitutionality of proclamations, decrees, orders or acts issued or done by the President.

X

In sum and substance, I firmly adhere to these views: (1) that the proclamation of martial law in September 1972 by the President was well within the aegis of the 1935 Constitution; (2) that because the Communist rebellion had not abated and instead the evil ferment of subversion had proliferated throughout the archipelago and in many places had exploded into the roar of armed and searing conflict with all the sophisticated panoply of war, the imposition of martial law was an "imperative of national survival;" (3) that the arrest and detention of persons who were "participants or gave aid and comfort in the conspiracy to seize political and state power and to take over the government by force," were not unconstitutional nor arbitrary; (4) that subsumed in the declaration of martial law is the suspension of the privilege of the writ of habeas corpus; (5) that the fact that the regular courts of justice are open cannot be accepted as proof that the rebellion. and insurrection, which compellingly called for the declaration of martial law, no longer imperil the public safety; (6) that actual armed combat has been and still is raging in Cotabato, Lanao, Sulu and Zamboanga, not to mention the Bicol Region and Cagayan Valley, and nationwide Communist subversion continues unabated; (7) that the host of doubts that had plagued this Court with respect to the validity of the ratification and consequent effectivity of the 1973 Constitution has been completely dispelled by every rational evaluation of the national referendum of July 1973, at which the people conclusively albeit quietly, demonstrated nationwide acquiescence in. the new Constitution; and (8) that the issue of the validity and constitutionality of the arrest and detention of all the petitioners and of the restrictions imposed upon those who were subsequently freed, is now foreclosed by the transitory provision of the 1973 Constitution (Art, XVII. Sec. 3(2)) which efficaciously validates all acts made, done or taken by the President, or by others upon his instructions, under the regime of martial law, prior to the ratification of the said Constitution.

XI

It is not a mere surreal suspicion on the part of the petitioner Diokno that the incumbent members of this highest Tribunal of the land have removed themselves from a level of conscience to pass judgment upon his petition for habeas corpus or afford him relief from his predicament. He has actually articulated it as a formal indictment. I venture to say that his obsessional preoccupation on the ability of this Court to reach a fair judgment in relation to him has been, in no small measure, engendered by his melancholy and bitter and even perhaps traumatic detention. And even as he makes this serious indictment, he at the same time would withdraw his petition for habeas corpus — hoping thereby to achieve martyrdom, albeit dubious and amorphous. As a commentary on this indictment, I here that for my part — and I am persuaded that all the other members of this Court are situated similarly — I avow fealt to the full intendment and meaning of the oath I have taken as a judicial magistrate. Utilizing the modest endowments that God has granted me, I have endeavored in the past eighteen years of my judicial career — and in the future will always endeavor — to discharge faithfully the responsibilities appurtenant to my high office, never fearing, wavering or hesitating to reach judgments that accord with my conscience.

ACCORDINGLY, I vote to dismiss all the petitions.

APPENDIX to Separate Opinion of
Justice Fred Ruiz Castro

STATE CONSTITUTIONAL PROVISIONS
REGARDING MARTIAL LAW

ALASKA CONST., art. III, sec. 20:

Sec. 20. Martial Law. The governor may proclaim martial law when the public safety requires it in case of rebellion or actual or imminent invasion. Martial law shall not continue for longer than twenty days without the approval of a majority of the members of the legislature in joint session.

MAINE CONST., art. I, sec. 14:

Sec. 14. Corporal punishment under military law. No person shall be subject to corporal punishment under military law, except such as are employed in the army or navy, or in the militia when in actual service in time of war or public danger.

MARYLAND CONST., art. 32:

Art. 32. Martial Law. That no person except regular soldiers, marines, and mariners in the service of this State, or militia, when in actual service, ought in any case, to be subject to, or punishable by Martial Law.

MASSACHUSETTS CONST., art. XXVIII:

Art. XXVIII. Citizens exempt from law martial. No person can in any case be subjected to law martial, or to any penalties or pains, by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.

NEW HAMPSHIRE, Pt II, arts. 34 and 51:

Art. 34th. Martial law limited. No person can, in any case, be subjected to law martial, or to any pains or penalties by virtue of that law, except those employed in the army or navy, and except the militia in actual service, but by authority of the legislature.

Art. 51st. Powers and duties of governor as commander-in-chief; limitation. The governor of this state for the time being. shall be commander-in-chief of the army and navy, and all the military forces of the state by sea and land; and shall have full power by himself, or by any chief commander, or other officer, or officers, from time to time, to train, instruct, exercise and govern the militia and navy; and for the special defense and safety of this state, to assemble in martial array, and put in war-like posture, the inhabitants thereof, and to lead and conduct them, and with them to encounter, repulse, repel resist and pursue by force of arms, as well by sea as by land, within and without the limits of this state: and also kill, slay. destroy, if necessary, and conquer by all fitting ways, enterprise and means, all and every such person and persons as shall, at any time hereafter, in a hostile manner, attempt or enterprise the destruction, invasion, detriment or annoyance of this state; and to use and exercise over the army and navy, and over the militia in actual service, the law martial in time of war invasion, and also in rebellion, declared by the legislature to exist, as occasion shall necessarily require: And surprise, by all ways and means whatsoever, all and every such person or persons, with their ships, arms, ammunition, and other goods, as shall in a hostile manner invade, or attempt the invading, conquering or annoying this state; and in fine the governor hereby is entrusted with all other powers incident to the office of the captain-general and commander-in-chief, and admiral, to be exercised agreeably to the rules and regulations of the constitution, and the laws of the land; provided, that the Governor shall not, at any time hereafter, by virtue of any power by this constitution granted, or hereafter to be granted to him by the legislature, transport any of the inhabitants of this state, or oblige them to march out of the limits of the same, without their free and voluntary consent, or the consent of the general court, nor grant commissions for exercising the law martial in any case, without the advise and the consent of the council.

RHODE ISLAND CONST., art. I, sec. 18: .

Sec. 18. Military subordinate; martial law. The military shall be held in strict subordination to the civil authority. And the law martial shall be used and exercised in such cases only as occasion shall necessarily require.

TENNESSEE CONST., art. 1, sec. 25:

Sec. 25. Punishment under martial and military law. That no citizen of this State, except such as are employed in the army of the United States, or militia in actual service, shall be subjected to punishment under the martial or military law. That martial law, in the sense of the unrestricted power of military officers, or others, to dispose of the persons, liberties or property of the citizen, is inconsistent with the principles of free government, and is not confided to any department of the government of this State.

VERMONT CONST., ch. 1, art. 17:

Art. 17th. Martial law restricted. That no person in this state can in any case be subjected to law martial, or to any penalties or pains by virtue of that law except those employed in the army and the militia in actual service.

WEST VIRGINIA, art, III, sec. 12:

Art. III, sec. 12. Military subordinate to civil power. Standing armies, in time of peace, should be avoided as dangerous to liberty. The military shall be subordinate to the civil power; and no citizen, unless engaged in the military service of the State, shall be tried or punished by any military court, for any offense that is cognizable by the civil courts of the State. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, except in the manner to be prescribed by law. .

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Footnotes

1 The following individuals, on their own motions, were allowed to withdraw their petitions: Veronica L. Yuyitung (Supreme Court Res. Oct. 6, 1972) and Tan Chin Hian (Res. Oct. 11, 1972) in L-35556; Amando Doronila, Hernando J. Abaya, Ernesto Granada, Luis D. Beltran, Bren Guiao, Ruben Cusipag and Willie Baun (Res. Oct. 3, 1972; Res. Oct. 11, 1972) in L-35567; Teresita M. Guiao in behalf of Bren Guiao (who was also a petitioner in L-35567) (Res. Oct. 9, 1972) in L-35571.

2 The following individuals have since been released from custody: Joaquin P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Renato Constantino and Luis R. Mauricio, all of whom were petitioners in L-35538; Maximo V. Soliven, Napoleon G. Rama and Jose Mari Velez in L-35540; Ramon Mitra, Jr., Francisco Rodrigo and Napoleon Rama in L-35546; Enrique Voltaire Garcia II (deceased) in L-35547; Tan Chin Hian and Veronica Yuyitung in L-35556; Amando Doronila, Juan L. Mercado, Hernando J. Abaya, Ernesto Granada, Luis D. Beltran, Ruben Cusipag, Roberto Ordoñez, Manuel Almario and Willie Baun in L-35567; Ernesto Rondon in L-35573: and Bren Z. Guiao in L-35571.

3 Javellana vs. Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

4 Chief Justice Makalintal and Associate Justices Zaldivar Castro, Fernando, Teehankee, Barredo, Makasiar, Antonio and Esguerra.

5 See Anno., Public Interest as Ground for Refusal to Dismiss an Appeal where Question has Become Moot or Dismissal is Sought by One or Both Parties. 132 A.L.R. 1185 to 1200; Willis vs. Buchman, 132 A.L.R. 1179; State ex rel. Traub vs. Brown (1938), 197 A 478; Melson vs. Shetterley (1933), 95 Ind. App. 538, 183 NE 802.

6 L-27833, April 18, 1969, 27 SCRA 835.

7 79 Phil. 461 (1947).

8 Cranch 137, 2 L. ed. 60 (1803).

9 Personally, I view this motion as a heretofore unheard-of curiosity. I cannot comprehend Diokno's real motivation, since granting his motion could conceivably result in his indefinite detention.

10 17 Fed. Cas. 144, Case No. 94878 (C.C.D. Md. 1861).

11 4 Wall. 2, 18 L. ed. 281 (1866).

12 35 Colo. 159, 85 Pac. l90 (1904).

13 Moyer vs. Peabody, 212 U.S. 78, 53 L. ed. 410 (1909).

14 327 U.S. 304, 90 L. ed. 688 (1946).

15 146 F. 2d 576 (C.C.A. 9th, 1944).

16 324 U.S. 833, 89 L. ed. 1398 (1945).

17 Supra, note 10.

18 Schubert, The Presidency in the courts, n.54, p. 185 (1957).

19 Supra, note 3.

20 See 14 Encyclopedia Britannica, pp. 984-985 (1945).

21 England has an unwritten constitution, there is not even a baremention of martial law in the Federal and in most of the State constitutions of the United States (see Appendix to this separate opinion), and there is a paucity or complete absence of statutes or codes governing it in the various common-law jurisdictions where it has been instituted.

22 Fairman, The Law of Martial Rule (2nd ed., 1943), pp. 2, 52 and 145.

23 Fairman, Id., pp. 94, 103, 108-109; Walker, Military Law, (1954 ed.), p. 475.

24 Mental, Military Occupation and the Rule of Law (1944 ed.), pp. 9, 24, 27, 31, 42-44.

25 Winthrop, Military Law & Precedents (2nd ed., 1920), p. 799.

26 4 Wallace 2, 18 L. ed. 281 (1866).

27 Winthrop, id., p. 817.

28 Commonwealth Act No. 408 recognizes the eventuality of the declaration of martial law in its Articles of War 2, 37, 82 and 83. The AFP Manual for Courts-Martial defines martial law as "the exercise of military jurisdiction by a government temporarily governing the civil population of a locality through its military forces, without authority of written law, as necessity may require." Martial law, as thus exercisable, is in many respects comparable to the state of siege of the continental nations of Europe.

29 See Manual for Courts-Martial (AFP), p. 1. Willoughby observes that "Where martial law is invoked in the face of invasion, it is war pure and simple, and it is in this sense that Field defines martial law as 'simply military authority, exercised in accordance with the laws and usages of war,' and that the U.S. Supreme Court defines it as 'the law of necessity in the actual presence of war' Upon the actual scene of war, martial law becomes indistinguishable from military government." (Willoughby, The Constitutional Law of the United States, 2nd ed., 1939, vol. 3, pp. 1595-1597).

30 See 45 Mich. Law Review 87.

31 Winthrop, id., p. 820.

32 Luther vs. Borden, 7 How. 1, 12 L. ed. 581, 600 (1849).

33 President Marcos writes: "The compelling necessity [of the imposition of martial law in the Philippines] arises out of the seven grave threats to the existence of the Republic: the communist rebellion, the rightist conspiracy, the Muslim secessionist movement, the rampant corruption on all levels of society the criminal and criminal-political syndicates — including the private armies deteriorating economy and the increasing social justice." (Ferdinand E. Marcos, Notes on the New Society of the Philippines, 98 (1973)).

34 L-33964, Dec. 11, 1971. 42 SCRA 448.

35 People vs. Ferrer L-32613-14, Dec. 27, 1972, 48 SCRA 382, 405:

In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. In 1969 we again found that the objective of the Party was the 'overthrow of the Philippines Government armed struggle and to establish in the Philippines a communist form of government similar to that of Soviet Russia and Red China.' More recently, in Lansang vs. Garcia, we noted the growth of the Communist Party of the Philippines and the organization of Communist fronts among organizations such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After meticulously reviewing the evidence, we said: 'We entertain, therefore, no doubts about the existence of a sizeable group of men who have publicly risen in arms to overthrow the government and have thus been and still are engaged in rebellion against the Government of the Philippines.'

36 People vs. Evangelista, 57 Phil. 375 (1932) (illegal association); People vs, Evangelista, 57 Phil. 354 (1932) (rebellion and sedition): People vs. Capadocia 57 Phil. 364 (1932) (rebellion and sedition); People vs. Evangelista, 57 Phil. 372 (1932) (rebellion and sedition); People vs. Feleo, 57 Phil. 451 (1932) (inciting to sedition); People vs. Nabong, 57 Phil. 455 (1932) (inciting to sedition).

37 People vs. Lava, L-4974, May 16, 1969, 28 SCRA 72 (rebellion): People vs. Hernandez, L-6025, May 30, 1964, 11 SCRA 223 (rebellion); Lava vs. Gonzales, L-23048, July 31, 1964, 11 SCRA 650 (rebellion); People vs. Capadocia L-4907, June 29, 1963, 8 SCRA 301 (rebellion).

38 Montenegro vs. Castañeda, 91 Phil. 882 (1952).

39 L-31687, Feb. 26, 1970, 31 SCRA 730 (with Castro and Fernando, JJ. dissenting).

40 Supra. note 19.

41 Id. at 485-486.

42 Id., at 48-487.

43 The Times Journal, Bulletin Today and Daily Express, on Wednesday, August 28, 1974, carried news of a nationwide arms-smuggling network being operated by the Communist Party of the Philippines in collaboration with a foreign-based source. The Department of National Defense reported that several arms-smuggling vessels had been seized, that the network had acquired several trucking services for its illegal purposes, and that about P2 million had not so far been expended for this operation by a foreign source. The Department stressed that "the clandestine network is still operating with strong indications that several arms landings have already been made." The Department also revealed that the military has launched necessary counter-measures in order to dismantle in due time this extensive anti-government operation." The Department finally confirmed the arrest of 38 subversives, including the following 13 persons who occupy important positions in the hierarchy of the Communist movement in the Philippines: Manuel Chiongson Fidel V. Agcaoili, Danilo Vizmanos, Dante Simbulan, Andy Perez, Norman Quimpo, Fernando Tayag, Bonifacio P. Ilagan, Jose F. Lacaba, Domingo M. Luneta, Mila Garcia, Ricardo Ferrer and Dolores Feria.

The Times Journal, Bulletin Today and Daily Express, on Thursday, August 29, 1974, carried the news that a secret arm of the Communist Party of the Philippines engaged exclusively in the manufacture of explosives for sabotage and other anti-government operations have been uncovered by the military, following a series of raids by government security agents on underground houses, two of which are business establishments providing funds for the purchase of chemicals and other raw materials for the manufacture of explosives. The documents seized in the raids indicated that the "explosives movement" was a separate subversive group organized in early 1972 under the direct supervision of the CPP military arm and was composed of elite members knowledgeable in explosives and chemical research.

The Times Journal, Bulletin Today and Daily Express, on Sunday, September 1, 1974, carried news of a nationwide "communist insurgent conspiracy" to "unite all groups opposing the New Society, arm them and urge them to fight and overthrow the government, and establish a coalition government under the leadership of the Communist Party of the Philippines." According to documents seized by the military, "local communists and other insurgents stepped up efforts in mid-1973 to set up a so-called National Democratic Front." The Department of National Defense revealed that the armed forces are continuing military operations in Cotabato, Lanao, Sulu and Zamboanga.

44 35 Colo. 154, 91 Pac. 738, 740 (1905).

45 WHO vs. Aquino, L-35131, Nov. 29, 1972, 48 SCRA 242.

46 Willoughby calls this situation "martial law in sensu strictiore." (Willoughby, The Constitutional Law of the United States, 2nd ed., 1939, Vol. 3, pp. 1586 and 1595).

47 The corresponding provision in the 1973 Constitution is art. IX, sec. 12.

48 See 5 Laurel Proceedings of the Philippine Constitutional Convention, 249-259 (1966).49 President Jose P. Laurel, in a speech on the draft of the 1935 constitution, gave as reasons for the adoption of the Commander-in-Chief Clause (a) the desire of the members of the 1934 Constitutional Convention to afford the state with an effective means for self-defense (the experience of the Latin-American countries was an object lesson for the Convention), and (b) the sense of the Convention that the executive power should be made stronger (Malcolm and Laurel, Philippine constitutional Law, p. 200, footnote no. 4).

50 Barcelon vs. Baker, 5 Phil. 87 (1905).

51 91 Phil. 982 (1952).

52 L- 33964, Dec. 11, 1971, 42 SCRA 448.

53 Sterling vs. Constantin 287 U.S. 378, 77 L. ed. 375 (1932); Martin vs. Mott, 12 Wheat, 19, 6 L. ed. 537 (1827); Luther vs, Borden, 7 How. 1, 12 L. ed. 581 (1849); Moyer vs. Peabody, 212 U.S. 7.8, 53 L. ed. 410 (1809).

54 4 Wall. 2, 18 L. ed. 281 (1866).

55 327 U.S. 304, 90 L. ed. 688 (1946).

56 White was convicted of embezzlement, while Duncan was convicted of brawling.

57 King, The Legality of Martial Law in Hawaii, 30 California L. Rev. 599, 627 (1942).

58 Montenegro vs. Castañeda, 91 Phil. 882 (1952).

59 Fairman, The Law of Martial Rule and the National Emergency, 55 Harv. L. Rev. 1253-1254 (1942).

60 Rossiter, The supreme Court and Commander-in-Chief, 36 (1951).

61 Winthrop, id., p. 817; see also Elphinstone vs. Bedreechund, I Knap. P.C. 316; D.F. Marais vs. The General Officer Commanding the Lines of Communication of the Colony (i.e., the Cape of Good Hope), 1902 Appeal Cases 109; 14 Encyclopedia Britannica, p. 977 (1969): 14 Encyclopedia Britannica, p. 985 (1955).

62 17 Sup. Ct. Rep., Cape of Good Hope, 340 (1900), cited by Charles Fairman in The Law of Martial Rule, Chapter 10.

63 Luther vs. Borden, 7 How. 1, 12 L. ed. 581, 600 (1849).

64 212 U.S. 78, 53 L. ed. 410 (1909).

65 287 U.S. 378, 77 L. ed. 375 (1932).

66 35 Colo. 159, 85 Pac. 190 (1904).

67 "The proclamation [of martial law] is a declaration of an existent fact and a warning by the authorities that they have been forced against their will to have recourse to strong means to suppress disorder and restore peace. It has, as Thurman Arnold has written, merely 'emotional effect' and cannot itself make up for the absence of the conditions necessary for the initiation of martial law." (Clinton L. Rossiter, Constitutional Dictatorship (Crisis Government in the Modern Democracies), p. 146 (1948).

68 1973 Const. Art. IV, sec. 15.

69 Id., Art. XVII, sec. 3(2).

70 Javellana vs. Executive Secretary, L-36142, March 31, 1973, 50 SCRA 30.

71 Clinton L. Rossiter, Constitutional Dictatorship (Crisi Government in the Modern Democracies), pp. 145-146 (1948).

72 Frederick B. Wiener A Practical Manual of Martial Law, p. 8.(1940). (See also The Suspension of the privilege of the Writ of Habeas Corpus: Its Justification and Duration by Flerida Ruth Pineda and Augusto Ceasar Espiritu, 22 Philippine Law Journal, No. 1, February 1952, pp. 19, 37).

73 By General Order No. 3 dated September 22, 1972, as amended by General Order No. 3-A of the same date, the President ordered, inter alia, that "the Judiciary shall continue to function in accordance with its present organization and personnel, and shall try and decide in accordance with existing laws all criminal and civil cases, except the following cases: 1. Those involving the validity, legality, or constitutionality of Proclamation No. 1081, dated September 21, 1972, or of any decree, order or acts issued, promulgated or performed by me or by my duly designated representative pursuant thereto."

74 Ferdinand E. Marcos, Notes on the New Society of the Philippines, 99, 100 (1973).

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Separate Opinions

TEEHANKEE, J.:

Prefatory statement: This separate opinion was prepared and scheduled to be promulgated with the judgment of the Court (penned by the Chief Justice) on September 12, 1974. Such promulgation was however overtaken by the welcome news of the release from detention on September 11, 1974 of petitioner Jose W. Diokno upon the order of President Ferdinand E. Marcos, and the Court then resolved to defer promulgation until the following week. Hence, Part I of this opinion dealing with the Diokno petition should be read in such time context.

The two other parts thereof dealing with the Aquino and Rodrigo cases are to be read as of the actual date of promulgation, since they reiterate a main theme of the opinion that the Court should adhere to the well-grounded principle of not ruling on constitutional issues except when necessary in an appropriate case. In the writer's view, the gratifying development in the Diokno case which rendered his petition moot by virtue of his release once more demonstrates the validity of this principle.

I. On the Diokno petition: I vote for the granting of petitioner Jose W. Diokno's motion of December 29, 1973 to withdraw the petition for habeas corpus filed on September 23, 1972 on his behalf and the supplemental petition and motions for immediate release and for oral argument of June 29, 1973 and August 14, 1973 filed in support thereof, as prayed for.

1. The present action is one of habeas corpus and the detainee's own withdrawal of his petition is decisive. If the detainee himself withdraws his petition and no longer wishes this Court to pass upon the legality of his detention and cites the other pending habeas corpus cases which have not been withdrawn and wherein the Court can rule on the constitutional issues if so minded,1such withdrawal of a habeas corpus petition should be granted practically as a matter of absolute right (whatever be the motivations therefor) in the same manner that the withdrawal motions of the petitioners in the other- cases were previously granted by the Court.2

Since there were seven (7) members of the Court who voted for granting the withdrawal motion as against five (5) members who voted for denying the same and rendering a decision,3 submit that this majority of seven (7) out of the Court's membership of twelve (12) is a sufficient majority for granting the withdrawal prayed for. A simple majority of seven is legally sufficient for the granting of a withdrawal of a petition, since it does not involve the rendition of a decision, on the merits. It is only where a decision is to be rendered on the merits by the Court en banc that the 1973 Constitution requires the concurrence of at least eight (8) members.4

I therefore dissent from the majority's adhering to the five-member minority view that the majority of seven members is not legally sufficient for granting withdrawal and that a decision on the merits be rendered notwithstanding the withdrawal of the petition.

2. The granting of the withdrawal of the petition is but in consonance with the fundamental principle on the exercise of judicial power which, in the words of the Solicitor-General, "as Justice Laurel emphasized, is justifiable only as a necessity for the resolution of an actual case and controversy and therefore should be confined to the very lis mota presented."5

Such withdrawal is furthermore in accord with the respondents' stand from the beginning urging the Court not to take cognizance (for want of jurisdiction or as a matter of judicial restraint citing Brandeis' injunction that "The most important thing we decide is what not to decide"6) or that "at the very least, this Court should postpone consideration of this case until the present emergency is over."7

Many of the other petitioners in the habeas corpus cases at bar were granted leave to withdraw their petitions. Petitioner Diokno's withdrawal motion should likewise be granted in line with the well-established doctrine that the Court will not rule on constitutional issues except when necessary in an appropriate case.

3. But the Solicitor-General now objects to the withdrawal on the ground of public interest and that "this Tribunal ... has been used as the open forum for underground propaganda by those who have political axes to grind" with the circulation of the withdrawal motion and that this Court would be "putting the seal of approval" and in effect admit the "unfair, untrue and contemptuous" statements made in the withdrawal motion should this Court grant the withdrawal.8I see no point in the position taken by the Solicitor-General of urging the Court to deny the withdrawal motion only to render a decision that would after all dismiss the petition and sustain respondents' defense of political question and have the Court declare itself without jurisdiction to adjudicate the constitutional issues presented9and asking the Court to embrace the "pragmatic method" of William James which "rejects ... the a priori assumption that there are immutable principles of justice. It tests a proposition by its practical consequences."10The objections are untenable.

The public interest objection is met by the fact that there are still pending. other cases (principally the prohibition case of petitioner Benigno S. Aquino, Jr. in another case, L-37364 questioning the filing of grave charges under the Anti-Subversion Act, etc. against him with a military commission11and which is not yet submitted for decision) where the same constitutional issues may be resolved.

The other objections are tenuous: The Solicitor-General refutes his own objections in his closing statement in his comment that "for their part, respondents are confident that in the end they would be upheld in their defense, as indeed petitioner and counsel have practically confessed judgment in this case."12

The propaganda objection is not a valid ground for denying the withdrawal of the petition and should not be held against petitioner who had nothing whatsoever to do with it. The objection that granting the withdrawal motion would amount to an admission of the "unfair, untrue and contemptuous statements" made therein is untenable since it is patent that granting the withdrawal motion per se (regardless of petitioner's reasons) does not amount to an admission of the truth or validity of such reasons and as conceded by the Solicitor-General, neither will denying the withdrawal motion per se disprove the reasons.13The untruth, unfairness or costumacy of such reasons may best be dealt with, clarified or expounded by the Court and its members in the Court's resolution granting withdrawal or in the separate opinions of the individual Justices (as has actually been done and which the writer will now proceed to do).

4. Petitioner's first reason for withdrawal is subjective. After mentioning various factors, particularly, the fact that five of the six Justices (including the writer) who held in the Ratification cases14that the 1973 Constitution had not been validly ratified had taken on October 29, 1973 an oath to import and defend the new Constitution, he expresses his feeling that "(I) cannot reasonably expect either right or reason, law or justice, to prevail in my case," that "the unusual length of the struggle also indicates that its conscience is losing the battle" and that "since I do not wish to be Ša party to an I adverse decision, I must renounce every possibility of favorable judgment."15A party's subjective evaluation of the Court's action is actually of no moment, for it has always been recognized that this Court, possessed of neither the sword nor the purse, must ultimately and objectively rest its authority on sustained public confidence in the truth, justice, integrity and moral force of its judgments."16

Petitioner's second reason for withdrawal reads: "(S)econd, in view of the new oath that its members have taken, the present Supreme Court is a new Court functioning under a new 'Constitution,' different from the Court and the Constitution under which I applied for my release. I was willing to be judged by the old Court under the old Constitution, but not by the new Court under the new Constitution, ...."17

Petitioner is in error in his assumption that this Court is "new Court functioning under a new Constitution different from the Court and the Constitution under which [he] applied for [his] release." The same Supreme Court has continued save that it now operates under Article X of the 1973 Constitution which inter alia increased its component membership from eleven to fifteen and transferred to it administrative supervision over all courts and personnel thereof with the power of discipline and dismissal over judges of inferior courts, in the same manner that the same Republic of the Philippines (of which the Supreme Court is but a part) has continued in existence but now operates under the 1973 Constitution.18

During the period of ninety days that the Ratification cases were pending before the Court until its dismissal of the cases per its resolution of March 31, 1973 became final on April 17, 1973, the Executive Department was operating under the 1973 Constitution in accordance with President Ferdinand E. Marcos' Proclamation No. 1102 on January 17, 1973 announcing the ratification and corning into effect of the 1973 Constitution while this Court as the only other governmental department continued to operate tinder the 1935 Constitution pending its final resolution on the said cases challenging the validity of Proclamation No. 1102 and enforcement of the new Constitution. (As per the Court resolution of January 23, 1973, it declined to take over from the Department of Justice the administrative supervision over all inferior courts expressing its sense that "it is best that the status quo be maintained until the case aforementioned (Javellana vs. Exec. Secretary) shall have been finally resolved...")

Such a situation could not long endure wherein the only two great departments of government, the Executive and the Judicial,19for a period of three months were operating under two different Constitutions (presidential and parliamentary). When this Court's resolution of dismissal of the Ratification cases by a majority of six to four Justices became final and was entered on April 18, 1973 "with the result that there (were) not enough votes to declare that the new Constitution is not in force,"20the Court and particularly the remaining three dissenting Justices (notwithstanding their vote with three others that the new Constitution had not been validly ratified21had to abide under the Rule of Law by the decision of the majority dismissing the cases brought to enjoin the enforcement by the Executive of the new Constitution and had to operate under it as the fundamental charter of the government, unless they were to turn from legitimate dissent to internecine dissidence for which they have neither the inclination nor the capability.

The Court as the head of the Judicial Department thenceforth assumed the power of administrative supervision over all courts and all other functions and liabilities imposed on it under the new Constitution. Accordingly, this and all other existing inferior courts continue to discharge their judicial function and to hear and determine all pending cases under the old (1935)Constitution22as well as new cases under the new (1973) Constitution with the full support of the members of the Integrated Bar of the Philippines (none of whom has made petitioner's claim that this is a "new Court" different from the "old Court").

A major liability imposed upon all members of the Court and all other officials and employees was that under Article XVII, section 9 of the Transitory Provisions23which was destructive of their tenure and called upon them "to vacate their respective offices upon the appointment and qualification of their successors." Their taking the oath on October 29, 1973 "to preserve and defend the new Constitution" by virtue of their "having been continued in office"24on the occasion of the oath-taking of three new members of the Court25pursuant to Article XV, section 426was meant to assure their "continuity of tenure" by way of the President having exercised the power of replacement under the cited provision and in effect replaced them with themselves as members of the Court with the same order of seniority.27

5. The withdrawal in effect gives cause for judicial abstention and further opportunity (pending submittal for decision of the Aquino prohibition case in L-37364) to ponder and deliberate upon the host of grave and fundamental constitutional questions involved which have thereby been rendered unnecessary to resolve here and now.

In the benchmark case of Lansang vs. Garcia 28when the Court declared that the President did not act arbitrarily in issuing in August, 1971 Proclamation No. 889, as amended, suspending the privilege of the writ of habeas corpus for persons detained for the crimes of insurrection or rebellion and other overt acts committed by them in furtherance thereof, the Court held through then Chief Justice Concepcion that "our next step would have been the following: The Court, or a commissioner designated by it, would have received evidence on whether — as stated in respondents' 'Answer and Return' — said petitioners had been apprehended and detained 'on reasonable belief' that they had 'participated in the crime of insurrection or rebellion.'

(However, since in the interval of two months during the pendency of the case, criminal complaints had been filed in court against the petitioners-detainees (Luzvimindo David, Gary Olivar, et al.), the Court found that "it is best to let said preliminary examination and/or investigation be completed, so that petitioners' release could be ordered by the court of first instance, should it find that there is no probable cause against them, or a warrant for their arrest could be issued should a probable cause be established against them ."29The Court accordingly ordered the trial court "to act with utmost dispatch" in conducting the preliminary investigation for violation of the Anti-Subversion Act and "to issue the corresponding warrants of arrest, if probable cause is found to exist against them, or otherwise, to order their release.")

Can such a procedure for reception of evidence on the controverted allegations concerning the detention as indicated in Lansang be likewise applied to petitioner's case considering his prolonged detention for almost two years now without charges?30It should also be considered that it is conceded that even though the privilege of the writ of habeas corpus has been suspended, it is suspended only as to certain specific crimes and the "answer and return" of the respondents who hold the petitioner under detention is not conclusive upon the courts which may receive evidence and determine as held in Lansang (and as also provided in the Anti-Subversion Act [Republic Act 1700]) whether a petitioner has been in fact apprehended and detained arbitrarily or "on reasonable belief" that he has "participated in the crime of insurrection or rebellion" or other related offenses as may be enumerated in the proclamation suspending the privilege of the writ.

Pertinent to this question is the Court's adoption in Lansang of the doctrine of Sterling vs. Constantin 31enunciated through U.S. Chief Justice Hughes that even when the state has been placed under martial law "... (W)hen there is a substantial showing that the exertion of state power has overridden private rights secured by that Constitution, the subject is necessarily one for judicial inquiry in an appropriate proceeding directed against the individuals charged with the transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so extending, the court has all the authority appropriate to its exercise. ...

Equally pertinent is the Court's statement therein announcing the members' unanimous conviction that "it has the authority to inquire into the existence of said factual bases [stated in the proclamation suspending the privilege of the writ of habeas corpus or placing the country under martial law as the case may be, since the requirements for the exercise of these powers are the same and are provided in the very same clause] in order to determine the constitutional sufficiency thereof."32The Court stressed therein that "indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred upon 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 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 the courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the frames of our Constitution could not have intended to engage in such a wasteful exercise in futility."33

While a state of martial law may bar such judicial inquiries under the writ of habeas corpus in the actual theater of war, would the proscription apply when martial law is maintained as an instrument of social reform and the civil courts (as well as military commissions) are open and freely functioning? What is the extent and scope of the validating provision of Article XVII, section 3 (2) of the Transitory Provisions of the 1973 Constitution?34

Granting the validation of the initial preventive detention, would the validating provision cover indefinite detention thereafter or may inquiry be made as to its reasonable relation to meeting the emergency situation?

What rights under the Bill of Rights, e.g. the rights to due process and to "speedy, impartial and public trial"35may be invoked under the present state of martial law?

Is the exercise of martial law powers for the institutionalization of reforms incompatible with recognizing the fundamental liberties granted in the Bill of Rights?

The President is well aware of the layman's view of the "central problem of constitutionalism in our contemporary society ... whether or not the Constitution remains an efficient instrument for the moderation of conflict within society. There are two aspects of this problem. One is the regulation of freedom in order to prevent anarchy. The other is the limitation of power in order to prevent tyranny."36

Hence, he has declared that "The New Society looks to individual rights as a matter of paramount concern, removed from the vicissitudes of political controversy and beyond the reach of majorities. We are pledged to uphold the Bill of Rights and as the exigencies may so allow, we are determined that each provision shall be executed to the fullest,"37and has acknowledged that "martial law necessarily creates a command society ... [and] is a temporary constitutional expedient of safeguarding the republic ..."38

He has thus described the proclamation of martial law and "the setting up of a corresponding crisis government" as constitutional authoritarianism," which is a recognition that while his government is authoritarian it is essentially constitutional and recognizes the supremacy of the new Constitution.

He has further declared that "martial law should have legally terminated on January 17, 1973 when the new Constitution was ratified" but that "the Popular clamor manifested in the referendum [was] that the National Assembly he temporarily suspended" and the reaction in the July, 1973 referendum "was violently against stopping the use of martial law powers," adding that "I intend to submit this matter at least notice a year to the people, and when they say we should shift to the normal functions of government, then we will do so."39

The realization of the prospects for restoration of normalcy and full implementation of each and every provision of the Bill of Rights as pledged by the President would then hopefully come sooner rather than later and provides an additional weighty reason for the exercise of judicial abstention under the environmental circumstances and for the granting of the withdrawal motion.

II. In the Aquino case: I maintain my original vote as first unanimously agreed by the Court for dismissal of the habeas corpus petition of Benigno S. Aquino, Jr. on the ground that grave charges against him for violation of the Anti-Subversion Act (Republic Act 1700), etc. were filed in August, 1973 and hence the present petition has been superseded by the prohibition case then filed by him questioning the filing of the charges against him with a military commission rather than with the civil courts (which case is not yet submitted for decision).

The said prohibition case involves the same constitutional issues raised in the Diokno case and more, concerning the constitutionality of having him tried by a military commission for offenses allegedly committed by him long before the declaration of martial law. This is evident from the special and affirmative defenses raised in respondents' answer which filed just last August 21, 1974 by the Solicitor which reiterate the same defenses in his answer to the petition at bar. Hence, the same constitutional issues may well be resolved if necessary in the decision yet to be rendered by the Court in said prohibition case.

I therefore dissent from the subsequent vote of the majority to instead pass upon and resolve in advance the said constitutional issues unnecessarily in the present case.

III. In the Rodrigo case: I submit that the habeas corpus petition of Francisco "Soc" Rodrigo as well as the petitions of those others similarly released should be dismissed for having been rendered moot and academic by virtue of their release from physical confinement and detention. That their release has been made subject to certain conditions (e.g. not being allowed to leave the Greater Manila area without specific authorization of the military authorities) does not mean that their action would survive, since "(T)he restraint of liberty which would justify the issuance of the writ must be more than a mere moral restraint; it must be actual or physical ."40They may have some other judicial recourse for the removal of such restraints but their action for habeas corpus cannot survive since they are no longer deprived of their physical liberty. For these reasons and those already expounded hereinabove, I dissent from the majority vote to pass upon and resolve in advance the constitutional issues unnecessarily in the present case.

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Footnotes

1 Petitioner's Reply to Solicitor-General's Comment dated March 7,1974, pp. 40-41.

2 Idem, pp. 39-40: see L-35556, L-35567 and L-35571 where petitions were withdrawn with leave of the Court.

3 Makalintal, C.J. and Zaldivar, Fernando, Teehankee, Barredo, Muñoz Palma and Aquino, JJ. voted for granting the withdrawal motion. Castro, Makasiar, Antonio, Esguerra and Fernandez, voted for denial of the motion.

4 Article X, section 2, which further requires the concurrence of it least ten (10) members to declare unconstitutional a treaty, executive agreement or law.

5 Respondents' comment of Jan. 17, 1974 on motion to withdraw petition, p. 6.

6 Idem, p. 5.

7 Respondents' memorandum of Nov. 17, 1972, pp. 41-47.

8 Respondents' comment of Jan. 17, 1974, pp. 3, 5 and 16. The Solicitor-General's line of judgment: "(T)he charge in the case at bar goes to the very foundations of our system of justice and the respect that is due to it. It is subversive of public confidence in the impartiality and independence of courts and tends to embarrass the administration of justice. As has been aptly said, 'The Court's authority — possessed of neither the purse nor the sword — untimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact and in appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.' (Baker v. Carr, 369 U.S. 186, 266, 267, Frankfurter, J. dissenting [1962].)

"Unless, therefore, the charge is rectified anything this Court will do in the case at bar is likely to be misconstrued in the public mind. If this Court decides this case and renders judgment against petitioner, its decision is likely to be misinterpreted either as a vindictive action taken against the petitioner or as proving his charge. If it grants the Motion to Withdraw it will be confessing the very judgment expressed by the petitioner — that this Court cannot do justice in this case. Perhaps the only way open for it would be to render judgment for the petitioner, although then others will likely think that the Court is reacting to the charge. 'It is this harmful obstruction and hindrance that the judiciary strives to avoid, under penalty of contempt,' as this Court explained in another case. (Herras Teehankee vs. Director of Prisons, re Antonio Quirino, 76 Phil. 630 [1946].)"

9 Solicitor-General's Reply to petitioner's comment (re Manifestation) dated June 10, 1974, pp. 2-4.

10 Respondents' Reply to Petitioner's Sur-Rejoinder (re motion to withdraw) dated June 10, 1974, pp. 5-6, citing James, What Pragmatism Means in Human Experience and its Problems: Introductory Readings in Philosophy, 23, 25 (A Tsambassis ed. 1967).

11 Filed on August 23, 1973.

12 Respondents' comment of Jan. 17, 19-14, p. 17; emphasis supplied.

13 Solicitor-General's Reply to petitioner's comment, dated June 10, 1974, p. 13.

14 Javellana vs. Executive Secretary, L-36142, et al., March 31, 1973.

15 Petitioner's withdrawal motion on Dec. 29, 1973, pp. 3,4 and 7.

16 Thus, on April 7, 1973, after its decision of March 31, 1973 dismissing the ratification cases, acting upon the urgent petition of the wives of petitioners Diokno and Aquino that their visitation privileges had been suspended and that they had lost all contact for over a month with the detainees whose personal effects were returned to their homes, the Court in Case L-36315 "upon humanitarian considerations .... resolved unanimously to grant pending further action by this court, that portion of the prayer in petitioner's action by this Court, that portion of the prayer in petitioner's "Supplement and/or amendment to petition" filed on April 6, 1973 that the wives and minor children of petitioners Diokno and Aquino be allowed to visit them, subject to such precautions as respondents may deem necessary."

17 Petitioner's withdrawal motion, pp. 6-7.

18 Subject to the transistor provisions of Article XII.

19 Congress no longer convened on January 22, 1973 as ordained by the 1935 Constitution: see Roxas vs. Executive Secretary L-36165, March 31, 1973, with a majority of its members opting to serve in the abortive Interim National Assembly under Art. XVII, see. 2 of the 1973 Constitution.

20 Javellana vs. Exec. Secretary, 50 SCRA 30, 141.

21 Justices Zaldivar, Fernando and the writer, with Chief Justice Concepcion, retired, and now Chief Justice Makalintal and Justice Castro.

22 Article XII, sec. 8, 1973 Constitution.

23 SEC. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the appointment and qualification of their successors. "

24 "na pinapagpatuloy sa panunungkulan" as stated in the original oath in Pilipino.

25 Fernandez, Muñoz Palma and Aquino, JJ.

26 SEC 4. All public officers and employees and members of the armed forces shall take an oath to support and defend the Constitution."

27 See Phil. Express, Times Journal and Bulletin Today issues of Oct. 30, 1973. The Court and the Integrated Bar have since then petitioned the President to extend likewise the same security of tenure to all other judges of inferior courts from the Court of Appeals down by setting a time limit to the exercise of his power of summary replacement.

28 42 SCRA 448, 462, 492.

29 Except Justice Fernando who opined that "(B)y 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. Henceforward, the accused is entitled to demand all the constitutional safeguards and privileges essential to due process." citing Justice Tuason's opinion in Nava vs. Gatmaitan, 90 Phil. 172 (1951).

30 Since September 23, 1972.

31 287 U.S. 375, 385; emphasis copied from Lansang, 42 SCRA at p. 473.

32 Referring to the requirements of Art. III, sec. 1, par. 14 and Art. VII, see. 11, par. 2 of the 1935 Constitution, now Art. IV, sec. 15 reads:

SEC. 12. The Prime Minister [President] shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. (Art. IX, sec. 12, 1973 Constitution and Art. VII, sec. 11 (2) 1935 Constitution).

33 42 SCRA at pp. 473-474; emphasis copied.

34 SEC. 3. (2) All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by regular National Assembly.

35 Art. IV, sec. I and 19, Bill of Rights, 1973 Constitution.

36 Salvador P. Lopez, U.P. president's keynote address, Dec. 3, 1973 at the U.P. Law Center Series on the 1973 Constitution.

37 President Marcos: "Democracy: a living ideology delivered May 25, 1973 before the U.P. Law Alumni Association; Times Journal issue of May 28,1973.

38 President Marcos: Foreword, Notes on the New Society p. vi.

39 U.S. News and World Report, interview with President Marcos, reported in Phil. Sunday Express issue of August 18, 1974.

40 Gonzales vs. Viola, 61 Phil. 824; See also Zagala vs. Ilustre 48 Phil. 282; and Tan vs. Collector of Customs; 34 Phil. 944.

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Separate Opinions

ANTONIO, J.:

These applications for writs of habeas corpus present for review Proclamation No. 1081 of the President of the Philippines, placing the country under martial law on September 21, 1972, and the legality of the arrest and detention of prisoners under the aforesaid proclamation. The issues posed have confronted every democratic government in every clime and in every age. They have always recurred in times of crisis when the nation's safety and continued existence are in peril. Involved is the problem of harmonizing two basic interests that lie at the foundation of every democratic constitutional system. The first is contained in Rosseau's formulation, 'the people's first intention is that the State shall not perish," in other words, the right of the State to its existence. The second are the civil liberties guaranteed by the Constitution, which "imply the existence of an organized system maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. ..." (Cox vs. New Hampshire, 312 U.S. 569 [1940]).

The petitions for habeas corpus initially raise the legality of the arrest and detention of petitioners. As the respondents, however, plead, in defense, the declaration of martial law and the consequent suspension of the privilege of habeas corpus, the validity of Proclamation No. 1081 is the ultimate constitutional issue.

Hearings were held on September 26 and 29 and October 6, 1972.1

Meanwhile, some of the petitioners were allowed to withdraw their petitions.2Most of the petitioners were subsequently released from custody under certain conditions and some of them insist that their cases have not become moot as their freedom of movement is restricted.3 As of this date, only petitioner Benigno Aquino, Jr. (L-35546) remains in military custody.

On August 11, 1973, petitioner Benigno Aquino, Jr. was charged before the military commission with the crimes of subversion under the Anti-Subversion Act (Republic Act No. 1700), murder and illegal possession of firearms. On August 23, 1973, he filed an action for certiorari and prohibition (L-35546) with this Court, assailing the validity of his trial before the military commission, because the creation of military tribunals for the trial of offenses committed by civilians is unconstitutional in the absence of a state of war or status of belligerency; being martial law measures, they have ceased with the cessation of the emergency; and he could not expect a fair trial because the President of the Philippines had prejudged his case. That action is pending consideration and decision.

On December 28, 1973, petitioner Diokno moved to withdraw his petition (L-35539), claiming that there was delay in the disposition of his case, and that as a consequence of the decision of this Court in Javellana v. Executive Secretary (L36142, March 31, 1973) and of the action of the members of this Court in taking an oath to support the New Constitution, he has reason to believe that he cannot "reasonably expect to get justice in this case." Respondents oppose this motion on the ground that public interest or questions of public importance are involved and the reasons given are factually untrue and contemptuous. On September 11, 1974, petitioner Diokno was released from military custody. In view of his release, it was the consensus of the majority of the Court to consider his case as moot. We shall now proceed to discuss the issues posed by the remaining cases.

1. Is the determination by the President of the Philippines of the necessity for the exercise of his power to declare martial law political, hence, final and conclusive upon the courts, or is it justiciable and, therefore, his determination is subject to review by the courts?

2. Assuming Lansang to be applicable, can it be said that the President acted arbitrarily in issuing Proclamation No. 1081?

3. Assuming that the issues are justiciable, can the Supreme Court upon the facts of record and those judicially known to It now declare that the necessity for martial law has already ceased?

4. Under a regime of martial law, can the Court inquire into the legal justification for the arrest and detention as well as the other constraints upon the individual liberties of the petitioners? In the affirmative, does It have any adequate legal basis to declare that their detention is no longer authorized by the Constitution.

I

CONSTITUTION INTENDED STRONG EXECUTIVE

The right of a government to maintain its existence is the most pervasive aspect of sovereignty. To protect the nation's continued existence, from external as well as internal threats, the government "is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions" (Mr. Justice Bradley, concurring in Legal Tender Cases [US] 12 Wall. 457, 554, 556, 20 L. ed. 287, 314, 315). To attain this end, nearly all other considerations are to be subordinated. The constitutional power to act upon this basic principle has been recognized by all courts in every nation at different periods and diverse circumstances.

These powers which are to be exercised for the nation's protection and security have been lodged by the Constitution under Article VII, Section 10 (2) thereof, on the President of the Philippines, who is clothed with exclusive authority to determine the occasion on which the powers shall be called forth.

The constitutional provision expressly vesting in the President the power to place "the Philippines or any part thereof under martial law in case of invasion, insurrection or rebellion or imminent danger thereof when the public safety requires it,"4 is taken bodily from the Jones Law with the difference that the President of the United States had the power to modify or vacate the action taken by the Governor-General.5Although the Civil Governor, under Section 5 of the Philippine Bill of 1902, could, with the approval of the Philippine Commission, suspend the privilege of the writ of habeas corpus no power to proclaim martial law was specifically granted. This power is not mentioned in the Federal Constitution of the United States. It simply designates the President as commander-in-chief:

The President shall be Commander-in-Chief of the Army and Navy of the United States and of the militia of the several states when called into actual service of the United States ...6

Its absence in the Federal Constitution notwithstanding, President Abraham Lincoln during the Civil War placed some parts of the country under martial law. He predicated the exercise of this power on his authority as Commander-in-Chief of the Armed Forces and on the ground of extreme necessity for the preservation of the Union. When not expressly provided in the Constitution, its justification, therefore, would be necessity. Thus some authoritative writers view it as "not a part of the Constitution but is rather a power to preserve the Constitution when constitutional methods prove inadequate to that end. It is the law of necessity."7Since the meaning of the term "martial law" is obscure, as is the power exercisable by the Chief Executive under martial law, resort must be had to precedents. Thus the powers of the Chief Executive under the Commander-in-Chief clause of the Federal Constitution have been drawn not only from general and specific provisions of the Constitution but from historical precedents of Presidential action in times of crises. Lincoln invoked his authority under the Commander-in-Chief clause of the Federal Constitution for the series of extraordinary measures which he took during the Civil War, such as the calling of volunteers for military service, the augmentation of the Army and Navy, the payment of $2 million from the un appropriated funds in the Treasury to persons unauthorized to receive it, the closing of the Post Office to "treasonable correspondence," the blockade of Southern ports, the suspension of the writ of habeas corpus, the arrests and detentions of persons "who were represented to him as being engaged in or contemplating "treasonable practices" — all this for the most part was done without the least statutory authorization from Congress. The actions of Lincoln "assert for the President," according to Corwin, "an initiative of indefinite scope and legislative in effect in meeting the domestic aspects of a war emergency."8The creation of public offices is conferred by the Federal Constitution to Congress. During World War 1, however, President Wilson, on the basis of his power under the "Commander-in-Chief" clause of the Federal Constitution, created "public offices," which were copied in lavish scale by President Roosevelt in World War II. "The principal canons of constitutional interpretation are in wartime set aside," according to Corwin, "so far as concerns both the scope of national power and the capacity of the President to gather unto himself all the constitutionally available powers in order the more effectively to focus them upon the task of the hour."9The presidential power, "building on accumulated precedents has taken on at times, under the stimulation of emergency conditions," according to two eminent commentators, the "dimensions of executive prerogative as described by John Locke, of a power to wit, to fill needed gaps in the law, or even to supersede it so far as may be requisite to realize the fundamental law of nature and government, namely, that as much as may be all the members of society are to be preserved."10

There is no question that the framers of the 1935 Constitution were aware of these precedents and of the scope of the power that had been exercised by the Presidents of the United States in times of grave crisis. The framers of the Constitution "were not only idealists but also practical-minded men." "While they abjured wars of aggression they well knew that for the country to survive provisions for its defense had to be made."11

II

TEXTUALLY DEMONSTRABLE CONSTITUTIONAL
COMMITMENT OF ISSUE TO THE PRESIDENT

Instead of making the President of the Philippines simply the commander-in-chief of all the armed forces, with authority whenever it becomes necessary to call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion, the framers of the 1935 Constitution expressly conferred upon him the exclusive power and authority to suspend the privileges of the writ of habeas corpus or place the Philippines, or any part thereof, under martial law.

The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus or place the Philippines or any part thereof under martial law.12

The condition which would warrant the exercise of the power was not confined to actual invasion, insurrection or rebellion, but also to imminent danger thereof, when the public safety requires it. It is evident, therefore, that while American Presidents derived these extraordinary powers by implication from the State's right to self-preservation, the President of the Philippines was expressly granted by the Constitution with all the powers necessary to protect the nation in times of grave peril.

The safety and well-being of the nation required that the President should not be hampered by lack of authority but was to be a "strong executive who could maintain the unity of the nation with sufficient powers and prerogatives to save the country during great crises and dangers."13

As Delegate Jose P. Laurel comprehensively explained:

... A strong executive he is intended to be, because a strong executive we shall need, especially in the early years of our independent, or semi-independent existence. A weak executive is synonymous with a weak government. He shall not be a 'monarch' or a dictator in time of profound and Octavian peace, but he virtually so becomes in an extraordinary emergency; and whatever may be his position, he bulwarks normally, the fortifications of a strong constitutional government, but abnormally, in extreme cases, he is suddenly ushered is as a Minerva, full-grown and in full panoply of war, to occupy the vantage ground as the ready protector and defender of the life and honor of his nation. (Emphasis Supplied.)14

The concentration of an amplitude of power in the hands of the Commander-in-Chief of the Armed Forces of the Philippines, who is at the same time the elected civilian Chief of State, is predicated upon the fact that it is he who must initially shoulder the burden and deal with the emergency. By the nature of his position he possesses and wields the extraordinary powers of self-preservation of the democratic, constitutional state. In times of crisis there is indeed unification of responsibility and centralization of authority in the Chief Executive. "The concentration of governmental power in a democracy faced by an emergency," wrote Rossiter, "is a corrective to the crisis inefficiencies inherent in the doctrine of the separation of powers. ... In normal times the separation of powers forms a distinct obstruction to arbitrary governmental action. By this same token in abnormal times it may form an insurmountable barrier to decisive emergency action in behalf of the State and its independent existence. There are moments in the life of any government when all the powers must work together in unanimity of purpose and action, even if this means the temporary union of executive, legislative and judicial powers in the hands of one man. The more complete the separation of powers in a constitutional system, the more difficult and yet the more necessary will be their fusion in time of crisis." (Rossiter, Constitutional Dictatorship, 288-289.)

It was intended, however, that the exercise of these extraordinary powers is for the preservation of the State, its democratic institutions, and the permanent freedom of its citizens.

III

RESPONSIBILITY IMPLIES BROAD
AUTHORITY AND DISCRETION

The conditions of war, of insurrection or rebellion, or of any other national emergency are as varied as the means required for meeting them and it is, therefore, within the contemplation of the Constitution that t he Chief Executive, to preserve the safety of the nation on those times of national peril, should have the broadest authority compatible with the emergency in selecting the means and adopting the measures which in his honest judgment are necessary for the preservation of the nation's safety. "The circumstances that endanger the safety of nations are infinite," wrote Alexander Hamilton, "and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed ... This is one of those truths which to a correct and unprejudiced mind carries its own evidence along with it, and may be obscured, but cannot be made plainer by argument or reasoning ... The means ought to be in proportion to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by] which it is to be attained."15Mr. Madison expressed the same idea in the following terms: "It is vain to impose constitutional barriers to the impulse of self-preservation. It is worse than in vain, because it plants in the Constitution itself necessary usurpations of power."16

"Unquestionably," wrote Chief Justice Taney in Luther v. Borden (7 How. 44, [18491, 12 L.ed. 600), "a State may use its military power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and free institutions, and is as necessary to the States of this Union as to any other government. The State itself must determine what degree of force the crisis demands. And if the Government of Rhode Island deemed the armed opposition so formidable, and so ramified throughout the State, as to require the use of its military force and the declaration of martial law, we see no ground upon which this Court can question its authority."

In the Prize cases (17 L. ed. 476, [1863]), the Court ascribed to the President of the United States, by virtue of his powers as Chief Executive and as Commander-in-Chief, the power which in Luther v. Borden is attributed to the government as a whole, to treat of insurrection as a state of war, and the scene of the insurrection as a seat or theater of war. As Justice Grier in the Prize cases significantly stated: "Whether the President in fulfilling his duties as Commander-in-Chief, in suppressing an insurrection, has met with such hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decisions and acts of the Political Department of the government to which this power was entrusted. 'He must determine what degree of force the crisis demands. (Emphasis supplied.)

In Hirabayashi v. United States, where the Court upheld the curfew regulations affecting persons of Japanese ancestry as valid military measures to prevent espionage and sabotage, there was again re-affirmance of the view that the Constitution has granted to the President and to Congress in the exercise of the war powers a "wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened danger and in the selection of the means for resisting it."

Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra (317 US 28, 29, ante, 12, 13, 63 S Ct 2); Prize Cases, supra (2 Black [US] 670, 17 L ed 477); Martin v. Mott, 12 Wheat. [US] 19, 29, 6 L ed 537, 540). Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has place the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theirs.

The actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many of which, since disclosed, were then peculiarly within the knowledge of the military authorities.17

The measures to be taken in carrying on war and to suppress insurrection," according to Justice Swayne, in Stewart v. Kahn,18"are not defined. The decision of all questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution. In the latter case, the power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently the power to guard against the immediate renewal of the conflict, and to remedy the evils which have arisen from its rise and progress.

The thrust of those authorities is that the President as commander-in-chief and chief executive on whom is committed the responsibility is empowered, indeed obliged, to preserve the state against domestic violence and alien attack. In the discharge of that duty, he necessarily is accorded a very broad authority and discretion in ascertaining the nature and extent of the danger that confronts the nation and in selecting the means or measures necessary for the preservation of the safety of the Republic.

The terms "insurrection" and "rebellion" are in a large measure incapable of precise or exact legal definitions and are more or less elastic in their meanings. As to when an act or instance of revolting against civil or political authority may be classified as an "insurrection" or as a "rebellion" is a question better addressed to the President, who under the Constitution is the authority vested with the power of ascertaining the existence of such exigencies and charged with the responsibility of suppressing them. To suppress such danger to the state, he is necessarily vested with a broad authority and discretion, to be exercised under the exigencies of each particular occasion as the same may present itself to his judgment and determination. His actions in the face of such emergency must be viewed in the context of the situation as it then confronted him. It is not for any court to sit in review of the wisdom of his action as commander-in-chief or to substitute its judgment for his.

IV

NEED FOR UNQUESTIONING ADHERENCE
TO POLITICAL DECISION

It is, however, insisted that even with the broad discretion granted to the President by the Constitution in ascertaining whether or not conditions exist for the declaration of martial law, his findings in support of such declaration should nevertheless be subject to judicial review.

It is important to bear in mind that We are here dealing with a plenary and exclusive power conferred upon the Chief Executive by the Constitution. The power itself is to be exercised upon sudden emergencies, and under circumstances which may be vital to the existence of the government. A prompt and unhesitating obedience to orders issued in connection therewith is indispensable as every delay and obstacle to its immediate implementation may jeopardize the public interests.

By reason of his unique position as Chief Executive and as Commander-in-Chief of the Armed Forces of the Philippines, it is he, more than any other high official of the government, who has the authority and the means of obtaining through the various facilities in the civil and military agencies of the government under his command, information promptly and effectively, from every quarter and corner of the state about the actual peace and order condition of the country. In connection with his duty and responsibility, he is necessarily accorded the wise and objective counsel of trained and experienced specialists on the subject. Even if the Court could obtain all available information, it would lack the facility of determining whether or not the insurrection or rebellion or the imminence thereof poses a danger to the public safety. Nor could the courts recreate a complete picture of the emergency in the face of which the President acted, in order to adequately judge his military action. Absent any judicially discoverable and manageable standards for resolving judicially those questions, such a task for a court to undertake may well-nigh be impossible. On the other hand, the President, who is responsible for the peace and security of the nation, is necessarily compelled by the Constitution to make those determinations and decisions. The matter is committed to him for determination by criteria of political and military expediency. There exists, therefore, no standard ascertainable by settled judicial experience by reference to which his decision can be reviewed by the courts.19Indeed, those are military decisions and in their very nature, "military decisions are not susceptible of intelligent and judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence, courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint."20He is necessarily constituted the judge of the existence of the exigency in the first instance and is bound to act according to his belief of the facts.

Both reason and authority, therefore, dictate that the determination of the necessity for the exercise of the power to declare martial law is within the exclusive domain of the President and his determination is final and conclusive upon the courts and upon all persons. (cf. Fairman, Martial Rule and the Suppression of Insurrection, p. 771 .)21This construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the Constitution.

(a) Barcelon v. Baker.

The existing doctrine at the time of the framing and adoption of the 1935 Constitution was that of Barcelon v. Baker (5 Phil. 87). It enunciated the principle that when the Governor-General with the approval of the Philippine Commission, under Section 5 of the Act of Congress of July 1, 1902, declares that a state of rebellion, insurrection or invasion exists, and by reason thereof the public safety requires the suspension of the Privileges of habeas corpus, this declaration is held conclusive upon the judicial department of the government. And when the Chief Executive has decided that conditions exist justifying the suspension of the privilege of the writ of habeas corpus, courts will presume that such conditions continue to exist until the same authority has decided that such conditions no longer exist. These doctrines are rooted on pragmatic considerations and sound reasons of public policy. The "doctrine that whenever the Constitution or a statute gives a discretionary power to any person, such person is to be considered the sole and exclusive judge of the existence of those facts" has been recognized by all courts and "has never been disputed by any respectable authority." Barcelon v. Baker, supra.) The political department, according to Chief Justice Taney in Martin v. Mott (12 Wheat 29-31), is the sole judge of the existence of war or insurrection, and when it declares either of these emergencies to exist, its action is not subject to review or liable to be controlled by the judicial department of the State. (Citing Franklin v. State Board of Examiners, 23 Cal. 172, 178.)

The danger, and difficulties which would grow out of the adoption of a contrary rule are clearly and ably pointed out in the Barcelon case, thus:

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

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

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

It is the duty of the legislative branch of the Government to make stich laws and regulations as will effectually conserve peace and good order and protect the lives and property of the citizens of the State. It is the duty of the Governor-General to take stich steps as he deems wise and necessary for the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict enforcement of laws under the conditions mentioned necessarily tends to jeopardize public interest and the safety of the whole people. If the judicial department of the Government, or any officer in the Government, has a right to contest the orders of the President or of the Governor-General under the conditions above supposed, before complying with such orders, then the hand of the President or the Governor-General may be tied until the very object of the rebels or insurrectos or invaders has been accomplished. But it is urged that the President, or the Governor-General with the approval of the Philippine Commission, might be mistaken as to the actual conditions; that the legislative department — the Philippine Commission — might, by resolution, declare after investigation, that a state of rebellion, insurrection, or invasion exists, and that the public safety requires the suspension of the privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions actually existed; that the President, or Governor-General acting upon the authority of the Philippine Commission, might by proclamation suspend the privilege of the writ of habeas corpus without there actually existing the conditions mentioned in the act of Congress. In other words, the applicants allege in their argument in support of their application for the writ of that the levislative and executive branches of the Government might reach a wrong conclusion from their investigations of the actual conditions, or might, through a desire to oppress and harass the people, declare that a state of rebellion, insurrection, or invasion existed and that public safety required the suspension of the privilege of the writ of habeas corpus when actually and in fact no such conditions did exist. We can not assume that the legislative and executive branches will act or take any action based upon such motives.

Moreover, it cannot be assumed that the legislative and executive branches of the Government, with all the machinery which those branches have at their command for examining into the conditions in any part of the Archipelago, will fail to obtain all existing information concerning actual conditions. It is the duty of the executive branch of the Government to constantly inform the legislative ranch of the Government of the condition of the Union as to the prevalence of peace or disorder. The executive branch of the Government, through "Its numerous branches of the civil and military, ramifies every-portion of the Archipelago, and is enabled thereby to obtain information from every quarter and corner of the State. Can the judicial department of the Government, with its very limited machinery for the purpose of investigating general conditions be any more sure of ascertaining the true conditions through out the Archipelago or in any particular district, than the other branches of the Government? We think not. (5 Phil., pp. 93-96.)

(b) The Constitutiondal Convention of 1934.

This was the state of Philippine jurisprudence on the matter, when the Constitutional Convention met on July 20, 1934. It must be recalled that, under the Philippine Bill of 1902, the suspension of the privilege of the writ of habeas corpus by the Governor-General was subject to the approval of the Philippine (Section 5, Act of Congress of July 1, 1902), while, under Section 21 of the Jones Law of 1916, the suspension of the of privilege of the writ of habeas corpus as well as the proclamation of martial law by the Governor-General could be modified or vacated by the President of the United State. When the first Draft was Submitted conferring the power to suspend the privilege of the writ of habeas corpus exclusively upon the President, Delegate Araneta proposed an amendment to the effect that the National Assembly should be the organ empowered to suspend the privileges of the habeas corpus and, when not session, the same may be done by the President with the consent of the majority of the Supreme Court. Under the provisions of the Draft, Delegate Araneta argued, "the Chief Executive would be the only authority to determine the existence of the reasons for the suspension of the writ of habeas corpus; and, according to Philippine jurisprudence, the Supreme Court would refuse to review the findings of the Executive on the matter. Consequently, he added, arrests would be effected by military men who were generally arbitrary. They would be arresting persons connected with the rebellion, insurrection, invasion; some of them might also be arresting other person without any cause whatsoever. The result would be that many persons might find themselves detained when in fact they had no connection whatsoever with the disturbances."22Notwithstanding the brilliant arguments of Delegate Araneta, the Convention voted down the amendment. Evident was the clear intent of the framers of the Charter of vesting on the President the exclusive power of suspending the privilege of the writ of habeas corpus and the conclusive power to determine whether the exigency has arisen requiring the suspension. There was no opposition in the Convention to the grant on the President of the exclusive power to place the Philippines or any part thereof under martial law.

Realizing the fragmentation of the Philippines into thousands of islands and of the war clouds that were then hovering over, Europe and Asia, the aforesaid framers of the Charter opted for a strong executive.

The provision of Section 10, Paragraph 2, of Article VII of the 1935 Constitution was, therefore, adopted in the light of the Court's interpretation in Barcelon v. Baker.

(c) Montenegro v. Castañeda.

On August 30, 1952, or 17 years after the ratification of the 1935 Constitution, this Court in Montenegro v. Castañeda (91 Phil. 882. 887), construing the power of the President of the Philippines under Article VII, Section 10, Paragraph 2, of the Constitution, re-affirmed the doctrine in Barcelon v. Baker, thus: "We agree with the Solicitor General that in the light of the view of the limited States Supreme Court through Marshall, Taney and Story quoted with approval in Barcelon v. Baker (5 Phil. 87, 99-100), the authority to decide whether the exigency has arisen requiring suspension belongs to the President and 'his decision is final and conclusive' upon the courts and upon all other persons."

On Montenegro's contention that there is no state of invasion, insurrection, rebellion or imminent danger thereof, as the "intermittent sorties and lightning attacks by organized bands in different places are occasional, localized and transitory," this Court explained that to the unpracticed eye the repeated encounters between dissident elements and military troops may seem sporadic, isolated, or casual. But the officers charged with the Nation's security, analyzed the extent and pattern of such violent clashes and arrived at the conclusion that they are warp and woof of a general scheme to overthrow this government "vi et armis, by force of arms." This Court then reiterated one of the reasons why the finding of the Chief Executive that there is "actual danger of rebellion" was accorded conclusiveness, thus: "Indeed, as Justice Johnson said in that decision, whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery can not be in better position to ascertain or evaluate the conditions prevailing in the Archipelago." (Montenegro v. Castañeda and Balao, 91 Phil., 882, 886-887.)

It is true that the Supreme Court of the United States in Sterling v. Constantin,23asserted its authority to review the action taken by the State Governor of Texas under his proclamation of martial law. However, the Court chose not to overturn the principle expressed in Moyer v. Peabody that the question of necessity is "one strictly reserved for executive discretion." It held that, while the declaration of is conclusive, the measures employed are reviewable:

It does not follow from the fact that the executive has this range of discretion, deemed to be a necessary incident of his power to suppress disorder that every sort of action the Governor may take, no matter how unjustified by the exigency or subversive or private right and the jurisdiction of the courts, otherwise available, is conclusively supported by mere executive fiat. The contrary is well-established What are the limits of military discretion, and whether or not they have been overstepped in a particular case are judicial questions. ...

This ruling in Sterling should be viewed within the context of its factual environment. At issue was the validity of the attempt of the Governor to enforce by executive or military order the restriction on the production of oil wells which the District Judge had restrained pending proper judicial inquiry. The State Governor predicated his power under martial law, although it was conceded that "at no time has there been any actual uprising in the territory; at no time has any military force been exerted to put riots and mobs down." The Court disapproved the order of the Governor as it had no relation to the suppression of disorder but on the contrary it undermined the restraining order of the District Judge. The Court declared that the Governor could not by pass the processes of constitutional government by simply declaring martial law when no bona fide emergency existed. While this case shows that the judiciary can interfere when no circumstances existed which could reasonably be interpreted as constituting an emergency, it did not necessarily resolve the question whether the Court could interfere in the face of an actual emergency.

(d) Lansang v. Garcia.

Our attention, is however, invited to Lansang v. Garcia (G.R. No. L-33964 etc., December 11, 1971, 42 SCRA 448) where this Court declared, in connection with the suspension of the of the writ of habeas corpus by the President of the Philippines on August 21, 1971, that it has the authority to inquire into the existence of the factual basis of the proclamation in order to determine the constitutional sufficiency thereof. But this assertion of authority is qualified by the Court's unequivocal statement that "the function of the Court is merely to check — not to supplant — the Executive, or to ascertain merely whether he has gone beyond they constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." And that judicial inquiry into the basis of the questioned than to satisfy the Court to not the President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily."

In the ascertainment of the factual basis of the suspension, however, the Court had to rely implicitly on the findings of the Chief Executive. It did not conduct any independent factual inquiry for, as this Court explained in Barcelon and Montenegro, "... whereas the Executive branch of the Government is enabled thru its civil and military branches to obtain information about peace and order from every quarter and corner of the nation, the judicial department, with its very limited machinery cannot be in a better position to ascertain or evaluate the conditions prevailing in the Archipelago." Indeed, such reliance on the Executive's findings would be the more compelling when the danger posed to the public safety is one arising from Communist rebellion and subversion.

We can take judicial notice of the fact that the Communists have refined their techniques of revolution, but the ultimate object is the same — "to undermine through civil disturbances and political crises the will of the ruling class to govern, and, at a critical point, to take over State power through well-planned and ably directed insurrection."24Instead of insurrection, there was to be the protracted war. The plan was to retreat and attack only at an opportune time. "The major objective is the annihilation of the enemy's fighting strength and in the holding or taking of cities and places. The holding or taking of cities and places is the result of the annihilation of the enemy's fighting strength."25The Vietnam War contributed its own brand of terrorism conceived by Ho Chi Minh and Vo Nguyen Giap — the silent and simple assassination of village officials for the destruction of the government's administrative network. Modern rebellion now is a war of sabotage and harassment, of an aggression more often concealed than open of guerrillas striking at night, of assassins and terrorists, and of professional revolutionaries resorting to all sorts of stratagems, crafts, methods and subterfuge, to undermine and subvert the security of the State to facilitate its violent overthrow.26

In the ultimate analysis, even assuming that the matter is justiciable will We apply the standards set in Lansang, by ascertaining whether or not the President acted arbitrarily in issuing Proclamation No. 1081, the result would be the same.

For the existence of an actual rebellion and insurrection in this country by a sizable group of men who have publicly risen in arms to overthrow the government was confirmed by this Court in Lansang.

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

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

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

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

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

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

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

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

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

x x x           x x x          x x x

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

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

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

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

x x x           x x x          x x x

The records before Us show that, on or before August 21, 1971, the Executive had information and reports — subsequently confirmed, in many respects by the abovementioned Report of the Senate Ad-Hoc Committee of Seven — to the effect that the Communist Party of the Philippines does not merely adhere to Lenin's idea of a swift armed uprising; that it has, also, adopted Ho Chi Minh's terrorist tactics and resorted to the assassination of uncooperative local officials; ...

Petitioner similarly fail to take into account that — as per said information and reports — the reorganized Communist Party of the Philippines has, moreover, adopted Mao's concept of protracted people's war, aimed at the paralyzation of the will to resist of the government, of the political, economic and intellectual leadership, and of the people themselves; that conformably to such concept, the Party has placed special emphasis upon a most extensive and intensive program of subversion by the establishment of front organizations in urban centers, the organization or armed city partisans and, the infiltration in student groups, labor unions, and farmer and professional groups; that the CPP managed to infiltrate or establish and control nine (9) major labor organizations; that it has exploited the youth movement and succeeded in making Communist fronts of eleven (11) major student or youth organizations; that there are, accordingly, about thirty (30) mass organizations actively advancing the CPP interest, ...; that in 1970, the Party had recorded two hundred fifty-eight (258) major demonstrations, of which about thirty-three (33) ended in violence, resulting in fifteen (15) killed and over five hundred (500) injured; that most of these actions were organized, coordinated or led by the aforementioned front organizations; that the violent demonstrations were generally instigated by a small, but well-trained group of armed agitators; that the number of demonstrations heretofore staged in 1971 has already exceeded those of 1970; and that twenty-four (24) of these demonstrations were violent, and resulted in the death of fifteen (15) persons and the injury to many more.

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

It is true that the suspension of the privilege of the writ was lifted on January 7, 1972, but it can not be denied that soon thereafter, lawlessness and terrorism had reached such a point that the nation was already drifting towards anarchy. On September 21, 1972, when the President of the Philippines, pursuant to Article VII, section 10, paragraph 2 of the 1935 Constitution, placed the Philippines under martial law, the nation was in the throes of a crisis. The authority of the constitutional government was resisted openly by a coalition of forces, of large numbers of persons who were engaged in an armed conflict for its violent overthrow.27The movement with the active material and foreign political and economic interests was engaged in an open attempt to establish by violence and force a separate and independent political state.

Forceful military action, matched with attractive benevolence and a socio-economic program, has indeed broken the back of the rebellion in some areas. There are to be sure significant gains in the economy, the unprecedented increase in exports, the billion-dollar international reserve, the new high in revenue collections and other notable infrastructures of development and progress. Indeed there is a in the people's sense of values, in their attitudes and motivations. But We personally take notice of the fact that even as of this late date, there is still a continuing rebellion that poses a danger to the public safety. Communist insurgency and subversion, once it takes root in any nation, is a hardy plant. A party whose strength is in selected, dedicated, indoctrinated and rigidly disciplined members, which may even now be secreted in strategic posts in industry, schools, churches and in government, can not easily be eradicated.28

The NPA (New People's Army) is pursuing a policy of strategic retreat but tactical offensive. It continues to conduct its activities through six Regional Operational Commands (ROCs) covering Northern, Central, and Southern Luzon, Western and Eastern Visayas, and Mindanao. Combat operations were conducted against the Communist insurgents by the armed forces of the government in Cagayan, Ifugao, Kalinga, Apayao, Camarines Sur, and Sorsogon. Subversive activities continue unabated in urban areas. Last January, 1974, the Maoist group known as the Moro National Liberation Front (MNLF) attacked and overran the military detachment at Bilaan Sulu, and the town of Parang. The town of Jolo was attacked by a rebel force of 500 men last February 6, 974, and to cover their retreat razed two-thirds of the town. Only this August, there was fighting between government troops and muslim rebels armed with modern and sophisticated weapons of war in some parts of Cotabato and in the outskirts of the major southern port city of Davao. It would be an incredible naivete to conclude in the face of such a reality, that the peril to public safety had already abated.

Nor is the fact that the courts are open proof that there is no ground for martial rule or its continuance. The "open court" theory has been derived from the dictum in Ex Parte Milligan (7 Wall. 127 [1866], viz.: "Martial rule cannot arise from a threatened invasion; the necessity must be actual and present; the invasion real such as effectually closes the courts and deposes the civil administration." This has been dismissed as unrealistic by authoritative writers on the subject as it does not present an accurate definition of the allowable limits of the of the President of the United States. As a matter of fact, the limiting force of the Milligan case was materially modified a generation later in another decision of the Court in of the Federal Supreme Court in Moyer v. Peabody (212 U.S. 78 [1909]).

Speaking for the Court in Moyer v. Peabody, Justice Holmes brushed aside as immaterial the fact, which the majority opinion in the Milligan case thought absolutely crucial — viz.: martial rule can never exist where the Courts are open and in the proper and unobstructed exercise of their jurisdiction. The opinion admitted that the Courts were open but held "that the governor's declaration that a state of insurrection existed is conclusive of that fact." Although It found that the "Governor, without sufficient reason, but in good faith, in the course of putting the insurrection down, held the plaintiff until he thought that he could safely release him," the Court held that plaintiff Moyer had no cause of action. Stating that the Governor was empowered by employ the National Guard to suppress insurrection, the Court further declared that "he may kill persons who resist, and of course 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 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 no reasonable ground for his belief ... When it comes to a decision by the head of state upon a matter involving its life, the ordinary rights of the individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."

"It is simply not true," wrote Clinton Rossiter in 1950,29"that martial law cannot arise from a threatened invasion or that martial law can never exist where the Courts are open. These statements do not present an accurate definition of the allowable limits of the martial powers of President and Congress in the face of alien threats or internal disorder. Nor was Davis' dictum on the specific powers of Congress in this matter any more accurate. And, however eloquent and quotable his words on the untouchability of the Constitution in times of actual crisis, they do not now, and did not then, express the realities of American Constitutional Law."

In any event, this "open court" theory does not apply to the Philippine situation. Both the 1935 and the 1973 Constitutions expressly authorize the declaration of martial law, even where the danger to the public safety arises merely from the imminence of an invasion or rebellion. The fact that the civil courts are open can not be controlling, since they might be open and undisturbed in their functions and yet wholly incompetent to avert the threatened danger and to punish those involved in the invasion or rebellion with certainty and promptitude. Certainly such a theory when applied to the situation modern war and of the present day Communist insurgency and subversion would prove to be unrealistic.30

Nor may it be argued that the employment of government resources for the building of a New Society is inconsistent with the efforts of suppressing the rebellion and creating a legitimate public order. "Everyone recognized the legal basis for the martial necessity," wrote President Marcos, "this was the simplest theory of all. National decline and demoralization, social and economic deterioration, anarchy and rebellion were not just statistical reports; they were documented in the mind and body and ordinary experience of every Filipino. But, as a study of revolutions and ideologies proves, martial rule could not in the long run, secure the Philippine Republic unless the social iniquities and old habits which precipitated the military necessity were stamped out. Hence, the September 21 Movement for martial rule to be of any lasting benefit to the people and the nation, to justify the national discipline, should incorporate a movement for great, perhaps even drastic, reforms in all spheres of national life. Save the Republic, yes, but to keep it safe, we have to start remaking the society."31Indeed, the creation of a New Society was a realistic response to the compelling need or a revolutionary change.

For centuries, most of our people were imprisoned in a socio-cultural system that placed them in perpetual dependence. "It made of the many mere pawns in the game of partisan-power polities, legitimized 'hews of wood and drawers of water' for the landed elite, grist for the diploma mills and an alienated mass sporadically erupting in violent resentment over immemorial wrongs. Rural backwardness was built into the very social order wherein our masses could not move forward or even desire to get moving."32The old political framework, transplanted from the West had proven indeed to be inadequate. The aspirations of our people for social justice had remained unfulfilled. The electoral process was no model of democracy in action. To a society that has been torn up by decades of bitter political strife and social anarchy, the problem was the rescue of the larger social order from factional interests. Implicit then was the task of creating a legitimate public order, the creation of political institutions capable of giving substance to public interests. This implied the building of coherent institutions, an effective bureaucracy and all administration capable of enlisting the enthusiasm, support and loyalty of the people. Evidently, the power to suppress or insurrections is riot "limited to victories in the field and the dispersion of the insurgent. It carries with it inherently the power to guard against the immediate renewal of the conflict and to remedy the evils"33which spawned and gave rise to the exigency.

We find confirmation of this contemporaneous construction of presidential powers in the new Constitution. It must be noted that while Art, IX, Sec. 12 of the new Constitution embodies the commander-in-chief clause of the 1935 Constitution (Art. VII, See. 10[2]), it expressly declares in Art. XVII, Sec. 3[2] that the proclamations, orders and decrees, instructions and acts issued or done by the incumbent President, are "part of the law of the land" and are to "remain valid, legal, binding, and effective" until "modified revoked, or superseded by subsequent proclamations, orders, decrees, instruction, or other acts of the incumbent President, or unless expressly repealed by the regular National Assembly." Undoubtedly, the proviso refers to the present martial law regime and the measures taken under it by the President. It must be recalled that the prudent exercise by the President of the powers under martial law not only stemmed the tide of violence and subversion but also buttressed the people's faith in public authority. It is in recognition of the objective merit of the measures taken under martial law that the Constitution affirms their validity.

This is evident from the deliberations of the 166-Man Special Committee of the Constitutional Convention, formed to finally draft the Constitution, at its meeting on October 24, 1972, on the provisions of Section 4 of the draft, now Section 12 of Article IX of the New Constitution, which are quoted hereunder, to wit:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Although there are authorities to the contrary, it is generally held that, in construing constitutional provisions which are ambiguous or of doubtful meaning, the courts may consider the debates in the constitutional convention as throwing light on the intent of the framers of the Constitution.34It is true that the intent of the convention is not controlling by itself, but as its proceeding was preliminary to the adoption by the people of the Constitution the understanding of the convention as to what was meant by the terms of the constitutional provision which was the subject of the deliberation, goes a long way toward explaining the understanding of the people when they ratified it.35More than this, the people realized that these provisions of the new Constitution were discussed in the light of the tremendous forces of change at work in the nation, since the advent of martial law. Evident in the humblest villages to the bustling metropolises at the time were the infrastructures and institutional changes made by the government in a bold experiment to create a just and compassionate society. It was with an awareness of all of these revolutionary changes, and the confidence of the people in the determination and capability of the new dispensation to carry out its historic project of eliminating the traditional sources of unrest in the Philippines, that they overwhelmingly approved the new Constitution.

V

POLITICAL QUESTION

We have adverted to the fact that our jurisprudence attest abundantly to the existence of a continuing Communist rebellion and subversion, and on this point then can hardly be any dispute. The narrow question, therefore, presented for resolution is whether the determination by the President of the Philippines of the necessity for the exercise of his constitutional power to declare martial law is subject to review. In resolving the question, We re-affirm the view that the determination of the for the exercise of the power to declare martial law is within the exclusive domain of the President, and his determination is final and conclusive upon the courts and upon all persons. This conclusion necessarily results from the fact that the very nature of the executive decision is political, not judicial. The decision as to whether or not there is necessity for the exercise of the power is wholly confided by our to the Chief Executive. For such decision, he is directly responsible to the people for whose welfare he is obliged to act. In view of the of the responsibility reposed upon him, it is essential that he be accorded freedom of action demanded by the exigency. The power is to be exercised upon sudden emergencies and under circumstances vital to the existence of the State. The issue is committed to him for determination by criteria of political and military expediency. It is not pretended to rest on evidence but on information which may not be acceptable in court. There are therefore, no standards ascertainable by settled judicial experience or process by reference to which his decision can be judicially reviewed. In other words, his decision is of a kind for which the judicial has neither the aptitude, facilities nor responsibility to undertake. We are unwilling to give our assent to expressions of opinion which, although not intended, tends to cripple the constitutional powers of the government in dealing promptly and effectively with the danger to the public safety posed by the rebellion and Communist subversion.

Moreover, the Court is without power to shape measures for dealing with the problems of society, much less with the suppression of rebellion or Communist subversion. The nature of judicial power is largely negative, and it is essential that the opportunity of the Chief Executive for well-directed positive action in dealing with the problem be preserved, if the Government is to serve the best interests of the people. Finally, as a consequence of the general referendum of July 27-28, 1973, where 18,052,016 citizens voted overwhelmingly for the continuance of President Marcos in office beyond 1973 to enable him to finish the reforms he had instituted under martial law, the question of the legality of the proclamation of martial law, and its continuance, had undoubtedly been removed from judicial intervention.

We conclude that the proclamation of martial law by the President of the Philippines on September 21, 1972 and its continuance until the present are valid as they are in accordance with the Constitution.

VI

COURT PRECLUDED FROM INQUIRING INTO LEGALITY
OF ARREST AND DETENTION OF PETITIONERS

Having concluded that the Proclamation of Martial Law on September 21, 1972 by the President of the Philippines and its continuance are valid and constitutional, the arrest and detention of petitioners, pursuant to General Order No. 2 dated September 22, 1972 of the President, as amended by General Order No. 2-A, dated September 26, 1972, may not now be assailed as unconstitutional and arbitrary. General Order No. 2 directed the Secretary of National Defense to arrest "individuals named in the attached list, for being active participants in the conspiracy to seize political and state power in the country and to take over the government by force ... in order to prevent them from further committing acts that are inimical or injurious to our people, the government and our national interest" and "to hold said individuals until otherwise ordered released by the President or his duly authorized representative." It is not disputed that petitioners are all included in the list attached to General Order No. 2.

It should be important to note that as a consequence of the proclamation of martial law, the privilege of the writ of habeas corpus has been impliedly suspended. Authoritative writers on the subject view the suspension of the writ of habeas corpus as an incident, but an important incident of a declaration of martial law.

The suspension of the writ of habeas corpus is not, in itself, a declaration of martial law; it is simply an incident, though a very important incident, to such a declaration. But practically, in England and the United States, the essence of martial law is the suspension of the privilege of the writ of habeas corpus, and a declaration of martial law would be utterly useless unless accompanied by the suspension of the privilege of such writ. Hence, in the United States the two, martial law and the suspension of the writ is regarded as one and the same thing. Luther v. Borden, 7 How. 1; Martin v. Mott, 12 Wheat. 19; Story, Com. on the Constitution, see. 1342; Johnson v. Duncan, 3 Martin, N.S. 530. (12 L. ed. 582-83).

Evidently, according to Judge Smalley, there could not be any privilege of the writ of habeas corpus under martial law (In re Field, 9 Fed. Cas. 1 [1862]). The evident purpose of the suspension of the writ is to enable the executive, as a precautionary measure, to detain without interference persons suspected of harboring designs harmful to public safety (Ex Parte Zimmerman, 32 Fed. 2nd. 442, 446). In any event, the Proclamation of Martial Law, in effect, suspended the privilege of the writ with respect to those detained for the crimes of insurrection or rebellion, etc., thus:

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

General Order No. 2 was issued to implement the aforecited provisions of the Proclamation of Martial Law. .

By the suspension of the privilege of the writ of habeas corpus, the judiciary is precluded from interfering with the orders of the Executive by inquiring into the legality of the detention of persons involved in the rebellion. .

The arrest and detention of persons reasonably believed to be engaged in, or connected with, the insurgency is predicated upon the principle that in time of public disorder it is the right and duty of all citizens especially the officer entrusted with the enforcement of the law to employ such force as may be necessary to preserve the peace and restrain those who may be committing felonies. Encroachments upon personal liberty, as well as upon private property on those occasions, are justified by the necessity of preserving order and the greater interests of the political community. The Chief Executive, upon whom is reposed the duty to preserve the nation in those times of national peril, has correspondingly the right to exercise broad authority and discretion compatible with the emergency in selecting the means and adopting the measures which, in his honest judgment, are necessary for the preservation of the nation's safety. In case of rebellion or insurrection, the Chief Executive 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." (Moyer v. Peabody, 212 U. S. 78, 84-85 [1909] 53 L. ed. 411.)

The justification for the preventive detention of individuals is that in a crisis such as invasion or domestic insurrection "the danger to the security of the nation and its institutions is so great that the government must take measures that temporarily deprive citizens of certain rights in order to ensure the survival of the political structure that protects those and other rights during ordinary times." (Developments National Security, Vol. 85, Harvard Law Review, March 1972, No. 5, p. 1286).36

In Moyer v. Peabody, supra, the Supreme Court of the United States upheld the detention of a labor leader whose mere presence in the area of a violent labor dispute was deemed likely to incite further disturbances. "So long as such arrests are made in good faith," said the erudite Justice Holmes, "and in the honest belief that they are made in order to head the insurrection off, the governor is the final judge and can not be subjected to an action after he is out of office, on the ground that he had no reasonable ground for his belief."

During World War II, persons of Japanese ancestry were evacuated from their homes in the West Coast and interned in the interior until the loyalty of each individual could be established. In Korematsu v. United States (323, U.S. 214 [244]), the Supreme Court of the United States upheld the exclusion of these persons on the ground that among them a substantial number were likely to be disloyal and that, therefore, the presence of the entire group created the risk of sabotage and espionage. Although the Court avoided constitutionality of the detention that followed the evacuation, its separation of the issue of exclusion from that detention was artificial, since the separate orders part of a single over-all policy. The reasoning behind its of persons of Japanese ancestry would seem to apply with equal force to the detention despite the greater restrictions oil movement that the latter entailed. In the Middle East, military authorities of Israel have detained suspected Arab terrorists without trial (Dershowitz, Terrorism and Preventive Detention: The Case of Israel, 50 Commentaries, Dec. 1970 at 78).

Among the most effective countermeasures adopted by the governments in Southeast Asia to prevent the growth of Communist power has been the arrest and detention without trial of key united front leaders of suitable times.37

The preventive detention of persons reasonably believed to be involved in the Communist rebellion and subversion has long been recognized by all democratic governments as a necessary emergency measure for restoring order. "Because of the difficulty in piercing the secrecy of tightly knit subversive organizations in order to determine which individuals are responsible for the violence, governments have occasionally responded to emergencies marked by the threat or reality of sabotage or terrorism by detaining persons on the ground that they are dangerous and will probably engage in such actions."38

In the case at bar, petitioner Aquino (L-35546) has already been charged with the violation of the Anti-Subversion Act (L37364) and therefore his detention is reasonably related to the dueling of the rebellion. Upon the other hand, the other petitioners have been released but their movements are subject to certain restrictions. The restrictions on the freedom of movement of these petitioners, as a condition for their release, are, however, required by considerations of national security.39In the absence of war or rebellion, the right to travel within the Philippines may be considered constitutionally protected. But even under such circumstances that freedom is not absolute. Areas ravaged by floods, fire and pestilence can be quarantined, as unlimited travel to those areas may directly and materially interfere with the safety and welfare of the inhabitants of the area affected. During a rebellion or insurrection the authority of the commander to issue and enforce police regulations in the area of the rebellion or insurrection is well recognized. Such regulations may involve the limitation of the right of assembly, the right to keep arms, and restrictions on freedom of movement of civilians.40Undoubtedly, measures conceived in good faith, in the face of the emergency and directly related to the quelling of the disorder fall within the discretion of the President in the exercise of his authority to suppress the rebellion and restore public order.

We find no basis, therefore, for concluding that petitioner Aquino's continued detention and the restrictions imposed on the movements of the other petitioners who were released, are arbitrary.

CONCLUSION

We realize the transcendental importance of these cases. Beyond the question of deprivation of liberty of petitioners is the necessity of laying at rest any doubt on the validity of the institutional changes made to bring the country out of an era of rebellion, near political anarchy and economic stagnation and to establish the foundation of a truly democratic government and a just and compassionate society. Indeed, as a respected delegate of two Constitutional Conventions observed: "The introduction of martial law has been a necessary recourse to restore order and steer the country safely through a severe economic and social crisis."41The exercise of these extraordinary powers not only to restore civil order thru military force but also to effect urgently needed reforms in order to root out the causes of the rebellion and Communist subversion may indeed be an experiment in the government. But it was necessary if the national democratic institution was to survive in competition with the more revolutionary types of government. "National democratic constitutionalism, ancient though its origin may be," observed Dr. C.F. Strong,42"is still in an experimental stage and if it is to survive in competition with more revolutionary types of government, we must be prepared to adapt to ever-changing conditions of modern existence. The basic purpose of a political institution is, after all, the same wherever it appears: to secure social peace and progress, safeguard individual rights, and promote national well-being."

These adaptations and innovations were resorted to in order to realize the social values that constitute the professed goals of the democratic polity. It was an attempt to make the political institution serve as an effective instrument of economic and social development. The need of the times was for a more effective mode of decision-making and policy-formulation to enable the nation to keep pace with the revolutionary changes that were inexorably reshaping Philippine Society. A government, observed the then Delegate Manuel Roxas, a Member of the Sub-Committee of Seven of the Sponsorship Committee of the 1934 Constitutional Convention, "is a practical science, not a theory, and a government can be successful only if in its structure due consideration is given to the habits, the customs, the character and, as McKinley said to the idiosyncracies of the people."43

WHEREFORE, We hereby conclude that (a) the proclamation of martial law (Proclamation No. 1081) on September 21, 1972 by the President of the Philippines and its continuance, are valid as they have been done in accordance with the Constitution, and (b) as a consequence of the suspension of the privilege of the writ of habeas corpus upon the proclamation of martial law, the Court is therefore from inquiring into the legality of the arrest and detention of these petitioners or on the restrictions imposed upon their movements after their release military custody.

Accordingly, We vote to dismiss all the petitions.

Makasiar, Fernandez and Aquino, JJ., concur.

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Footnotes

1 Some of those who argued for the petitioners were Attys. Lorenzo Tañada, Jovito Salonga, Ramon A. Gonzales, Joker D. Arroyo, Sedfrey Ordoñez, Pedro Yap, and Francis Garchitorena, while Solicitor General Estelito Mendoza argued for the respondents.

2 L-35556 — Veronica L. Yuyitung and Tan Chin Hian; L-35569 — Amando Doronila, Hernando J. Abaya, Ernesto Granada, Luis D. Beltran, Bren Guiao, Ruben Cusipag and Willie Baun; L-35571 — Teresita M. Guiao in behalf of Bren Guiao, also petitioner in L35569...

3 Joaquin P. Roces, Teodoro M. Locsin, Sr., Rolando Fadul, Rosalind Galang, Go Eng Guan, Renato Constantino, and Luis R. Mauricio in L-35538; Maximo Soliven, Napoleon G. Rama, and Jose Mari Velez in L-35540; Ramon Mitra, Jr., Francisco Rodrigo, and Napoleon Rama in L-35546; Enrique Voltaire Garcia II (deceased) in L-35547: the petitioners in L-35556, L-35567, L-35571, and Ernesto Rondon in L-35573.

4 Art. VII, See. 10(2),1935 Constitution.

5 Sec. 21, Jones Law of 1916.

6 Art. II, Sec. 2, par. 1, U.S. Constitution.

7 Fairman at 23-25; see also Dowell at 231-32.

8 Corwin, The President: Office and Powers, p. 280.

9 Ibid, p. 318.

10 Corwin and Koenig, The Presidency Today.

11 Cortes, The Philippine Presidency, p. 155.

12 Art. VII, Sec. 10(2), 1935 Philippine Constitution.

13 In his report to the Constitutional Convention, Delegate Mariano Jesus Cuenco, Chairman of the Committee on Executive Power, stated:

Señor President: nosotros, los miembros del comite Ejecutivo, teniendo en cuenta por un lado la fragmentacion de nuestro territorio en miles de islas, y, por otro, las grandes crisis que agitan la humanidad, hemos procuradoformar un ejeccutivo fuerte que mantenga la unidad de la nacion, con suficientes poderes y proregativas para salvar al pais en los momentos de grandes peligros. Para conseguir este objetivo, nosotros hemos provisto que el jefe del poder ejecutivo sea eligido por el sufragio directo de todos los electores cualificados del pais; reconocemos su facultad de supervisor los departamentos ejecutivos, todos los negociados administrativos las provincias y los municipios; le nombramos central en jefe del ejercito y milicias filipinos; reconocemos su derecho de vetar leyes y de proponer el nobramientode los altos funcionarios, desde los secretarios departamentales hasta los embajadores y consules, y en los momentos de grandes crisis, cuandola nacion se vea confrontada de algunos peligros como en casos de guerra, etc.se reconoce en este proyecto el derecho del jefe del poder ejecutivo de promulgar reglas, con fuerza de ley, para llevar a cabo una politica nacional. .... (Proceedings of the Philippine Constitutional Convention, Laurel, Vol.III, p. 216, Session of Nov. 10, 1934). (Emphasis supplied.)

As Delegate Miguel Cuaderno observed:

... not only among the members of the Sub-committee of Seven, but also with a majority of the delegates was the feeling quite prevalent that there was need of providing for a strong executive. And in this the lessons of contemporary history were a powerful influence. In times when rulers exercising the prerogatives of a dictator appear to give the last ray of hope to peoples suffering from chaos, one could not but entertain the feeling that the safety and well-being of our young nation require a President who would be unhampered by lack of authority, or vexatious procrastination of other governmental units in case of emergency. (Cuaderno, The Framing of the Constitution of the Philippines, p. 90).

14 The Philippine Constitution, published by the Phil. Lawyers Association, Vol. I, 1969 Ed., p. 183.

15 Federalist No. 23.

16 Ex Parte Jones, 45 LRA (N.S.) 1044.

17 320 US 92, 94 (1943), 87 L.ed. 1782.

18 11 Wallace 493, 506 (1870).

19 Per Mr. Justice Frankfurter, Baker v. Carr, 369 U.S. 186, 7 L. ed. 2d. 723.

20 Mr. Justice Jackson, dissenting, Korematsu v. U.S., 323 U.S. 245, 89 L.ed. 214.

21 "No court will review the evidence upon which the executive acted nor set up its opinion against his." (Vanderheyden v. Young [1814] 11 Johns [N.Y.] 150; Martin v. Mott [1827] 12 Wheat. [U.S.] 19; Luther v. Borden [1848] 7 How. [U.S.] 1; Ex Parte Moore [1870] 64 N.C. 802; Appeal of Hartranft [1877] 85 Pa. St. 433; In re Boyle [1899] 6 Idaho 609; Sweeney v. Commonwealth[1904] 118 Ky. 912; Barcelon v. Baker [1905] 5 Phil., 87, 100; In re Moyer [1905] 35 Colo. 159; Franks v. Smith [1911] 142 Ky. 232; Ex Parte McDonald, supra, Note 11.

22 Aruego, The Framing of the Philippine Constitution, Vol. I, p. 431, 1949 Ed.

23 278 U.S. 378-404; 77 L. ed. 375; Decided December 12, 1932.

24 Goh Keng Swee, the Nature and Appeals of Communism in Non-CommunistAsian Countries, p. 43.

25 James Amme H. Garvey, Maxist-Leninist China: Military and SocialDoctrine, 1960, p. 29.

26 "Finally, Lin Piao in the same article, provides us with a definition of Mao's strategy of waging revolutionary warfare, the strategy of people's war, which comprises the following six major elements:

(1) Leadership by a revolutionary communist party which will properly apply Marxism-Leninism in analyzing the clas character of a colonial or semi-colonial country, and which am formulate correct policy to wage a protracted war against imperialism, feudalsism, and bureaucratic capitalism.

(2) Correct utilization of the united front policy to build 'the broadest possible' national united front to 'ensure the fullest mobilization of the basic masses as well as the unity of all the forces than can be united,' in an effort to take over the leadership of the national revolution and establish the revolution on an alliance of, first, the workers and peasants and, second, an alliance of the working peoples with the bourgeoisie and other non-working people.'

(3) Reliance on the peasantry and the establishment of rural bases, because in agrarian and 'semi-feudal' societies the peasants are the great majority of the population; 'subjected to threefold oppression and exploitation by imperialism, feudalism, and bureaucrat-capitalism,' they will provide of the human and material resources for the revolution. In essence, the revolution is a peasant revolution led by the communist par: 'to rely on the peasants, build rural base areas and use the countryside to encircle and finally capturethe cities such was the way to victory in the Chinese revolution.'

(4) Creation of a communist party-led army of a new type, for a 'universal truth of Marxism-Leninism' is that 'without a people's army the people have nothing.' A new type of communist party-led army in which 'politics is the commander' must be formed, one which focuses on instilling in the minds of the population a 'proletarian revolutionary consciousness and courage and which actively seeks the support and backing of the masses.'

(5) Use of the strategy and tactics of people's war as interpreted by Mao Tse-tung in a protracted armed struggle to annihilate the enemy and take over state power, based on the support of a mobilized mass population and the use of guerrilla warfare, and ultimately mobile and even positional warfare as the revolution progresses.

(6) Adherence to a policy of self-reliance, because 'revolution or people'sin any country is the business of the masses in that country and should be carried out primarily by their own effect and there is no other way.'" (Peter Van Ness, Revolution and Chinese Foreign Policy, pp. 70-72.)

27 "A report of the 'Palanan Incident' submitted by defense and military authorities to the House committee on national defense said that no single incident had done so much to focus the dangers posed by the 'reestablished' Communist Party of the Philippines and the NPA than the discovery of an abandoned ship and the subsequent recovery of military hardware and documents in innocent-looking Digoyo Bay. The discovery of these 'instruments of war' which were intended for the insurgents was a cause of deep concern because of its direct bearing on the national security, the report stated.

Underwraps. Before the Karagatan entered the picture, there had been intelligence reports of increased NPA activities in the mountain areas and shorelines of Palanan and nearby Dilasag-Casiguran in Quezon Province. Military authorities, for well-placed reasons, had kept these reports under wraps. But a few of them leaked out. For instance, a coded dispatch from Task Force Saranay mentioned a submarine unloaded some 200 men and while off Dinapique Point, north of Palanan.

While skeptical newsmen skimmed through the reports, they came across recorded instances of actual operations: last May 19, a big number of NPA's arrived and encamped in the vicinity of the Divinisa River. On May 26, a ship unloaded about 200 sacks of rice, firearms and ammunition at the vicinity of Digollorin. Shipside unloading was effected and cargo ferried aboard small boats and bancas.

Two days later, on May 28, a powerboat painted red, white and blue with a Philippine flag flying astern, reconnoitered from Dinatadmo to Divinisa Point.Fishermen from barrio Maligaya, Palanan, were among those forced to unload food and military supplies. About the second week of June, another landing of supplies took place there.

Programs of action. By this time, Brig. Gen. Tranquilino Paranis, Saranay commander, started to move some of his men from task force headquarters in Echague, Isabela, to the Palanan area. On June 18, a patrol of the task force encountered a group of NPA's in barrio Taringsing, Cordon town. Here government troops recovered CCP documents outlining programs of action for 1972. The documents according to military analysts, contained timetables calling for the intensification of sabotage, violence and attacks on military camp and other government installationd from July to December. On July 3, information was received that an unidentified vessel had been seen off Digoyopoint. Paranis relayed the message to Brig. Gen. Tomas Diaz at First PC Zone headquarters in Camp Olivas, Pampanga. From then on until army intellegence raided the home of a sister of one of the Karagatan Fishing Co., in Cainta, Rizal and stumbled on stacks of communist propaganda materials, the Karagatan had exploded on the public face in bold glaring headlines.

What bothered army authorities most was not only the actual landing of about 3,000 rifles of the M-14 type of which 737 had already been recovered by troops who stormed Hill 225 in Palanan and also seized 60,000 rounds of ammunition and another 30 boxes of ammunition of rocket launchers. It was the presence of the rockets themselves. The 40 mm rockets are high-explosive anti-tank weapons. They appear to be copies of the Soviet RPG-2 while the rocket launchers are prototypes of the Soviet RPG-2 anti-tank launchers used by the Vietcong.

The landing of military hardware in enormous quantities have multiplied the dangers of the CCP-Maoist faction, the military said. Armed high powered weapons and with sufficient ammunition, the insurgents have become a more potent force to contend with. This has emboldened them to intensify operations with the use of new recruits. The new recruits have been trained in the use of high explosives and were to he unleashed on the population centers of Greater Manila as part of the continuing September-October plan that includes the bombing of Congress, the Constitutional Convention, City Hall, public utilities, department stores and movie houses. The recruits were to seek sanctuary in safe houses installed for them by the NPA in Caloocan City the army asserted." (Time-table for Terror, PACE, Vol. 1, No. 52, September, 1972).

28 "The Communists have no scruples against sabotage, terrorism, assassination, or mob disorder. ... The Communist recognizes that an established government in control of modern technology cannot be overthrown by force until it is about ready to fall of its own weight." Revolution is, therefore. "not a sudden episode but as the consummation of a long process." (Per Mr. Justice Jackson, Dennis v. United States, 341 U.S. 564, 565, 95 L.ed 1181.)

29 The Supreme Court and the Commander-in-Chief, 1`951, Cornell University Press, p. 36.

30 "Not even the aerial attack upon Pearl Harbor close the courts or of its own force deposed the civil administration, yet it would be common understanding of men that those agencies which are charged with the national defense surely must have authority to take on the spot some measures which in normal times would be ultra vires."

x x x           x x x          x x x

When one considers certain characteristics of modern war, mobility on land, surprise from the air, sabotage, and the preparation of fifth columns — it must be apparent that the dictum that 'martial rule cannot arise from a threatened invasion' is not an adequate definition of the extent of the war power of the United States. An Army today has a dispersion in depth quite unknown in our Civil War. Thus Under Secretary of War Patterson, in stressing the need for a state guard to protect installations in the rear, pointed to 'the fact that the wars of today know no front line; that a tiny village hundreds of miles behind the theoretical front may suddenly become the scene of desperate and blazing action.' If the problem were to arise today it seems fair to assume that the Supreme Court would not hold to the letter of Justice Davis' opinion. Just as in the construction of the commerce and other grants of national power the Court of late has notably sought to make them adequate to the conditions which we face, almost certainly it would so construe the war power as to include all that is requisite 'to wage war successfully.'" (Charles Fairman, Law of Martial Rule, 55 Harvard Law Review, 1287.)

31 Notes on the New Society, pp. 29-30.

32 Dr. Abelardo Samonte, Inaugural Address, U.P. Los Baños, Jan. 11, 1974.

33 Stewart v. Kahn, 11 Wallace 493, 506.

34 Pollock vs. Farmer's Loan & T. Co. (1895) 157 U.S. 429, 39 L. ed. 759; See also Legal Tender cases (1884) 110 U.S. 421, 28 L. ed. 204, 70 A.L.R. 30.

35 State ex rel. Miller vs. Taylor (1911) 22 N.D. 362, 133 N.W. 1046.

36 During the Civil War in the United States, the writ of habeas corpus was suspended and many thousands of persons suspected of disloyalty to the Union were interned. (J. Randall & D. Donald, The Civil War and Reconstruction, 301 [1961]). It must be noted that the Habeas Corpus Act of 1863 of the United States required that lists of political prisoners be furnished to the judges of the federal courts; limited the duration of detention to one session of the grand jury, at the end of which courts were to order the release of those prisoners who had not been indicted for a crime. However, during the Civil War the Habeas Corpus Act was virtually ignored by President Lincoln, and the arrest, confinement, and release of prisoners continued as if it had not been passed. (Lee J. Randall & D. Donald, supra, p. 306).

37 There are three reasons advanced why this was found necessary. "First, the evidence to satisfy the requirements of legal procedure will blow the cover of police agents who have penetrated Communist open-front organizations. Further, the possibility of prosecution assumes that participation in Communist conspiratorial activities is a legal offense, which it is not in most countries. Third, to wait for the Communist activists to engage in overtly illegal action, for example, riots and other sorts of violence before prosecution, will give them a political advantage which few governments of the new states of Asia can afford. For by then the political situation would have deteriorated to a state of acute instability, which in turn would probably have caused economic decline due to loss of confidence. Should political instability become endemic serious doubts will creep into men's minds as to who would merge the winner. This can make the problem of control of subversion, for which public confidence and co-operation are important, a very acute one.

The power of arrest and detention without trial is, therefore, a necessary weapon in the fight against Communists in the newly established Asian states. It is, however, of the utmost importance that the highest standards of conduct on the part of the secret police are maintained. There should be checks, in the form of review committees consisting of lawyers and professional men, on the actions of the police. These checks should be real and not perfunctory measures. Nothing would be more favorable to the growth of Communist influence than extensive and indiscriminate use of the powers of detention. For this will generally cause widespread resentment against the authorities, which the Communist underground can use to stoke the fires of revolution. Further, it is important that police action is limited to really worthwhile targets the thinkers and the planners, the able propagandists and the organization men. Ninety-nine per cent of those who engage in Communist open-front activities are not worth detaining, not even the second echelon activists and the musclemen on whom the Communists depend to discipline their followers. They are the expendables and can be replaced without much difficulty, unlike the thinker and the plotter, and their detention serves no purpose beyond creating unnecessary disaffection among their families." (Goh Keng Swee: Minister of Defense of the Interior in Singapore, The Nature and Appeal of Communism in Non-Communist Asia Countries.)

38 Developments-National Security, Vol. 85, Harvard Law Review, March 1972, No. 5, p. 1313.

39 Zemel v. Rusk, 381 U.S. 1 [1965] upheld the constitutionality of the Cuba area restriction.

40 Charles Fairman, Martial Rule and the Suppression of Insurrection.

41 Miguel Cuaderno, Sr., Martial Law and the National Economy, 1974 Ed. Delegate to the 1934 and 1971 Constitutional Conventions, member of the Sub-Committee of Seven that finalized the draft of the 1935 Constitution.

42 Modern Political Constitutions, p. 55.

43 Vol. I, The Philippine Constitution, Debates on the First Draft of the Constitution, p. 157.

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Separate Opinions

ESGUERRA, J.:

A. PRELIMINARY STATEMENT

On September 21, 1972, the President issued Proclamation No. 1081 placing the whole Philippines, under martial law. This proclamation was publicly announced by the President over the and radio on the evening of September 21, 1972. The grounds for the proclamation are recited in detail in its preamble, specifically mentioning various acts of insurrection and rebellion already perpetrated and about to be committed against the Government by the lawlesselements of the country in order to gain political control of the state. After laying down the basis for the establishment of martial law, the President ordered:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines. by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

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

Issued shortly after the proclamation was General Order No. 2, followed by No. 2-A, dated September 26, 1972, to which was attached a list of the names of various persons who had taken part in the various acts of insurrection, rebellion and subversion mentioned in the proclamation, and given aid and comfort in the conspiracy to seize political and state power in the country and take over the government by force. They were ordered to be apprehended immediately and taken into custody by the Secretary of National Defense who was to act as representative of the President in carrying out martial law.

The petitioners herein were on September 22 and 23, 1972, arrested and taken into military custody by the Secretary of National Defense pursuant to General Order No. 2-A of the President for being included in said list as having participated, directly or indirectly, or given aid and comfort to those engaged in the conspiracy and plot to seize political and state power and to take over the Government by force. They ask this Court to set them at liberty, claiming that their arrest and detention is illegal and unconstitutional since the proclamation of martial law is arbitrary and without basis and the alleged ground therefor do not exist and the courts are open and normally functioning.

For the respondents the Solicitor General in his answer maintains that Proclamation No. 1081 is Constitutional and valid, having been issued in accordance with the Constitution; that the orders and decrees issued thereunder are valid; that the arrest and detention of petitioners pursuant thereto is likewise valid, legal and constitutional, and that this Court should refrain from issuing the desired writs as these cases involve a political question.

After joinder of issues, these cases were heard on September 26 and 29, 1972, and on October 6, 1972, followed by the filing of Memoranda and Notes on the arguments of both parties.

After submission of these cases for decision, petitioner Ramon W. Diokno filed a motion to be allowed to withdraw his petition. To the motion is attached a handwritten letter of said petitioner to his counsel stating the reasons why he wished to withdraw his petition. The principal reasons advanced by him for his action are his doubts and misgivings on whether he can still obtain justice from this Court as at present constituted since three of the Justices among the four who held in the ratification cases that there was no valid ratification of the New Constitution signed on November 30, 1972 and proclaimed ratified by the President on January 17, 1973 (the then Chief Justice having retired), had taken an oath to support and defend the said constitution; that in filing his petition he expected it to be decided be the Supreme Court under the 1935 constitution, and that with the oath taking of the three remaining members, he can no longer expect to obtain justice.

After the motion to withdraw had been deliberated upon by the Court, seven justices voted to grant and five voted to deny the motion. There being no majority to grant the motion, it was denied. Those who voted to deny the motion are of the view that it is not simply a matter of right to withdraw because of the great public interest involved in his case which should be decided for the peace and tranquility of the nation, and because of the contemptuous statement of petitioner Diokno that this Court is no longer capable of administering justice to him. This question should no longer stand on the way to the disposition of these cases on the merits.

B. THE ISSUES.

Prescinding from the question of jurisdiction which the Solicitor General raised by reason of the President's General Order No. 3, dated September 22, 1972, as amended by General Order No. 3-A, dated September 24, 1972, which allowed the judicial courts to regularly function but inhibited them from taking cognizance of cases involving the validity, legality or constitutionality of the Martial Law Proclamation, or any decree, order or acts issued, promulgated or performed by the President or his duly authorized representative pursuant thereto, from which position he relented and he has, accordingly, refrained from pressing that issue upon the Court, the main issues for resolution are the validity of Proclamation No. 1081 declaring and establishing martial law and whether this Court can inquire into to veracity and sufficiency of the facts constituting the grounds for its issuance.

I maintain that Proclamation No. 1081 is constitutional, valid and binding; that the veracity or sufficiency of its factual bases cannot be inquired into by the Courts and that the question presented by the petitions is political in nature and not justiciable.

Proclamation No. 1081 was issued by the President pursuant to Article VII, Section 10, paragraph 2, of the Constitution of 1935, which reads as follows:

The President shall be commander-in-chief of all armed forces of the Philippines and, whether it becomes necessary, he may call violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.

This provision may, for present purposes, be called the Commander-in-Chief clause.

The above provision has no counterpart in the Constitution of the United States or in that of any state thereof except that of Alaska to a limited extent. To comprehend the scope and extent of the President's power to declare martial law, let us trace the background and origin of this provision.

To suppress the great rebellion in the United States, known as the Civil War which was aimed to wreck the Federal union, President Lincoln exercised powers not granted to him by the Constitution of the United States but pertaining to the congress. He had suspended the privilege of the writ of habeas corpus; proclaimed martial law in certain areas and Military Commissions were organized where it was deemed necessary to do so in order to subdue the rebels or prevent their sympathizers from promoting the rebellion. Lincoln justified his acts by saying:

I did understand ... that my oath to preserve the Constitution to the best of my ability imposed upon me the duty of preserving, by every indispensable means that government — that nation — of which that constitution was the organic law. Was it possible to lose the nation and yet preserve the Constitution? By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong, I assumed this ground, and now avow it ... (2 Nicholay and Hay, Abraham Lincoln Complete Works, 508 (1902)).

Sydney G. Fisher in his work entitled "Suspension of Habeas corpus During the War of the Rebellion," 3 Pol. Science Quarterly, expressed the same idea when he said:

... Every man thinks he has a right to live and every government thinks it has a right to live. Every man when driven to the wall by a murderous assailant will override all laws to protect himself, and this is called the great right of self-defense. So every government, when driven to the wall by a rebellion, will trample down a constitution before it will allow itself to be destroyed. This may not be constitutional law, but it is fact. (Pp. 454, 484-485)

But the difficulty occasioned by the absence of a constitutional power to suspend the privilege of the writ of habeas corpus and to proclaim martial law, which greatly hamstrung Lincoln in coping effectively with the civil law, was obviated when our own Constitution expressly provided for the grant of that presidential power (Art. VII, Section 10, par. 2). Unlike the legislative power under the Bill of Rights of our Constitution (Article III, Section 1, paragraph 14, 1935 Constitution), the President can suspend the privilege of the writ of habeas corpus and impose martial law in cases of imminent danger of invasion, insurrection or rebellion when the public safety requires it. The Congress could not have been granted the power to suspend in case of imminent danger as it is not by the nature of its office in a position to determine promptly the existence of such situation. It can only see or witness the actual occurrence thereof and when they happen, Congress is also empowered to suspend tile privilege of the writ of habeas corpus as an exercise of legislative power when the President falls to act; but under no circumstances can it declare martial law as this power is exclusively lodged in the President as Commander-in-Chief.

When the Philippine Constitution of 1935 was written, the framers decided to adopt the provisions of Section 3, paragraph 7, of the Jones Law, which became Article 111, Section 1, paragraph 14, of the 1935 Constitution, and those of Section 21 of the Jones Law which became Article VII, Section 10, paragraph 2, of the same. The Jones Law provisions read as follows:

Section 3, paragraph 7 of the Jones Law provided:
That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor-General, wherever during such period the necessity for such suspension shall exist.

And Section 21 of the same law in part provided that:

... (H)e (referring to the Governor-General) may, in case of rebellion or invasion, or imminent danger thereof, when the public safety requires it, suspend the privilege of the writ of habeas corpus, or place the Islands, or any part thereof, under martial law: Provided That whenever the Governor-General shall exercise this authority, he shall at once notify the President of the United States thereof, together with the attending facts and circumstances, and the President shall have power to modify or vacate the action of the Governor-General.

Before the Jones Law, the Philippine Bill of 1902 provided as follows:

That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor-General with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist.

(Section 2, par. 7).

The Philippine Bill of 1902 had no provision pertaining to the declaration of martial law.

The adoption of the Jones Law provisions was prompted by the prevailing sentiment among the delegates to the 1934-1935 Constitutional Convention to establish a strong executive, as shown by its proceedings reported by two of its prominent delegates (Laurel and Aruego) who recounted in their published works how the delegates blocked the move to subject the power to suspend the privilege of the writ of habeas corpus, in case of invasion, insurrections or rebellion, to the approval of the National Assembly, but did nothing to block, and allowed, the grant of the power, including that to declare martial law, to the President as Commander-in-Chief of the Armed Forces. What is evident from this incident is that when it comes to the suspension of the privilege of the writ of habeas corpus and establishment of martial law in case of the occurrence or imminent danger of the contingencies mentioned therein, and the public safety requires it, the clear intent was to exclusively vest in the President that power, whereas Congress can only suspend under the Bill of Rights provision when there is actual occurrence of these events for reasons already adverted to above. And when martial law is proclaimed, the suspension of the privilege of habeas corpus necessarily follows for. the greater power includes the less. Nobody will ever doubt that there are greater restrictions to individual liberty and freedom under martial law than under suspension of the privilege of the writ of habeas corpus. In the former he can even close the courts if necessary and establish in their place military commissions. In the latter, the action proceeds from the premise that the courts are open but cannot grant the writ.

When the Constitution of 1935 was being framed, the prevailing jurisprudence on the matter was that laid down in Barcelon vs. Baker, 5 Phil. 87. September 30, 1905. In that case the question presented and decided is identical to what is raised by the petitioners here. This (1905) Court ruled that the judiciary may not inquire into the facts and circumstance upon which the then Governor General suspended the privilege of the writ under Section 5 of the Philippine Bill of 1902, which granted him the same power now vested in the President, and that the findings of the Governor General were "final and conclusive" upon the courts. Aware of this rule, the framers of the 1935 Constitution granted to the President the powers now found in Article VII, Section 10, paragraph 2, of the 1935 Constitution.

On October 22, 1950, Proclamation No. 210 suspending the privilege of the writ of habeas corpus was issued by the late President Quirino. Assailed before this Court in Montenegro vs. Castañeda and Balao 91 Phil. 882, as unconstitutional and unfounded, this Court said:

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

But in Lansang vs. Garcia, L-33964, decided December 11, 1971, 42 SCRA, 448, this Court asserted the power to inquire into the constitutional sufficiency of the factual bases supporting the President's action in suspending the privilege of the writ of habeas corpus under Proclamation No. 889, dated August 21, 1971. In departing from the rule established in the Baker and Castañeda cases, this Court said:

The weight of Barcelon v. Baker, as a precedent, is diluted by two (2) factors, namely: (a) it relied heavily upon Martin v. Mott involving the U.S. President's power to call out the militia, which he being the commander-in-chief of all the armed forces may be exercised to suppress or prevent any lawless violence, even without invasion, insurrection or rebellion, or imminent danger thereof, and is, accordingly, much broader than his authority to suspend the privilege of the writ of habeas corpus, jeopardizing as the latter does individual liberty; and (b) the privilege had been suspended by the American Governor-General, whose act, as representative of the Sovereign, affecting the freedom of its subjects, can hardly be equated with that of the President of the Philippines dealing with the freedom of the Filipino people, in whom sovereignty resides, and from whom all government authority emanates. The pertinent ruling in the Montenegro case was based mainly upon the Barcelon case, and, hence, cannot have more weight than the same ...

I maintain that we should return to the rule in the Baker and Castañeda cases and jettison the Lansang doctrine which denies the grant of full, plenary and unrestricted power to the President to suspend the privilege of the writ of habeas corpus and declare martial law. This denial of unrestricted power is not in keeping with the intent and purpose behind the constitutional provision involved.

The Act of Congress of 1795 involved in Martin & Mott (12 Wheat 19 (1827)) which is the main prop of the Baker case, held inapplicable in Lansang cage, provided:

That whenever the United States shall be invaded or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger or scene of action, as he may judge necessary to repel such invasion ...

The distinction made by this Court between the power of the President to call out the militia and his power to suspend the privilege of the writ of habeas corpus and declare martial law does not warrant a different treatment. The important and decisive point to consider is that both powers are expressly conferred upon the President by the same Section, exercisable only upon the existence of certain facts and situations. Under the 1935 Constitution (Article VII, Section 10, paragraph 2,) both powers are embraced in the President's power as Commander-in-Chief of the Armed Forces.

The Baker decision should not have been emasculated by comparing the position then of the Governor General "as the representative of the Sovereign" in relation to the Filipinos who were its "subjects". Under prevailing conditions and democratic principles, there would be greater justification for relying on the judgment of the President of the Philippines who is the chosen representative of the Filipino people and hence more authoritative in speaking for the nation than on that of an American Governor General then who personified the burden of an imposed sovereignty upon us. And as the Executive of this Government who is charged with the responsibility of executing the laws, he is as much a guardian of the rights and liberties of the people as any court of justice. To judicially undercut the force and efficacy of the Baker and Montenegro doctrine is to ride rough shod over the intent of the framers of the 1935 Constitution. Parenthetically it may be stated that the Commander-in-Chief clause was retained in the 1973 Constitution.

Although the Lansang case tried to cushion the blow administered to the constitutional provision involved by adopting the test of reasonableness" in the exercise of the President's power, without meaning to substitute its judgment for that of the President, yet the effect of the ruling is so far reaching that it may lead to a serious confrontation between the Courts and the President. The power to inquire into the constitutional sufficiency of the factual bases of the habeas corpus proclamation (grounds for the issuance of which are the same as those for martial law) presupposes the power to know what are the facts to be tested by the constitutional provision. This is the essence of an inquiry; the determination of the constitutional sufficiency of those facts simply follows. Suppose this Court says they are not sufficient to justify martial law and the President says they are because the evidence on which he acted shows the existence of invasion, insurrection or rebellion, or the imminent danger thereof, what will happen? The outcome is too unpleasant to contemplate. Let us not try to repeat in our country what transpired between President Lincoln and Chief Justice Taney when the latter issued a writ of habeas corpus to set free one held by the military and President Lincoln practically said: Taney has issued his writ. Let him enforce it". Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md. 1861).

President Lincoln, in the face of the grave danger then to the nation, simply ignored it and nothing could be done about it.

The test of reasonableness, or absence of arbitrariness in the exercise of the presidential power, is all a play of words. The determination of the reasonableness of the act of the President calls for a consideration of the availability and choice of less drastic alternatives for the President to take, and when that is done the Court will in effect be substituting its judgment for that of the President. If the Court were to limit its powers to ascertaining whether there is evidence to support the exercise of the President's power, without determining whether or not such evidence is true, we would have the curious spectacle of this Court having no choice but to give its imprimatur to the validity of the presidential proclamation, as it did in the Lansang case where it merely accepted the reports of the military on the facts relied upon by the President in issuing Proclamation No. 889, without judicially determining whether or not the contents of those reports were true, In so doing, this Court simply displayed the miserable limits of its competence for having no means for checking whether or not those facts are true. It would have been more in keeping with the dignity, prestige and proper role of this Court to simply read and consider the bases for the suspension as stated in the various "whereases" of the Proclamation, and then determine whether they are in conformity with the constitution. This to me is the extent of its power. To transcend it is to usurp or interfere with the exercise of a presidential prerogative.

This Court should not spurn the reminder that it is not the source of the panacea for all ills affecting the body politic (Vera vs. Avelino, 77, Phil. 192). When a particular cure can come only from the political department, it should refrain from injecting itself into the clash of political forces contending for the settlement of a public question. The determination of when and how a constitutionally granted presidential power should be exercised calls for the strict observance of the time-honored principle of the separation of powers and respect for a co-equal, coordinate and independent branch of the Government. This is the basic foundation of the rule governing the handling of a political question that is beyond judicial competence (Alejandrino vs. Quezon, 46 Phil. 35; Cabili vs. Francisco, G. R. No. L-4638, May 8, 1951; Baker vs. Carr, 360 U.S. p. 186; 82 S. Ct. Rep. 69; 7 L. Ed. 2nd, 663). It is high time to reexamine and repudiate the Lansang doctrine and give the President the sole authority to decide when and how to exercise his own constitutional powers. A return to the sanity and wisdom of the Baker and Montenegro doctrine and a realization that judicial power is unwelcome when a question presents attributes that render it incapable of judicial determination, because the power to decide it devolves on another entity, is urgently needed. It is worthwhile recalling what this Court in its sobriety and wisdom, unperturbed by the formidable turmoils, the fierce passions and emotions and the stresses of our times, said in the Baker case: (The term "Governor General" should read "President").

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

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

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

It is the duty of the legislative branch of the Government to make such laws and regulations as will effectually conserve peace and good order and protect the lives and property of the citizens of the State. It is the duty of the Governor-General to take such steps as he deems wise and necessary for the purpose of enforcing such laws. Every delay and hindrance and obstacle which prevents a strict enforcement of laws under the conditions mentioned necessarily tends to jeopardize public interests and safety of the whole people. If the judicial department of the Government, or any officer in the Government, has a right to contest the orders of the President or of the Governor-General under the conditions above supposed, before complying with such orders, then the hands of the President or the Governor-General may be tied until the very object of the rebels or insurrectos or invaders has been accomplished. But it is urged that the President, or the Governor-General with the approval of the Philippine Commission, might be mistaken as to the actual conditions; that the legislative department — the Philippine Commission — might, by resolution, declare after investigation, that a state of rebellion, insurrection, or invasion exists, and that the public safety requires the suspension of the privilege of the writ of habeas corpus, when, as a matter of fact, no such conditions actually existed; that the President, or Governor-General acting upon the authority of the Philippine Commission, might by proclamation suspend the privilege of the writ of habeas corpus without there actually existing the conditions mentioned in the act of Congress. In other words, the applicants allege in their argument in support of their application for the writ of habeas corpus that the legislative and executive branches of the Government might reach a wrong conclusion from their investigations of the actual conditions, or might, through a desire to oppress and harass the people, declare that a state of rebellion, insurrection, or invasion existed and that public safety required the suspension of the privilege of the writ of habeas corpus when actually and in fact no such conditions did exist. We can not assume that the legislative and executive branches will act or take any action based upon such motives.

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

C. THE CONCLUSION

The resolution of the question of validity of Proclamation No. 1081 and all acts done under it, by delving into the sufficiency of the grounds on which the declaration of martial law is premised, involves a political question. Whether or not there is constitutional basis for the President's action is for him to decide alone. I take it for a fact that he is not an irresponsible man and will act reasonably and wisely, and not arbitrarily. No President in his right mind will proclaim martial law without any basis at all but merely to fight the hobgoblins and monsters of his own imagination. In the exercise of that power this Court should not interfere or take part in any manner, shape or form, as it did in the Lansang case. When this Court required the Army officers, who furnished the President with the facts on which he acted, to present proofs to establish the basis of the habeas corpus suspension, this Court practically superimposed itself on the executive by inquiring into the existence of the facts to support his action. This is indeed unfortunate. To inquire is to know the facts as basis of action. To inquire is to decide, and to decide includes the power to topple down or destroy what has been done or erected. This is the ultimate effect of the Lansang doctrine. .

When the security and existence of the state is jeopardized by sophisticated clandestine and overseas means of destruction and subversion; when open avowals of attempts to dismember the Philippines are politically and financially encouraged and supported by foreign powers; when the advocates of a sinister political and social ideology are openly storming even the bastions of military power and strength with the use of smuggled arms furnished by those who wish this nation ill, let us leave to the Executive the unhampered determination of the occasion for the exercise of his power, as well as the choice of the weapons for safeguarding the nation. This Court should not, by a process of subtle reasoning and rhetorical display of legal erudition stand on the way to effective action by virtually crippling him. Instead, it should be a rock of refuge and strength for those who are called upon to do battle against the forces of devastating iconoclasm and ruthless vandalism that ruled our streets, our public squares and our schools before the establishment of martial law. Instead of imposing cramping restrictions on the executive and thereby giving the enemy aid and comfort, this Court should allow the political department a full and wide latitude of action.

It follows that all orders, decrees or acts of the President under the Martial Law Proclamation, including those of the respondent Secretary of National Defense as his authorized representative, are valid and binding. The people have ratified those acts by the adoption and ratification of the New Constitution as proclaimed by the President on January 17, 1973, and by the Referendum held on July 27-28,1973. For us to declare them valid in our decision now has become merely an anti-climax after we have decided in the Javellana case that the people have ratified and accepted the New Constitution and there remains no more judicial obstacle to its enforcement.

Consequently, the arrest and detention of the petitioners, including their further detention after the ratification and acceptance of the New Constitution, and even up to the present, are valid and constitutional. The duration of their detention, especially as regards petitioner Jose W. Diokno, is a matter addressed to the sound discretion of the President. As to petitioner Benigno S. Aquino, Jr., his detention is no longer open to question as formal, charges of subversion, murder and illegal possession of firearms have been filed against him with the proper Military Commission.

D. THE JUDGMENT

By this separate opinion I might incur the displeasure of my senior brethren who conceived and labored in bringing forth the Lansang decision which I am openly advocating to be discarded because this Court practically interfered with the exercise of a purely executive power under the guise of inquiring into the constitutional sufficiency of the factual bases of the habeas corpus proclamation. By requiring the representatives of the President to present evidence to show the reasonable exercise of his power, I repeat that this Court trenched upon a constitutionally granted power of the President. In expressing my honest thoughts on a matter that I believe is of supreme importance to the safety and security of the nation, I did so unmindful of the possible condemnation of my colleagues and fearless of the judgment of history.

FOR ALL THE FOREGOING, I vote to dismiss all petitions.

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Separate Opinions

FERNANDEZ, J.:

I

PROLOGUE

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

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

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

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

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

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

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

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

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

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

II

THE MARTIAL LAW PROCLAMATION

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

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

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

x x x           x x x          x x x

III

ARREST OF THE PETITIONERS

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

Pursuant to Proclamation Order No. 1081, dated September 21, 1972, and in my capacity as Commander-in-Chief of all the Armed Forces of the Philippines, I hereby order you as Secretary of National Defense to forthwith arrest or cause the arrest and take into your custody the individuals named in the attached lists for being participants or for having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the government by force, the extent of which has now assumed the proportion of an actual war against our people and our legitimate government and in order to prevent them from further committing acts that are inimical or injurious to our people, the government and our national interest, and to hold said individuals until otherwise so ordered by me or by my duly designated representative.

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

1. Such persons as may have committed crimes and offenses in furtherance or on the occasion of or incident to or in connection with the crimes of insurrection or rebellion as defined in Articles 134 to 138 of the Revised Penal Code, and other crimes against public order as defined in Articles 146, 147, 148, 149, 151, 153, 154, 155, and 156 of the same Code;

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

x x x           x x x          x x x

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

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

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

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

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

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

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

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

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

IV

THE PETITIONS FOR WRITS OF HABEAS CORPUS

(a) The Grounds Therefor:

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

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

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

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

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

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

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

(b) Present Status of Petitioners:

As things now stand, the different petitioners may be divided into four (4) groups:

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

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

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

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

V

ANSWER OF RESPONDENTS:

THE ISSUES

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

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

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

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

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

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

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

VI

ON PETITIONER DIOKNO'S MOTION
TO WITHDRAW

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

(a) Arguments Pro and Con:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) The ratification cases were nevertheless dismissed.

The petitioner added "undeniable facts":

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

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

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

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

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

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

(b) My original stand: Motion should be denied:

Reasons:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the case of Avelino vs. Cuenco (93 Phil. 17), the Supreme Court had very sound reasons to resolve on March 4, 1949 not to decide whether or not Senator Cuenco had validly been elected Senate President. The Court ruled that the subject matter of the quo warranto proceeding to declare the petitioner the rightful President of the Philippine Senate and to oust the respondent was not a matter for the Supreme Court in view of the separation of powers doctrine, the political nature of the controversy, and the constitutional grant to the Senate of the power to elect its own President. The power to elect its President should not be interfered with nor taken over by the judiciary.

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

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

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

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

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

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

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

VII

COURTS DUTY TO DECIDE ALL
IMPORTANT ISSUES — ON THE PETITIONS
OF THE PETITIONERS

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

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

There are, therefore, those who would limit a decision solely on the Transitory Provisions of the 1973 Constitution. The exercise of martial law powers under Article VII, Section 10, paragraph 2 of the former Constitution or Article VII, Section 12 of the 1973 Constitution have been subjected to intensive, searching, and well-published challenges.1If We decide the case solely on the transitory provision, uncertainty and confusion about martial law would remain. The provisions on martial law would still be unexplained and unresolved by this Court. It is easy to see the patent undesirability of such a situation.

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

VII

THE THREE PRINCIPAL ISSUES

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

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

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

IX

PROCLAMATION NO. 1081; A DEVIATION
FROM THE TRADITIONAL CONCEPT OF
MARTIAL LAW; ARGUMENTS ON ITS
VALIDITY

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

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

(a) What is martial law?

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

As good definitions as any that may have been made in the past are the following:

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

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

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

In another decision, it has been held that —

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

Other definitions may be cited:

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

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

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

A Philippine author has tried to reconcile the many definitions.

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

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

(b) Modern Martial Law.

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

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

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

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

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

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

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

(c) Respondents' Arguments

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

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

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

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

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

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

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

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

(d) Petitioners' Arguments:

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

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

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

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

After citing the foregoing, petitioners asked this Court to take judicial notice of the following:

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

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

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

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

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

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

The petitioners state why Proclamation No. 1081 is unconstitutional:

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

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

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

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

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

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

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

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

As the President described the situation in his speech of September 23, 1972:

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

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

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

(e) Authorities cited by the Parties —

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

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

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

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

(b) More arguments of the Respondents:

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

(a) More arguments of the petitioners:

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

X

POLITICAL QUESTIONS AND COURTS
JURISDICTION OVER THEM

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

What is a political question?

In Mabanag vs. Lopez (78 Phil. 1, 4), this Court recognized the problems in trying to make a definition:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

XI

PROCLAMATION NO. 1081 IS VALID —
IT IS POLITICAL IN NATURE AND THEREFORE
NOT JUSTICIABLE

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

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

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

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

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

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

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

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

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

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

In J. M. Tuazon & Co., Inc. vs. Land Tenure Administration, 31 SCRA p. 413,423, this Court ruled:

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

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

The Philippine Bill of 1902 has no provision on martial law, although it provided:

SECTION 5. ...

That the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion, insurrection, or invasion the public safety may require it, in either of which events the same may be suspended by the President, or by the Governor, with the approval of the Philippine Commission, whenever during such period the necessity for such suspension shall exist.

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

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

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

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

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

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

As a matter of fact, in the Constitutional Convention, Delegate Araneta proposed the following provisions:

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

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

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

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

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

During the debates on the first draft, Delegate Francisco proposed an amendment inserting, as a fourth cause for the suspension of the writ of habeas corpus, imminent danger of the three causes included herein. When submitted to a vote for the first time, the amendment was carried.

After his Motion for a reconsideration of the amendment was approved, Delegate Orense spoke against the amendment alleging that it would be dangerous to make imminent danger a ground for the suspension of the writ of habeas corpus. In part, he said:

Gentlemen, this phrase is too ambiguous, and in the hands of a President, who believes himself more or less a dictator, it is extremely dangerous; it would be a sword with which he would behead us.

In defense of the amendment, Delegate Francisco pointed out that it was intended to make this part of the bill of rights conform to that part of the draft giving the President the power to suspend the writ of habeas corpus also in the case of an imminent danger of invasion or rebellion. When asked by Delegate Rafols if the phrase, imminent danger, might not be struck out from the corresponding provision under the executive power instead, Delegate Francisco answered:

Outright, it is possible to eliminate the phrase, imminent danger thereof, in the page I have mentioned. But I say, going to the essence and referring exclusively to the necessity of including the words, of imminent danger or one or the other, I wish to say the following: that it should not be necessary that there exist a rebellion, insurrection, or invasion in order that habeas corpus may be suspended. It should be sufficient that there exists not a danger but an imminent danger, and the word, imminent should be maintained. When there exists an imminent danger, the State requires for its protection, and for that of all the citizens the suspension of the habeas corpus.

When put to a vote for the second time, the amendment was defeated with 72 votes against and 56 votes in favor of the same. (I Aruego's Framing of the Philippine Constitution, 180-181)

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

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

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

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

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

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

Why should We honor the President's findings?

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

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

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

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

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

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

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

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

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

I am, of course, aware of the Chicot County Drainage District vs. Baxter State Bank (308 U.S. 371, 374) doctrine which this Court adopted in Municipality of Malabang vs. Pangandapun Benito, et al. (27 SCRA 533, 540):

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

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

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

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

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

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

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

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

In the United States vs. Reynolds, 345 U. S. 1 (1952), dealing with a claimant's demand for evidence in a damage case, against the Government, the Court said:

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

No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based.
(United States, Petitioner, vs. Richard M. Nixon, President of the united State et al.; Richard M. Nixon, President of the United States, Petitioner, vs. United States; July 24, 1974; Nos. 73-1766 and 73-1834; Supreme Court of the United States)

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

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

XII

GRANTING THAT PROCLAMATION NO. 1081
IS NOT POLITICAL BUT JUSTICIABLE,
IT IS STILL VALID BECAUSE THE PRESIDENT
HAS NOT ACTED ARBITRARILY IN ISSUING IT

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

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

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

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

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

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

... that judicial inquiry into the basis of the questioned proclamation can go no further than to satisfy the Court not that tile President's decision is correct and that public safety was endangered by the rebellion and justified the suspension of the writ, but that in suspending the writ, the President did not act arbitrarily.

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

... If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus oficio ... With the wisdom of the policy adopted, with the adequacy or practicality of the law enacted to forward it, the courts are both incompetent and unauthorized to deal ....

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

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

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

XIII

THE CONTINUATION (AND EVENTUAL LIFTING)
OF THE STATE OF MARTIAL
LAW IS A POLITICAL QUESTION

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

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

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

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

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

Article IX of the new Constitution on the Prime Minister and the Cabinet provides:

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

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

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

At this point, modesty and prudence should inhibit me from advancing my own views as the only member of this Tribunal who was a delegate to the 1971 Constitutional Convention. In Vera vs. Avelino (77 Phil. 192), this Court stated — "The theory has been proposed — modesty aside — that the dissenting members of this Court who were delegates to the Constitutional Convention and were "co-authors of the Constitution" "are in a better position to interpret" that same Constitution in this particular litigation.

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

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

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

And if we should (without intending any desparagement) compare the Constitution's enactment to a drama on the stage or in actual life, we would realize that the intelligent spectators or readers often know as much, if not more, about the real meaning, effects or tendencies of the event, or incidents thereof, as some of the actors themselves, who sometimes become so absorbed in fulfilling their emotional roles that the fail to watch the other scenes or to meditate on the larger aspects of the whole performance, or what is worse, become so infatuated with their lines as to construe the entire story according to their prejudices or frustrations. Perspective and disinterestedness help certainly a lot in examining actions and occurrences. "Come to think of it, under the theory thus proposed, Marshall and Holmes (names venerated by those who have devoted a sizeable portion of their professional lives to analyzing or solving constitutional problems and developments) were not so authoritative after all in expounding the United States Constitution — because they were not members of the Federal Convention that framed it! (pp. 215-216)"

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

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

x x x           x x x          x x x

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

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

x x x           x x x          x x x

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

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

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

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

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

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

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

Republic of the Philippines
1971 CONSTITUTIONAL CONVENTION
Manila

COMMITTEES ON CIVIL AND POLITICAL RIGHTS
AND EXECUTIVE POWER

MINUTES OF THE MEETING
(Joint Public Hearing)

WEDNESDAY, SEPTEMBER 8, 1971
Session Hall, Manila Hotel

COMMITTEE ON CIVIL AND POLITICAL RIGHTS

PRESENT

COMMITTEE ON EXECUTIVE POWER

PRESENT

Chairman Delegate De la Serna	Vice Chairman Delegate Abueg:
Members:
1. Delegate Abad	9. Delegate Pepito
2. Delegate Badelles	10. Delegate Reyes C.
3. Delegate Garcia L. P.	11. Delegate Santillan
4. Delegate Gunigundo	12. Delegate Sevilia
5. Delegate Guzman V.	13. Delegate Sumulong
6. Delegate Laggui	14. Delegate Veloso I.
7. Delegate Mendiola	15. Delegate Zafra
8. Delegate Opinion

Chairman: Delegate Espina	Vice Chairman: Delegdate Exmundo
Members:
1. Delegate Corpus	3. Delegate Santillan
2. Delegate Garcia L. M.	4. Delegate Zafra
Non-Members:
1. Delegate Benzon	5. Delegate Mastura
2. Delegate Calderon C.	6. Delegate Rosales
3. Delegate Caliwara	7. Delegate Yancha
4. Delegate Castillo

Guest:

Justice Enrique Fernando

OPENING OF THE MEETING

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ADJOURNMENT OF MEETING

17. The meeting was adjourned at 12 noon.

PREPARED BY:
HONORABLE MACARIO CAMELLO

Typed by : Cynthia B. Arrazola
Proofread by : E. de Ocampo/V. M. Umil

Republic of the Philippines
1971 CONSTITUTIONAL CONVENTION
M a n i l a

COMMITTEES ON CIVIL AND POLITICAL RIGHTS AND
EXECUTIVE POWER

MINUTES OF THE JOINT MEETING

No. ---
WEDNESDAY, SEPTEMBER 15, 1971

CIVIL AND POLITICAL RIGHTS

PRESENT

Chairman: Delegate De la Serna	Vice Charman: Delegate Abueg
Members:
1. Delegate Abalos E.	9. Delgate Opinion
2. Delegate Abad	10. Delegate Padua
3. Delegate, Aruego	11. Delegate Pepito
4. Delegate Calderon J.	12. Delegate Reyes C.
5. Delegate Gunigundo	13. Delegate Santos O.
6. Delegate Guzman	14. Delegate Siguion Reyna
7. Delegate Laggui	15. Delegate Zafra
8. Delegate Mendiola
Non-Members:
1. Delegate Adil	6. Delegate Garcia L.
2. Delegate Azcuña	7. Delegate Molina
3. Delegate Claver	8. Delegate Rama.
4. Delegate De Pio	9. Delegate Seares.
5. Delegate Garcia E.	10. Delegate Tupaz D.
Guest:
Senator Jose W. Diokno

ABSENT

Members:

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

 

EXECUTIVE POWER

PRESENT

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

ABSENT

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

OPENING OF MEETING

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

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

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

4. Senator Diokno thanked the joint Body for giving him an opportunity to discuss with them the power to suspend the privilege of the writ of habeas corpus and the power to declare martial law. To be able to resolve the problem, he propounded the questions: (1) should the President have the power to suspend the privilege of the writ of habeas corpus, (2) assuming he was given the power, under what circumstances should he be allowed to exercise it, and (3) what safeguards should be placed upon the exercise of that power. He surmised that in his opinion, if the only legal basis for the grant of the power is to bide time to be able to bring persons to court for it to decide on the matter, as such time is always available to the government, he saw no reason in suspending the privilege of the writ of habeas corpus, since the same objective can be attained by the imposition of martial law, which is not a graver step and is not gravely abused in the practical point of view that no President will declare martial law unless he can have the armed forces agree with him that there is actual invasion, rebellion or insurrection. He stated that the present Constitution only allowed the suspension of the privilege in cases of extreme emergency affecting the very sovereignty of the State, which in his belief, is only in cages of invasion, rebellion or insurrection. He did not agree that there should be a safeguard provided prior to the issuance of the proclamation suspending the privilege of the writ, but rather after the writ has been suspended, by requiring either the courts or Congress to pass upon the necessity of the suspension of the writ. He dissented with the idea that where should be a definite time period for its validity, because it is difficult to determine what should be an adequate period, however, the Supreme court or Congress could always be required to act within a definite period on the validity of the suspension which he considered, already a proper safeguard.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ADJOURNMENT OF MEETING

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

PREPARED AND EDITED BY: (Sgd.) HON. CELSO P. TABUENA

ATTESTED BY:

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

Typed by: Alice G. Aquino

Proofread by: Salome Ortiz/Vivencio Gopole

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

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

The 1973 Constitution joined together the Executive and the Legislative departments of the government, which were distinctly separate from each other under the 1935 Constitution. The New Charter provides: "The legislative power shall be vested in a National Assembly." (Article VIII, Sec. 1); "The Executive power shall be exercised by the Prime Minister with the assistance of the Cabinet." (Article IX, Sec. 1); "The Prime Minister shall be elected by a majority from among themselves." "(Article IX, Sec. 3); "The Prime Minister shall appoint the Members of the Cabinet who shall be the heads of ministries at least a majority of whom shall come from the National Assembly. Members of the Cabinet may be removed at the discretion of the Prime Minister." (Article IX, Sec. 4).

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

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

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

TRANSCRIPT OF THE PROCEEDINGS OF THE 166-MAN SPECIAL COMMITTEE — MEETING NO. 1
OCTOBER 24, 1972
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PAGE 88 – VOL. XVI – NO. 8
DELEGATE TUPAZ (A.): Section 4 —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SOME DELEGATES: No objection! No objection!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Article IX, Section 16, another new provision reads —

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

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

XIV

GRANTING THAT THE CONTINUATION OF
MARTIAL LAW IS NOT POLITICAL BUT
JUSTICIABLE, IT IS STILL VALID UNDER
THE TEST OF ARBITRARINESS

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

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

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

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

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

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

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

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

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

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

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

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

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

A Manifestation dated May 13, 1974 from the respondents states:

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

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

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

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

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

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

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

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

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

XV

MARTIAL LAW AND THE SUSPENSION OF
THE WRIT OF HABEAS CORPUS

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

The proclamation of martial law is conditioned on the occurrence of the gravest contingencies. The exercise of a more absolute power necessarily includes the lesser power especially where it is needed to make the first power effective. "The suspension enables the executive, without interference from the courts or the law to arrest and imprison persons against whom no legal crime can be proved but who may, nevertheless, be effectively engaged in morning the rebellion or inviting the invasion, to the imminent danger of the public safety." (Barcelon v. Baker, 5 Phil. 87, 112). It would negate the effectivity of martial law if detainees could go to the courts and ask for release under the same grounds and following the same procedures obtaining in normal times. The President in the dispositive paragraph of Proclamation No. 1081 ordered that all persons presently detained or others who may thereafter be similarly detained for the crimes of insurrection and rebellion and all other crimes and offenses committed in furtherance or on the occasion or in connection therewith shall be kept under detention until otherwise ordered released by him or his duly designated representative. Under General Order No. 2-A, the President ordered the arrest and taking into custody of certain individuals. General Order No. 2-A directs that these arrested individuals will be held in custody until otherwise ordered by the President or his duly designated representative. These general orders clearly show that the President was precluding court examination into these specified arrests and court orders directing release of detained individuals.

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

XVI

THE EFFECT OF ARTICLE XVII, SEC 3
(2) OF THE NEW CONSTITUTION

There is another reason for denying the instant petitions.

Article XII Section 3, Subsection (2) of the present Constitution (ratified on January 17, 1973) has a transitory provision which reads:

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

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

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

TRANSCRIPT OF THE PROCEEDINGS OF THE 166-MAN SPECIAL COMMITTEE — MEETING No. 33
NOVEMBER 26, 1972

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

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

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

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

XVII

A FEW OTHER POINTS

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

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

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

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

XVIII

THE REMEDIES AGAINST CLEAR ABUSE OF POWER .

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

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

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

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

XIX

C O N C L U S I O N

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

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

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

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

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

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

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

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

WHEREFORE, I vote to render judgment: (1) To grant the Diokno motion to withdraw his petition for habeas corpus;

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

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

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

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

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Footnotes

1 General Order No. 2 reads as follows:

Pursuant to Proclamation No. 1081, dated September 21, 1972, and in my capacity as Commander-in-Chief of all the Armed Forces of the Philippines and for being active participants in the conspiracy to seize political and state power in the country and to take over the Government by force, the extent of which has now assumed the proportion of an actual war against our people and their legitimate Government and in order to prevent them from further committing acts that are inimical or injurious to our people, the Government and our national interest, I hereby order you as Secretary of National Defense to forthwith arrest or cause the arrest and take into custody the individuals named in the attached list and to hold them until otherwise so ordered by me or by my designated representative.

"Likewise, I do hereby order you to arrest or cause the arrest and take into custody and to hold them until otherwise ordered released by me or by my duly authorized representative, such persons as may have committed crimes and offenses in furtherance on the occasion of or incident to or in connection with the crimes of insurrection or rebellion, as well as persons who have committed crimes against national security and the law of nations, crimes against the fundamental laws of the state, crimes against public order, crimes involving usurpation of authority, title, improper use of name, uniform and insignia, including persons guilty of crimes as public officers, as well as those people who may have violated any decree or order promoted by me personally or promulgated upon my direction."

* On the issue of withdrawal, "petitioner" refers to former Senator Jose W. Diokno and not any of the other petitioners.

** Although this Rule 17 falls under "Procedure in Courts of First Instance," it may also serve as a guide to this Court in resolving a question of this nature. In the Court of Appeals, and in the Supreme Court, "An appeal way be withdrawn as of right at any time before filing of appellee's brief. After that brief is filed the withdrawal may be allowed by the Court in its discretion ...." (Section 4, Rule 50; Section 1, Rule 56).

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

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

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Separate Opinions

MUÑOZ PALMA, J.:

2. In G.R. L-35539, Carmen I. Diokno, in behalf of her husband, Jose W. Diokno, petitioner:

Re "Motion to Withdraw Petition" dated
December 29, 1973:

I shall explain why I voted to grant the motion. I believe that a petition for habeas corpus basically involves the life and liberty of the petitioner, and, if for reasons of his own — the wisdom and/or correctness of which are best left to him to determine — he desires to withdraw the same and leave his present condition of indefinite detention as it is, such is his right which I as a fellow-human being and as a magistrate of the law should not deny him. My distinguished colleagues who opted to deny said "Motion to Withdraw" argue mainly that to grant the motion of petitioner Diokno is for the Court to accept the truth of his allegations and deny itself the opportunity to act on and resolve the basic issues raised in the Petition for habeas corpus which issues are of "utmost public importance" and involve "the very life and existence of the present Government under the new Constitution." What I can say is that the other Petitions for habeas corpus now being decided jointly in this Decision afford a forum where the legal and constitutional questions presented in Diokno's petition can very well he discussed, dissected to their minutes details, and decided by the Court. What concerns this writer most is that the thrust of Diokno's motion to withdraw is his belief that he "cannot reasonably expect either right or reason, law or justice" from this Court it being a new Court under the new Constitution, a different Court from the Supreme Court to which he originally applied for his release.1In plain and simple language, petitioner Diokno is bereft of faith in this Court and prefers that his fate be left undecided; who are we then to impose our will on him and force him to litigate under a cloud of distrust where his life and liberty are inextricably involved? Just as love is an emotion which springs spontaneously from the heart and never coerced into existence, so also is faith, trust, born and nurtured in freedom and never under compulsion. Thus, to deny petitioner Diokno's motion is to compel him to have faith in this Court; can we do so when faith has to be earned, and cannot be forced into being? Hence, my vote.

On the Merits of the Petition

Because petitioner Diokno's "Motion to Withdraw Petition" was considered denied as only seven Justices voted to grant it,2and his Petition for habeas corpus was to be decided on its merits, and at the time of the writing of this Opinion Diokno was in custody for almost two years without charges having been filed against him, I resolved to treat his Petition differently from that of the other petitioners who, during the pendency of these cases, were conditionally released from the prison camps of respondents. However, after completion of my Opinion but before the Decision in these cases could be promulgated on September 12, 1974, as scheduled, President Ferdinand E. Marcos ordered the release of petitioner, Jose W. Diokno, on September 11, 1974. * This development led the Court to dismiss the Petition of Jose W. Diokno for having become moot and academic, and forced me to revise my Opinion as it became unnecessary to discuss the issue of Diokno's continued detention.

THE FACTS

On September 21, 1972, President Ferdinand E. Marcos signed what is now known as Proclamation No. 1081 proclaiming a state of martial law in the Philippines, based inter alia on the following consideration:

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

The Proclamation thus concluded:

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the Constitution, do hereby place the entire Philippines as defined in Article I, Section 1 of the Constitution under martial law and, in my capacity as their commander-in-chief, do hereby command the armed forces of the Philippines, to maintain law and order throughout the Philippines, prevent or suppress all forms of lawless violence as well as any act of insurrection or rebellion and to enforce obedience to all the laws and decrees, orders and regulations promulgated by me personally or upon my direction.

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

On September 22, General Order No. 1 was issued from which we quote:

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

x x x           x x x          x x x

NOW, THEREFORE, I, Ferdinand E. Marcos, President of the Philippines, by virtue of the powers vested in me by the Constitution as Commander-in-Chief of the Armed Forces of the Philippines, do hereby proclaim that I shall govern the nation and direct the operation of the entire Government, including all its agencies and instrumentalities, in my capacity and shall exercise all the powers and prerogatives appurtenant and incident to my position as such Commander-in-Chief of all the armed forces of the Philippines.

Also on September 22, General Order No. 2 was signed by the President which provided:3

Pursuant to Proclamation Order No. 1081, dated September 21, 1972, and in my capacity as Commander-in-Chief of all the Armed Forces of the Philippines, I hereby order you as Secretary of National Defense to forthwith arrest and take into your custody the individuals named in the attached lists for being participants or having given aid and comfort in the conspiracy to seize political and state power in the country and to take over the government by force, the extent of which has now assumed the proportion of an actual war against our people and our legitimate government and in order to prevent them from further committing acts that are inimical or injurious to our people, the government and our national interest, and to hold said individuals until otherwise so ordered by me or by my duly designated representative. (emphasis supplied) .

Implementing General Order No. 2, respondent Secretary of National Defense, Hon. Juan Ponce Enrile, immediately effected the arrest of a good number of individuals among whom were the herein petitioners who, by reason of their arrest without charges having been filed against them, came to this Court to seek relief through their respective Petitions for habeas corpus, the earliest of which, L-35538, was filed in the morning of September 23, 1972.4 The Court in the respective Petitions promptly issued the Writ returnable to it, and required respondents to answer. With equal dispatch respondents filed their "Return to Writ and Answer to the Petition" in all the cases which contained a common "Special and Affirmative Defenses" reading as follows:

4. On September 21, 1972, the President of the Philippines, in the exercise of the powers vested in him by Article VII, section 10, paragraph 2 of the Constitution, issued Proclamation No. 1081 placing the entire Philippines under martial law;

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

6. Finally, the petition states no cause of action. (p. 21, rollo L-35546)

The Answer prayed that the petition be dismissed.

Pending resolution of these Petitions, petitioners, except for two, were released from custody on different dates under a "Conditional Release" Order of the same tenor as the following:*

5 December 1972

SUBJECT: Conditional Release
TO: Francisco Soc Rodrigo

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

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

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

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

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

6. Be guided accordingly.

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

PLEDGE

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

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

(SGD.) F. RODRIGO

Address: 60 Juana Rodriguez Quezon City
Tel. No. 70-25-66; 70-49-20 70-27-55
(p. 621, rollo L-35546)

Notwithstanding their release from detention, petitioners concerned did not withdraw their respective Petitions for habeas corpus, while petitioner Francisco Rodrigo filed a Manifestation dated November 27, 1973 stating that his release did not render his Petition moot and academic. (p. 620, rollo L-35546) The two petitioners who have not been released up to the present are Senator Benigno S. Aquino, Jr. against whom in the meantime certain criminal charges have been filed with Military Commission No. 2 and Senator Jose W. Diokno who has not been charged neither before a civil court nor a military tribunal or commission. *

THE ISSUES

These petitions being essentially for the issuance of the writ of habeas corpus the fundamental issue is the legality of the detention of petitioners, and when we say detention, that includes the state of those petitioners who have been conditionally released from the prison camps of respondent for it is claimed that their conditional release still constitutes a restraint on their personal liberty.

The purpose of the writ of habeas corpus is to inquire into the cause or reason why a person is being restrained of his liberty against his will, and if there is no legal and/or valid justification shown for such restraint the writ will forthwith issue to restore to that person his liberty or freedom. It "exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom ... whose principal purpose is to set the individual at liberty."5Noted authors have eloquently described the writ as "the writ of liberty",6as "the most important and most immediately available safeguard of that liberty",7as "the greatest of the safeguards erected by the civil law against arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered",8and as "the great bulwark of personal liberty."9These concepts of the writ of habeas corpus bring out the blessed sacred truth that personal liberty is one of the basic freedoms of man jealously protected by any civilized society by a fundamental law, written or unwritten, and any deprivation or curtailment of that personal liberty must find a basis in law, substantive or procedural.10In the petitions under consideration respondents justify the arrest and detention of petitioners by virtue of the proclamation of martial law in the country. Respondents aver (1) that the exercise of the power granted to the President of the Republic by See. 10 (2), Art. VII of the 1935 Philippine Constitution, to place the country or any part thereof under martial law, is not subject to judicial review; (2) that even if said executive power may be inquired into, there is factual bases for the President's action; and (3) that the proclamation of martial law carries with it the automatic suspension of the writ of habeas corpus and consequently these petitions should be dismissed.11With the new Constitution having been adopted in the meantime, respondents pose in subsequent pleadings additional grounds for dismissal, and these are: (1) that Art. IX, Sec. 12, of the 1973 Constitution adopted in toto the Commander-in-Chief clause of the 1935 Constitution, and (2) that Art. XVII, section 3 (2) expressly and categorically declares that "the proclamations, orders, and decrees, Instructions and acts issued or done by the incumbent President are to form "part of the law of the land" and are to "remain valid legal, binding, and effective even after the lifting of martial law or the ratification of this Constitution", and that means the present martial law regime and all the measures taken under it, particularly Proclamation No. 1081 and General Orders 1 and 2, as amended.12

On the other hand, petitioners vigorously assert (1) a martial law proclamation is justiciable; (2) conditions in the country as of September 21, 1972, did not justify a proclamation of martial law; (3) assuming that Proclamation No. 1081 is valid, General Orders Nos. 1, 2, 3, and 3-A are violative of the Constitution and are void; and (4) the return is palpably insufficient to justify continued detention of petitioners.13For petitioner Diokno, additional arguments were submitted, viz: (a) existing conditions today do not warrant the continuance of martial law, assuming that the proclamation was initially justified; and (b) the uncertainty of petitioner's fate renders his executive imprisonment oppressive and lawless.14

I

We shall first dispose of the issue of the alleged insufficiency of the Return. .

Petitioners contend that respondents' "Return to Writ" which is quoted in page 6 of this Opinion is fatally insufficient because a return must assert facts and not conclusions as to the basis of the detention, and must be supplemented by affidavits or with evidence at the habeas corpus hearing, citing Carlson vs. Landon, 186 F. 2d. 183.

The pertinent provision of Sec. 10, Rule 102, Rules of Court, on the contents of the return requires that it must state plainly and unequivocably whether the officer to whom the writ is addressed has or has not the party in his custody or power or under restraint, and if he has the party in his custody or power or under restraint, the authority and the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution, or other process, if any, upon which the party is held. (pars. a and b) All that this provision of the Rules of Court requires therefore is that the return must state if the subject of the writ is in custody or under restraint and if so, the authority for such restraint and the cause thereof. It is not necessary for or indispensable to the validity of the return that the evidentiary facts supporting the cause for the restraint be given or enumerated therein. In the petitions at bar the return sufficiently complies with the requirements of the aforementioned provision of the Rules of Court because it states the authority and the cause for the detention of petitioners which after all is the purpose or object of a return. The authority for the detention lies in the statement in the return that the President exercising his powers under Art. VII, Sec. 10 (2) of the Philippine Constitution15proclaimed martial law in the country and pursuant to such proclamation issued General Orders I to 7 inclusive and Letters of Instruction 1 to 3, copies of which are all attached to the return as annexes 1 to 11, while the cause for the arrest of petitioners is given in General Order No. 2 (Annex 3) wherein it is stated that said petitioners are participants or have given aid and comfort in the conspiracy to seize political and state power in the country, etc. At any rate, any deficiency in the aforesaid return constitutes a mere technical violation which is to be disregarded in view of the substantial issues involved in the cases under consideration. Imperfections of form and technicalities of procedure are to be disregarded unless substantial rights would otherwise be prejudiced,16and in the instant cases there is no such prejudice as petitioners are sufficiently informed of the authority and cause of their detention.

II

The next issue is — is this Court with jurisdiction to inquire into the constitutional sufficiency of the proclamation of martial law?

Petitioners assert the authority of this Court to inquire into the necessity of placing the country under martial law in the same manner that it inquired into the constitutional sufficiency of the suspension of the privilege of the writ of habeas corpus in Lansang vs. Garcia.16* Respondents affirm, however, that the determination of the existence of invasion, insurrection, rebellion, or imminent danger thereof, when the public safety requires it is lodged with the President under Art. VII, Sec. 10 (2), 1935 Constitution, and the President's determination is conclusive on all persons, including the courts; hence, this Court is without jurisdiction to resolve on the constitutional sufficiency, of the basis for the exercise of that presidential power, it being a purely political question.

The Constitutional provision referred to reads:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law.17

Respondents cite a host of American authorities and principally fall back on the rulings of this Court in Barcelon vs. Baker, 5 Phil. 87, (1905) and Montenegro vs. Castañeda, 91 Phil. 882, (1952)18which held that the authority to decide whether the exigency has arisen requiring the suspension of the writ of habeas corpus belongs to the President and his declaration is final and conclusive upon the courts and upon all other persons.

The opinions of my colleagues lengthily discuss this issue of justiciability or non-justiciability of the exercise of executive power to proclaim martial law and I will not repeat the arguments for one or the other. I adopt by reference their dissertation on the leading American jurisprudence and Constitutional Law authorities on the matter, but I conclude for my part that the decision of this Court in Lansang vs. Garcia is the better rule to adopt. In Lansang, the Court held that it has the authority under the Constitution to inquire into the existence of a factual basis for the issuance of a presidential proclamation suspending the privilege of the writ of habeas corpus for the purpose of determining the constitutional sufficiency thereof.19If this Court can make that inquiry in the event of suspension of the privilege of the writ of habeas corpus, a fortiori, the Court can inquire into the factual basis for the proclamation of martial law considering the more extensive effects of the latter on the individual rights of the citizenry, for it cannot be denied that martial law carries with it curtailment and infringement not only of one's liberty but also of property rights, rights of free expression and assembly, protection against unreasonable searches and seizures, privacy of communication and correspondence, liberty of abode and of travel, etc., which justify judicial intervention to protect and uphold these liberties guaranteed under the Constitution.19*

In Lansang, the Court said in the words of Chief Justice Roberto Concepcion:

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.' '13 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. ....

x x x           x x x          x x x

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 the system of government, the Executive's 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. (42 SCRA, pp. 473-474,479-480, capitalization Ours)

We are now called upon by respondents to re-examine the above-quoted ruling, abandon it, and return to the principle laid down in Baker and Montenegro.20To do that, however, would be to retrogress, to surrender a momentous gain achieved in judicial history in this country. With Lansang, the highest Court of the land takes upon itself the grave responsibility of checking executive action and saving the nation from an arbitrary and despotic exercise of the presidential power granted under the Constitution to suspend the privilege of the writ of habeas corpus and/or proclaim martial law; that responsibility and duty of the Court must be preserved and fulfilled at all costs if We want to maintain its role as the last bulwark of democracy in this country. To some, the Court could have gone further in delineating its function in the determination of the constitutional sufficiency of a proclamation suspending the privilege of the writ of habeas corpus; while that may be true, as it is, the Lansang decision is a "giant leap" in the interest of judicial supremacy in upholding fundamental rights guaranteed by the Constitution, and for that reason I cannot agree that We discard said decision or emasculate it so as to render its ruling a farce. The test of arbitrariness of executive action adopted in the decision is a sufficient safeguard; what is vital to the people is the manner by which the test is applied by the Court in both instances, i.e., suspension of the privilege of the writ of habeas corpus and/or proclamation of martial law.

III

We come to the third issue — the validity of Proclamation 1081. Respondents contend that there is factual basis for the President to proclaim martial law in the country, while petitioners assert otherwise.

On this point, I agree with respondents that the extreme measure taken by the President to place the entire country under martial law was necessary. The President's action was neither capricious nor arbitrary. An arbitrary act is one that arises from an unrestrained exercise of the will, caprice, or personal preference of the actor (Webster's 3rd New International Dictionary, p. 110), one which is not founded on a fair or substantial reason (Bedford Inv. Co. vs. Folb, 180 P. 2d 361, 362, cited in Words & Phrases, Permanent Ed., Vol. 3-A, p. 573), is without adequate determining principle, non-rational, and solely dependent on the actor's will. (Sweig vs. U.S., D.C. Tex., 60 F. Supp. 785, Words & Phrases, supra, p. 562) Such is not the case with the act of the President, because the proclamation of martial law was the result of conditions and events, not of his own making, which undoubtedly endangered the public safety and led him to conclude that the situation was critical enough to warrant the exercise of his power under the Constitution to proclaim martial law.

As found by this Court in Lansang vs. Garcia: the communist activities in the country aimed principally at incitement to sedition or rebellion became quite evident in the late twenties to the early thirties with the first convictions dating October 26, 1932, in People vs. Evangelista, et al. 57 Phil. 375, and People vs. Guillermo Capadocia, et al. 57 Phil. 364; while there was a lull in such communist activities upon the establishment of the Commonwealth of the Philippines there was a resurgence of the communist threat in the late forties and on June 20, 1957, Congress approved Republic Act 1700 otherwise known as the Anti-Subversion Act which in effect outlawed the so-called Communist Party of the Philippines (CPP); in 1969, the Communist Party was reorganized and split into two groups, one of which, composed mainly of young radicals constituting the Maoist faction, established a New People's Army; the CPP managed to infiltrate or control nine major labor organizations, exploited the youth movement and succeeded in making communist fronts of eleven major student or youth organizations, so that there are about thirty mass organizations actively advancing the CPP interests, among which are the Malayang Samahan ng Magsasaka (MASAKA), the Kabataang Makabayan (KM), the Movement for the Advancement of Nationalism (MAN), the Samahang Demokratiko ng Kabataan (SDK), the Samahang Molave (SM), and the Malayang Pagkakaisa ng Kabataang Pilipino (MPKP).21

A recital of contemporary events from 1969 to 1972 taken from reports of leading newspapers in the country will give the factual background of the proclamation of martial law and, with the indulgence of the reader, I am giving it hereunder:

1969

January 3, Evening News: Huks ambushed five persons including a former mayor of Bagac, Bataan, along the national road in the province and investigation of the Philippine Constabulary revealed that the ambushers were members of a Huk liquidation squad.22January 4, ibid: Army Intelligence sources disclosed that the Huks were regrouping and steadily building up strength through a vigorous recruitment and training program. January 10, ibid: An encounter occurred in Sitio Bilaong, Sibul, Orani Bataan, which was considered the biggest encounter between the Armed Forces and Huks in recent years resulting in the killing of a number of dissidents. January 24, 25, 29, and 31, ibid: In the City of Manila school campuses were not spared from clashes during riotous demonstrations held by more than 1,500 students of the Far Eastern University, the number increasing to about 10,000 of them, and at the Lyceum of the Philippines classes were suspended because of a bloody students' demonstration resulting in the wounding of at least one student. February 1, ibid: The night before, scores of students were injured during a demonstration at the Mapua Institute of Technology initiated by radical elements. February 24 and 28, ibid: Huks continued to strike at government forces in San Fernando, Pampanga, and Tarlac, Tarlac. April 19, Manila Chronicle: A demonstration of about 5,000 farmers from Tarlac reinforced by Kabataang Makabayan members clashed with riot policemen after they had stoned the US Embassy on Roxas Boulevard, Manila, shattered glass windows of the building, and put to torch an American flag. May 19, Philippines Herald: The church was not spared from the onslaught of student activism when a march of activists was held to Manila's prominent Catholic churches. June 12, and 14, Manila Chronicle: Assaults were intensified by government troops on Huk liars in the provinces of Pampanga and Tarlac. July 4, Philippines Herald: The Huks practically were in control of six towns in the province of Tarlac. July 27, ibid: The Kabataang Makabayan which according to the Armed Forces Intelligence sources had a tie-up with the Huks staged a tumultuous demonstration during a state dinner at Malacañang in honor of US President Richard Nixon which resulted in a free-for-all fight and injuries to several demonstrators. September 2, 9, and 10, Manila, Daily Bulletin: Violent student demonstrations were staged including a one-day noisy siege of Malacañang Palace. October 7, and 11, Manila Chronicle: Bloody demonstrations continued near the gates of the US Embassy on Roxas Boulevard during which at least 20 persons including 6 policemen, 3 newsmen and several bystanders were injured. November 18, Manila Daily Bulletin: 3 jeeploads of Huks raided the poblacion of Porac, Pampanga, killing seven and wounding sixteen. November 20, ibid: More persons were killed in the continuing carnage in Pampanga. November 25, ibid: Huks killed two more persons in Pampanga and Tarlac even after constabulary soldiers saturated the provinces on orders of President Marcos. December 5, ibid: Five persons were massacred by Huks in Pampanga.

1970

January 19, Philippines Herald: 400 students demonstrated at Malacañang Palace against power groups in the country. January 22, ibid: A bomb exploded at the Joint US Military Advisory Group Headquarters in Quezon City injuring a Philippine Army enlisted man. January 23, ibid: Student demonstrators mauled a palace guard. January 24, ibid: Some 3,000 students demonstrated at Malacañang for the second day and the National Students League announced a nationwide boycott of classes. January 27, ibid: Opening session of the Seventh Congress was marred by riotous demonstrations by thousands of students and workers in front of the Legislative building during which President and Mrs. Marcos were the target of stones and missiles as they walked to their car and 72 persons were injured in that demonstration. January 31, ibid: Mob attacked Malacañang Palace with ignited bottles and fought with military and police troops until early morning. June 12 and 14, Manila Times: Nilo Tayag, Chairman of the Kabataang Makabayan was arrested for subversion and a submachinegun and documents concerning Communism were confiscated from him. July 5, 6, 7, 13, 19, 21, 23, 25, 26, 27, and 31, ibid: Continued demonstrations were held in front of the US embassy building, in the campus of the Far Eastern University and the University of the East, while violent between the army and the Huks in Central Luzon c continued unabated. September 15, 18, 20, 25, 26, 27 and 29, ibid: Violent strikes and student demonstrations were reported. October 1, 3, 4, 6, 8, 13, 23 and 24, ibid: Demonstrations continued with explosions of pillboxes in at least two schools. The University of the Philippines was not spared when its 18,000 students boycotted their classes to demand academic and non-academic reforms in the State University resulting in the "occupation" of the office of the President of the University by student leaders. Other schools which were scenes of violent demonstrations were San Sebastian College, University of the East, Letran College, Mapua Institute of Technology, University of Sto. Tomas, and Feati University. Student demonstrators even succeeded in "occupying the office of the Secretary of Justice Vicente Abad Santos for at least seven hours". November 6, 7, 8 and 18, ibid; The Armed Forces continued its encounters with the Huks in Central Luzon and with the leaders of the New People's Army. December 5, 9 and 10, ibid: More instances of violent student demonstrations in the City were, reported, the most violent of which occurred after an indignation rally at Plaza Lawton where pillboxes and other explosives were thrown resulting in the wounding of several students, policemen and bystanders. Two Catholic schools and two government buildings in Calbayog City were blasted with dynamite. December 14, 15, 18, 23 and 28, ibid: Fighting was reported in the province of Cotabato between well-armed tribesmen and the local police forces, as well as in Ilocos Sur, while in Cavite the Police Chief and two of his men were shot to death in front of the Hall of Justice building. December 31, ibid: In Baguio City, Lt. Victor N. Corpus joined the New People's Army and effected a raid on the Philippine Military Academy and fled with 35 high-powered guns with ammunition.

1971

January 14, Manila Times: Four students died during a rally at Plaza Miranda of this city. January 21, ibid: Students picketed the Philippine Constabulary Camp at Camp Crame to express their protest on the use of the military forces against students, and to demand the impeachment of President Marcos. January 23, ibid: Oil firms in the city were the object of bombings resulting in death to at least two persons and injuries to others. January 27, Ibid: A hand grenade was hurled at the tower of the ABS-CBN Broadcasting Corporation in Quezon City. February 2, ibid: A freshman student of the University of the Philippines was shot and critically wounded, 35 injured, 26 were arrested in violent incidents at the campus which at that time was in barricades, while in downtown Manila more than 2.000 students occupied and barricaded Claro M. Recto Avenue and 16 persons were injured in separate clashes between the police and students. February 3, ibid: A senior engineering student was shot when government forces drove into the heart of the University of the Philippines campus to disperse students who had set up barricades in the area, and at least 30 women students were wounded in the climax of the day-long pitch battle in the University between students and the local police and soldiers. February 4, 5, 6 and 7, ibid: In downtown Manila, fighting continued between the police and student demonstrators resulting in the death of at least two students and wounding of scores of demonstrators and policemen. February 11, ibid: The U.P. Los Baños Armory was blasted by an explosion. February 13, ibid: The United States Embassy was again bombed. February 17, ibid: In the province of Davao student riots erupted in the University of Mindanao killing at least one student. February 27, ibid: At least 18 persons were killed in Cotabato during encounters between government forces and the so-called rebels. March 17, 18, 19 and 25, ibid: Violent demonstrations and indignation rallies were held in Manila as well as in the province of Tarlac. April 23, Evening News: Two Constabulary troopers were ambushed by Huks under Commander Dante in the poblacion of Capas, Tarlac. April 30, ibid: A bomb exploded in Quezon City destroying the statue symbolizing friendship between the Filipinos and the Americans. May 2 and 3, Philippines Herald: The month of May was a bloody one. Labor Day, May 1, was celebrated by the workers and student activists with a demonstration before Congress, and a clash between the demonstrators and the Police and Metrocom forces resulted in death to several demonstrators and injuries to many. May 7, ibid: Two army troopers and at least 8 Huks including a Commander were killed during military operations against the communist New People's Army in Isabela. June 24, 25 and 26, Manila times: Peace and order situation in Mindanao worsened. Continued clashes between government forces and rebels resulted in the evacuation of thousands of Muslims and Christians alike from several towns in Cotabato and a band of 50 gunmen attacked a party of top government officials led by Defense Secretary Juan Enrile while inspecting a Mosque where 56 Muslims were reportedly massacred in Barrio Manalili, Carmen, Cotabato. June 22, Evening News: Violence continued to be unabated in Manila with a Quezon City activist shot dead and 3 drivers involved in the jeepney strike bombed and injured. August 21, ibid: A public meeting being held at Plaza Miranda, Manila, by the Liberal Party for the presentation of its candidates in the general elections scheduled for November 8, 1971 was marred by what is now known as the brutal Plaza Miranda incident where 8 persons were killed and scores were injured including the candidates of the party, caused by the throwing of two hand grenades at the platform. August 23, ibid: President Marcos issued a proclamation suspending the privilege of the writ of habeas corpus.

1972

January 12, Manila Times: President Marcos restored the privilege of the writ of habeas corpus in the entire country. January 29, Ibid: In the meantime, in Congress a bill was introduced to repeal the anti-subversion law. February 2, 3, 5 and 10, Ibid: Violent demonstrations in the school belt resumed. February 4, ibid: In the province of Zambales an encounter between PC troopers and the New People's Army was reported. March 1, Ibid: The province of Cavite was placed under Philippine Constabulary control because of the rash of killings in which local officials were the victims, one of whom was Cavite City Mayor Roxas. March 2, ibid: A raid was conducted by the Philippine Constabulary in a house in Quezon City resulting in the seizure of 36 high-powered firearms, 2 hand grenades and a dismantled machinegun while in the province of Isabela 6 persons including a non-commissioned officer of the 10th Infantry Battalion were killed in a gun battle between government soldiers and the New People's Army. March 5, ibid: The New People's Army raided Capas, Tarlac, destroying a portion of the town hall. March 9, ibid: More person died in Cotabato and Lanao due to continued violence. March 14, 16, 18, 21 and 27, ibid: The student demonstration on its way to Congress to agitate for the repeal of the anti-subversion law resulted in injuries to a good number of student demonstrators when they clashed with security guards in front of the University of Sto. Tomas. In another violent demonstration in front of Arellano University at least one student was killed and others were wounded in an encounter between the demonstrators and security guards. Pillbox explosives were hurled at the gate of Malacañang Palace and a mysterious explosion sparked a fire that gutted the northern wind of the Greater Manila Terminal Food Market in Taguig, Rizal, which had been preceded by other mysterious explosions which shattered portions of the Arca building on Taft Avenue, Pasay, during which propaganda leaflets were found showing that radical elements were behind the bombings, while 9 sticks of dynamite were found dumped in front of the Security Bank and Trust Company branch office in España Street. March 23, ibid: Another public official, Mayor Rodolfo Ganzon of Iloilo City was wounded in an ambush and 4 of his companions were killed. March 26, ibid: Six more persons were killed as government troopers clashed with the New People's Army in the province of Isabela. April 16 and 17, ibid: Clashes continued between the Army troops and the New People's Army in Isabela which led the government to send more troops to that province. April 20 and 25, ibid: The US Embassy was again bombed while strikes in factories were joined by so-called activists. April 26, ibid: Hand grenades in the town of Cabugao, Ilocos Sur were thrown resulting in the death of 13. April 27, ibid: Clashes continued between government troopers and the New People's Army in the Ilocos provinces as well as in the provinces of Lanao and Zambales. April 30, ibid: The New People's Army invaded the provinces of Samar and Leyte. May 4, ibid: Two big shipments of dynamite sticks estimated at 10,000 pieces had already been shipped to Ilocos Sur before a third shipment was intercepted on a bus bound for Cabugao. May 12 and 16, ibid: More pillbox explosions occurred in the US Embassy during which at least 5 persons were hurt while the pickets at the embassy led by the Kabataang Makabayan continued. May 21, ibid: At least 30 persons were wounded when radical vanguards of about 5,000 demonstrators clashed with about 200 Metrocom troopers in the vicinity of the US Embassy. June 13, ibid: The Philippine Independence Day was marred by rallies of youth and worker groups which denounced US imperialism, with demonstrators numbering about 10,000 from Southern Luzon, Central Luzon and the Greater Manila area converging at Plaza Miranda and during the demonstration explosions of pillbox bombs occurred. June 18, ibid: The situation in Mindanao was critical and had worsened. June 24, ibid: A time bomb exploded in one of the rooms in the second floor of the Court of Industrial Relations building in Manila. July 4, ibid: An explosion shattered the western section of the Philamlife building in Ermita, Manila. July 5, ibid: Thirty-five persons were wounded in pillbox explosions when 2 groups of demonstrators clashed with each other at Liwasang Bonifacio, then with policemen near the US Embassy, as the protest rallies against US imperialism held in conjunction with the July 4th celebration came to a bloody end. Deputy Police Chief Col. James Barbers who suffered 40 pellet wounds on the left side of the body was among the victims. July 6, ibid: Raiders killed 53 in Zamboanga; fighting was also going on in Lanao del Norte. Defense Secretary Juan Ponce Enrile yesterday described the Mindanao developments as "grave". July 7, ibid: President Marcos ordered Zamboanga drive; Armed Forces of the Philippines land-sea-air operations were launched while Mayor Diogracias Carmona of Dimataling, Zamboanga del Sur, was killed in a new clash. July 8, ibid: A panel of lawyers have advised President Marcos that it would be perfectly legal for him to declare martial law, suspend elections, and continue in office beyond 1973, if the "proper" situation develops next year. July 9, ibid: President Marcos said that the Communist infiltration of feuding Muslim and Christian groups in Mindanao could be just a ploy to draw away government troops from Central Luzon and thus leave Manila open to a Red attack. President Marcos ordered the PC and the army to counter-attack and recapture Digoyo Point, Palanan, Isabela; upon receipt of reports that outnumbered government troopers battling New People's Army guerrillas in Palanan were forced to withdraw. He said that the primary target should be the suspected ammunition dump and supply depot of the New People's Army on Digoyo Point. Sixteen PC officers and enlisted men were rescued from 100 New People's Army guerrillas who had pinned them down on board a ship during a sea and air operations. The occupied the ship named "Kuya Maru Karagatan" reported to be of North Korean origin. While inspecting the ship, some 100 New People's Army guerrillas massed on the beach and fired at them. July 10, ibid: President Marcos said that the vessel which landed off Palanan, Isabela, allegedly with military supplies and equipment for the New People's Army is owned by Filipinos and is registered under Philippine laws. The President also saw in the landing incident evidence of a tie-up between local Communists and foreign suppliers of weapons. July 15, ibid: Camp Crame, National PC headquarters, announced a report from Task Force Saranay that government troopers had found hundreds of weapons of American make, including 467 M-14 rifles, in 2 abandoned camps in Digoyo Point, Palanan, Isabela. August 19, Ibid: Rallies were held to mark the first year of the Plaza Miranda bombing and suspension of the writ of habeas corpus by the Movement of Concerned Citizens for Civil Liberties which declared August 21 as a national day of protest against militarization. August 31, ibid: The Department of National Defense at a conference of defense and military officials exposed a plan of the New People's Army to sow terror and disorder in the major cities of the country before the end of the year 1972, and because of several bombing incidents at the Department of Foreign Affairs, Philamlife building, "The Daily Star Office" a newspaper publication, the IPI building and an armored car of the Philippine Banking Corporation, the Philippine Constabulary declared a red alert in the metropolitan area. September 3, ibid: Six army soldiers were killed when they were ambushed by the New People's Army in Cawayan, Isabela. September 6, Ibid: One woman was killed and 60 others were injured when a time bomb exploded in a department store in Cariedo Street, Quiapo, Manila, at about 8:30 in the evening of September 5 which incident was the most serious in the series of bombings which took place in greater Manila and which according to Army Intelligence sources was the work of "subversive elements out to sow fear, confusion and disorder in the heart of the population." September 10, ibid: Terrorist bombers struck again the night before destroying three vital offices in the ground floor of the City hall of Manila and wounding 2 telephone operators. September 12, ibid: A gun battle ensued between the New People's Army and Metrocom soldiers at Pandacan, Manila, near the Oil refineries which led to the sending of Army troops to guard oil depots. September 13, ibid: President Marcos warned that he has under consideration the necessity for exercising his emergency powers under the Constitution in dealing with intensified activities of local Maoists. September 19, ibid: As if in answer to this warning of the President, two time bombs exploded in the Quezon City Hall which disrupted the plenary session of the constitutional Convention and a subversion case Court of First Instance Judge Julian Lustre.

The foregoing events together with other data in the possession of the President as Commander-in-Chief of the Armed Forces led him to conclude that "there is throughout the land a state of anarchy and lawlessness, chaos and disorder, turmoil and destruction of a magnitude equivalent to an actual war between the force of our duly constituted government and the New People's Army and their satellite organizations ... in addition to the above-described social disorder, there is also the equally serious disorder in Mindanao and Sulu resulting from the unsettled conflict between certain elements of the Christian and Muslim population of Mindanao and Sulu, between the Christian 'Ilaga' and the Muslim 'Barracudas', and between our government troops, and certain lawless organizations such as the Mindanao Independence Movement ...", that this state of "rebellion and armed action" caused "serious demoralization among our people and have made the public apprehensive and fearful" and that "public order and safety and the security of the nation demand that immediate, swift, decisive and effective action be taken to protect and insure the peace, order and security of the country and its population and to maintain the authority of the government." (see Proclamation 1081)

Petitioners vigorously dispute all the above conclusions of the President and maintain that the situation in the country as of September 21, 1972, did not warrant a proclamation of martial law; thus, Congress was in session, the courts were open, the Constitutional Convention of 1971 was in progress, etc. Petitioners invoke in their favor the "open court rule" espoused in the American cases of Ex Parte Milligan, 4 Wallace 2, 1866, and Duncan vs. Kahanamoku, 327 U.S. 304, 1945, 90 L. Ed. 688. In Milligan the majority of five Justices of the Supreme Court held among others that "(M)artial rule can never exist where the courts are open and in the proper and unobstructed exercise of their jurisdiction", which ruling was re-affirmed in Duncan.

Much has been said and written by my Colleagues on the merits and demerits of the Milligan and Duncan jurisprudence. For my part I shall simply state that I do not view these two cases as controlling authority on what is the test of an "actual and real necessity" for martial law to exist because these two cases were mainly concerned with the jurisdiction of a military commission (Milligan case) and a military tribunal (Duncan case) to try civilians for offenses generally cognizable by civil courts, and the decision in these two cases simply upholds the principle that where courts are open to exercise their jurisdiction, these civilians must not be denied their rights guaranteed under the Bill of Rights one of which is trial by jury in a civil court. "In other words, the civil courts must be utterly incapable of trying criminals or dispensing justice in their usual manner before the Bill of Rights may be temporarily suspended." (Duncan vs. Kahanamoku supra, p. 703) Furthermore, I would answer the arguments of petitioners with the following critical observation of Professor Willoughby on the Milligan ruling based on the dissent of four Justices in the case, and I quote:

... The statement is too absolutely made that 'martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administration.' It is correct to say that 'the necessity must be actual and present,' but it is not correct to say that this necessity cannot be present except when the courts are closed and deposed from civil administration, for, as the minority justices correctly pointed out, there may be urgent necessity for martial rule even when the courts are open. The better doctrine, then, is, not for the court to attempt to determine in advance with respect to any one element, what does, and what does not create a necessity for martial law, but, as in all other cases of the exercise of official authority, to test the legality of an act by its special circumstances. Certainly the fact that the courts are open and undisturbed will in all cases furnish a powerful presumption that there is no necessity for a resort to martial law, but it should not furnish an irrebuttable presumption. (Willoughby, Constitution of the United States, Vol. 3, 2Ed., p. 1602, emphasis supplied)

To stress his point, Professor Willoughby gave the following example:

The English doctrine of martial law is substantially similar to this, and an excellent illustration of the point under discussion is given by certain events growing out of the late British-Boer war.ℒαwρhi৷

During that struggle martial law was proclaimed by the British Government throughout the entire extent of Cape Colony, that is, in districts where no active military operations were being conducted and where the courts were open and undisturbed, but where considerable sympathy with the Boers and disaffection with the English rule existed. Sir Frederick Pollock, discussing the proper law of the subject with reference to the arrest of one Marais, upholds the judgment of the Judicial Committee of the Privy Council (A.C. 109, 1902) in which that court declined to hold that the absence of open disorder, and the undisturbed operation of the courts furnished conclusive evidence that martial law was unjustified. (ibid, pp. 1602-1603)

Coming back to our present situation, it can be said, that the fact that our courts were open on September 21, 1972, did not preclude the existence of an "actual and present necessity" for the proclamation of martial law. As indicated earlier, the state of communist activities as well as of other dissident movements in this country summarized by this Court in Lansang vs. Garcia and manifested in the recital of events given in this Opinion constituted the "actual and present necessity" which led the President to place the entire country under martial law.

IV

Contrary to respondent's claim, the proclamation of martial law in the country did not carry with it the automatic suspension of the privilege of the writ of habeas corpus for these reasons: First, from the very nature of the writ of habeas corpus which as stressed in the early portion of this Opinion is a "writ of liberty" and the "most important and most immediately available safeguard of that liberty", the privilege of the writ cannot be suspended by mere implication. The Bill of Rights (Art. 111, Sec. 1(14), 1935 Constitution, Art. IV, Sec. 15, 1973 Constitution) categorically states that the privilege of the writ of habeas corpus shall not be suspended except for causes therein specified, and the proclamation of martial law is not one of those enumerated.23Second, the so-called Commander-in-Chief clause, either under Art. VII, Sec. 10(2), 1935 Constitution, or Art. IX, Sec. 12, 1973 Constitution, provides specifically for three different modes of executive action in times of emergency, and one mode does not necessarily encompass the other, viz, (a) calling out the armed forces to prevent or suppress lawlessness, etc., (b) suspension of the privilege of the writ of habeas corpus, and (e) placing the country or a part thereof under martial law. In the latter two instances even if the causes for the executive action are the same, still the exigencies of the situation may warrant the suspension of the privilege of the writ but not a proclamation of martial law and vice versa. Third, there can be an automatic suspension of the privilege of the writ when, with the declaration of martial law, there is a total collapse of the civil authorities, the civil courts are closed, and a military government takes over, in which event the privilege of the writ is necessarily suspended for the simple reason that there is no court to issue the writ; that, however, is not the case with us at present because the martial law proclaimed by the President upholds the supremacy of the civil over the military authority,24and the courts are open to issue the writ.

V

Respondents argue that with a valid proclamation of martial law, all orders, decrees, and other acts of the President pursuant to said proclamation are likewise valid: that these acts were expressly declared legal and binding in Art. XVII, Sec. 3(2), of the 1973 Constitution which is now in full force and effect, and consequently the arrest of petitioners is legal, it having been made in accordance with General Order No. 2 of the President.

I cannot give my unqualified assent to respondents' sweeping statement which in effect upholds the view that whatever defects, substantive or procedural, may have tainted the orders, decrees, or other acts of the President have been cured by the confirmatory vote of the sovereign people manifested through their ratification of the 1973 Constitution. I cannot do so, because I refuse to believe that a people that have embraced the principles of democracy in "blood, sweat, and tears" would thus throw away all their precious liberties, the sacred institutions enshrined in their Constitution, for that would be the result if we say that the people have stamped their approval on all the acts of the President executed after the proclamation of martial law irrespective of any taint of injustice, arbitrariness, oppression, or culpable violation of the Constitution that may characterize such acts. Surely the people acting through their constitutional delegates could not have written a fundamental law which guarantees their rights to life, liberty, and property, and at the same time in the same instrument provided for a weapon that could spell death to these rights. No less than the man concerned, President Ferdinand E. Marcos, has time and again emphasized the fact that notwithstanding the existence of martial law ours is a government run under the Constitution and that the proclamation of martial law is under the Rule of Law.25If that is so, and that is how it should be, then all the acts of the President must bow to the mandates of the Constitution.

That this view that we take is the correct one can be seen from the very text of See. 3(2), Art. XVII of the 1973 Constitution which provides:

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

As stated in the above-quoted provision, all the proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land; the text did not say that they shall be part of the fundamental or basic law — the Constitution. Indeed, the framers of the new Constitution were careful in their choice of phraseology for implicit therein is the Court's power of judicial review over the acts of the incumbent President in the exercise of his martial law powers during the period of transition from the Presidential to the Parliamentary regime. For the effect of the aforementioned transitory provision is to invest upon said proclamations, orders, decrees, and acts of the President the imprimatur of a law but not a constitutional mandate. Like any other law or statute enacted by the legislative branch of the government, such orders, decrees, etc. are subject to judicial review when proper under the Constitution; to claim the contrary would be incongruous to say the least for while the acts of the regular National Assembly which is the permanent repository of legislative power under the new Constitution are subject to judicial review, the acts of its temporary substitute, that is, the incumbent President, performed during the transitory period are not.

It is contended however that the true intention of the Constitutional Delegates in providing for Section 3(2), Article XVII, in the 1973 Constitution was to foreclose any judicial inquiry on the validity not only of Proclamation 1081 but also of all subsequent orders, decrees issued and acts performed by the incumbent President. If that was the intent, then why did that particular provision not state so in clear and unequivocal terms, especially since the effect would be to restrict if not to deprive the judicial branch of the government of its power of judicial review in these instances? As it is, that is, as presently worded, this particular provision was ratified by the people believing that although the acts of the incumbent President were being made part of the law of the land they still had a recourse to the judicial branch of their government for protection or redress should such acts turn out to be arbitrary, unjust, or oppressive.

Going back to General Order No. 2, its validity is assailed by petitioners on the ground that it ordered their arrest and detention without charges having been filed against them before the competent court nor warrants for their arrest issued by the latter, all in violation of their constitutional right to due process of law.

A state of martial law vests upon the President not only the power to call the military or armed forces to repel an invasion, prevent or suppress an insurrection or rebellion, whenever public safety requires it, but also the authority to take such measures as may be necessary to accomplish the purposes of the proclamation of martial law. One such measure is the arrest and detention of persons who are claimed to be participants or suspected on reasonable grounds to be such, in the commission of insurrection or rebellion, or in the case of an invasion, who give aid and comfort to the enemy, the arrest being necessary to insure public safety. It is this element of necessity present in the case which justifies a curtailment of the rights of petitioners and so long as there is no showing of arbitrariness or oppression in the act complained of, the Court is duty bound to sustain it as a valid exercise of the martial law powers of the President. With the foregoing qualification, I agree with the following statement:

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. (Moyer vs. Peabody, 212 U.S. 78, 53 L. Ed., pp. 411, 417)

The issuance of General Order No. 2 therefore was a valid initial step taken by the President to render effective the suppression of armed resistance to our duly constituted government.

Thus, I vote for the dismissal of the petitions for habeas corpus of those who have been conditionally released, because: (1) The arrest of said petitioners was effected by respondents under a valid Order of the President. (2) The petitioners concerned have been ordered released from detention. The prime object of a writ of habeas corpus is to relieve a person from physical restraint and this has been accomplished on respondent Secretary's initiative, (3) While it is true that the release of petitioners is subject to certain conditions such as restrictions on petitioners' freedom of movement, such restrictions are reasonable precautionary measures in the face of public danger, and I do not see any arbitrariness in the imposition of said restrictions.

With respect to the case of petitioner Aquino, I concur in the dismissal of his petition for reasons that: (1) criminal charges have been filed against him before a military commission and (2) the legal issues posed by him which are germane to this habeas corpus proceeding are disposed of and resolved in the manner indicated in this Opinion. As regards the other issues submitted by Aquino, I agree with my Colleagues that the same are to be resolved in the prohibition and certiorari case filed by him which is now pending before the Court.

CONCLUSION

In closing, may I state that it was necessary for me to write this separate Opinion because I found myself at variance with my Colleagues on certain issues posed by these Petitions for habeas corpus. To recapitulate: (1) Is the constitutional sufficiency of a proclamation of martial law by the President a political question? — I hold that it is not a political, but is a justiciable one. (2) Did the proclamation of martial automatically suspend the privilege of the writ of habeas corpus? No, is my answer. (3) Did Sec. 3(2), Art. XVII of the Transitory Provisions of the 1973 Constitution foreclose judicial inquiry into the validity of all decrees, orders and acts of the incumbent President executed after the proclamation of martial law and during the Transitory Period? I say: NO, because those acts are still subject to the power of judicial review if and when they are shown to be arbitrary, oppressive, or unjust, in violation of the Constitution and/or the generally accepted principles of International Law, usage's and customs.

My conclusions may not be supported by existing jurisprudence or may even be contrary to the multiple authorities cited by my senior Colleagues in the Court; nonetheless, I humbly offer and submit them as the spontaneous reactions of my conscience to the issues which in the words of my distinguished Colleague, Mr. Justice Antonio P. Barredo, affect not the petitioners alone but the whole country and all our people.

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Footnotes

1 Diokno's petition for habeas corpus was filed on September 23, 1972, the third day after the signing of Proclamation No. 1081. In Javellana vs. The Executive Secretary, L-36142, March 31, 1973, and allied cases, called the Ratification Cases, this Court in its dispositive portion stated: "there is no further judicial obstacle to the New Constitution being considered in force and effect". On October 24, 1973, President Ferdinand E. Marcos swore into office the Hon. Querube C. Makalintal as Chief Justice, and October 29, Associate Justices: Calixto O. Zaldivar, Fred Ruiz Castro. Enrique M. Fernando, Claudio Teehankee, Antonio P. Barredo, Felix V. Makasiar, Felix Q. Antonio, and Salvador V. Esguerra took their Oath under the new Constitution together with new appointees, Justices Estanislao Fernandez, Cecilia Muñoz Palma and Ramon Aquino.

2 Eight votes were considered by the Court necessary to grant the motion, and of the twelve Justices, only seven finally voted to grant the withdrawal of the petition, namely: Chief Justice Makalintal, Associate Justices Zaldivar, Fernando, Teehankee, Barredo, Muñoz Palma, and Aquino; the rest voted to deny the motion.

3 General Order No. 2 was amended as General Order No. 2-A dated September 26, 1972.

4 There were nine separate Petitions filed, to wit, in chronological order: G.R. Nos. L-35538, 35539, 35540, 35546, 35547, 35556, 35567, 35571, and 35573, the last having been docketed on October 3, 1972. Of the nine petitions, only six are now being decided because L-35547, Voltaire Garcia II, petitioner, became moot upon the death of the petitioner on March 2, 1973, while on conditional release; Tan Chin Hian and Veronica L. Yuyitung petitioners, was withdrawn with the approval of the Court on the ground that petitioners had been released from custody; and L-35571, Bren Guiao, petitioner, was likewise withdrawn with the approval of the Court. Although there were originally 32 petitioners only 18 remain and they are as enumerated in the caption of these six cases under consideration. Of these 18 petitioners, three were members of the Philippine Senate at the time of their arrest, namely: Jose W. Diokno, Benigno S. Aquino, Jr., and Ramon V. Mitra, Jr.; two were delegates to the Constitutional Convention of 1971, namely: Jose Mari Velez and Napoleon G. Rama while the rest are well-known journalists and men of the mass media.

5 Villavicencio vs. Lukban, 39 Phil. 778, 790, cited in J. G. Bernas, S.J., Constitutional Rights and Duties, Vol. 1, 1974 Ed., p. 262. .

6 Justice E. Fernando, The Bill of Rights, 1972 Ed., p. 296.

7 Bernas, supra, p. 262.

8 Willoughby on the Constitution, Vol. 3, p. 1612 (1929) quoted in Fernando, supra.

9 2 Story, Const. quoted in Black's Constitutional Law, 2 Ed. p. 599.

10 Art. III, Sec. 1 par. 1, Philippine Constitution of 1935 provides:

"No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws." This provision is adopted verbatim in Art. IV, Sec. 1, Constitution of 1973.

The Preamble of the French Constitution of 1958, Art. 1 provides: "Men are born and remain free and equal in respect of rights ..." and Art. 7 states: "No one shall be accused, arrested, or imprisoned, save in the cases determined by law, and according to the forms which it has prescribed (Taken from Howard and Summers, Law its nature, functions, and limits, p. 257) .

The Constitution of the Union of Soviet Socialist Republics; 1936, Art. 127 provides: "Citizens of the USSR are guaranteed inviolability of the person. No person may be placed under arrest except by decision of a court or with the sanction of a procurator (ibid, p. 259) .

Sec. 1, Art. XIV, United States Constitution reads "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Black's, supra, XXIV)

11 see Memorandum of Respondents dated November 17, 1972, pp. 4-5.

12 Answer to Supplemental Petition and Motion for Immediate Release, dated July 26, 1973, p. 23, L-35539.

13 Memorandum for Petitioners dated November 9, 1972, pp. 6, 23, 71, 97.

14 Supplemental Petition and Motion for Immediate Release dated June 29, 1973, pp. 45-51, 63-94.

15 Reference is made to the 1935 constitution.

16 Moran, Rules of Court, Vol. 3. 1970 Ed. p. 615; Clorox Co. vs. Director of Patents, et al., L-19531, August 10, 1967, 20 SCRA 965, 970, Palma vs. Hon. Oreta, et al., 34 SCRA.

16* L-33964, December 11, 1971, 42 SCRA 448.

17 Same as Sec. 12, Art. IX Constitution of 1973, except the term "President" is now "Prime Minister".

18 The Baker case involved the suspension of the privilege of the writ of habeas corpus in the provinces of Batangas and Cavite by the Governor-General pursuant to a Resolution of the Philippine Commission dated January 31, 1906, while the Montenegro case involved Proclamation 210 by Pres. Elpidio Quirino on October 22, 1950, suspending the privilege of the writ of Pursuant to Art. VII, Section 10, paragraph 2 of the Constitution.

19 p. 473, supra.

19* see Bill of Rights, Art. III, 1935 Constitution; Bill of Rights, Art. IV, 1973 Constitution. .

"13 When were, seemingly, taken from the seventh paragraph of Section 3, and Section 21 of the Jones Law (Act of Congress of the U.S. of August 29, 1916). The only provision thereon in the U.S. Constitution is found in Section 9(2) of Art. 1 thereon — on the Legislative Power — which provides that 'the privilege of the writ of habeas shall not be suspended, unless in cases of rebellion or invasion the public safety may require it.'" (footnote inside quotation)

20 Memorandum of Respondents, supra pp. 36-40.

21 Supra, pp. 476-477, 484.

22 The term 'Huks' refers to an army or group of men organized and operating in Central Luzon for communistic activities. (Footnote 22 inside quotation)

Law Quarterly Review, XVIII, 152. For an oppositive view, see Edinburgh Review, January, 1902.

23 Art. III, Sec. 1(4), 1935 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 suppression shall exist.

Art. IV, Sec. 15, 1973 Constitution:

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

24 President Ferdinand E. Marcos, Notes on the New Society of the Philippines, 1973. p. 37.

25 Ibid.

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