G.R. No. L-61016 - Concurring Opinions

G.R. No. L-61016, April 26, 1983,
♦ Decision, Concepcion, [J]
♦ Concurring Opinion, Fernando, [CJ] Melencio-Herrera [J]
♦ Dissenting Opinion, Teehankee, [J]
♦ Concurring & Dissenting Opinion, Makasiar, Abad Santos, De Castro, Gutierrez [JJ]

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF HORACIO R. MORALES, JR., petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR, respondents.

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ANTONIO C. MONCUPA, JR. ANTONIO C. MONCUPA, JR., petitioner,
vs.
MINISTER JUAN PONCE ENRILE, GEN. FABIAN C. VER and COL. GALILEO KINTANAR, respondents.

Lorenzo M. Tañada, Augusto Sanchez, Jejomar Binay and Antonio Quintos for petitioners.

concurring in the dismissed of the petitions, expressing conformity with the reiteration of the doctrine announced in Lansang v. Garcia, and dissenting on the question of the right to bail which for him may be invoked whenever allowable under the Constitution:

Let me make clear at the outset that I limit myself to a concurrence in the dismissal of the petitions, expressing conformity with the reiteration of the doctrine in Lansang v. Garcia,1 and a dissent on the question of the right to bail during a period of suspension of the privilege of the writ of habeas corpus, which for me may be invoked whenever allowable under the Constitution, a stand I took both as counsel in Hernandez v. Montesa2 and thereafter as a member of the Court in Lansang v. Garcia,3 Buscayno v. Enrile,4 and Garcia-Padilla v. Ponce Enrile.5 This is by no means to indicate lack of due recognition of the intensity of conviction and lucidity of expression so evident in the exhaustive opinion of Justice Concepcion Jr. It is merely to adhere to the norm of limiting myself to an appraisal of the constitutional rights invoked insofar as they have a bearing on these petitions.6 Hence this separate expression of my views.

1. The first paragraph of the decisions of this Court is worded as follows: "The petitions are without merit and are hereby DISMISSED."7 I am in full agreement. The authoritative doctrine followed by this Court in accordance with well-settled jurisprudence is that the moment it can be shown that the persons detained are being held in lawful custody by virtue of a judicial process, then an application of the privilege of the writ of habeas corpus cannot succeed.8

2. There is equally to my mind no question about the validity as a legal proposition of paragraph 4 of the opinion, which speaks of the Philippines being "a republican state. Sovereignty resides in the people and all government authority emanates from them. We have a Constitution framed by a constitutional convention and duly ratified by the people. We subscribe to the rule of law. We believe in human rights and we protect and defend them. Petitioners are entitled to the full enjoyment of all the rights granted to them by law. And this Court stands as the guarantor of those rights."9 This Court in normal times as well as under emergency conditions has displayed fealty to human rights, as protected and safeguarded by the Constitution. It is a matter of legitimate pride that even under the 1935 Charter, the Philippines has accorded full recognition not only to the traditional civil and political rights but to social and economic rights. The autonomy of the human personality and the assurance of his dignity are a matter of deep public concern. It is equally a matter of legitimate pride that during the period of martial law, with fun recognition of the power of the government to maintain peace and order and preserve its authority, the judiciary, was not recreant to such a trust.10 For the entire judiciary, not only this Court, stands as a guarantor of those rights. It does so when it has to act in a proper case submitted to it. The political branches are equally, to my mind, guarantors of human rights; the Batasan Pambansa in the enactment of laws and the President in their enforcement whether through executive orders implementing them or the issuance of decrees having the force and effect of law. In the sense, however, that decisions coming from this Court have not merely an inter-partes but an erga omnes effect, binding not only the litigants but also others finding themselves similarly situated, it is quite accurate to state that "this Court stands as a guarantor of those rights."

3. It is by virtue of the respect for constitutional rights that in the resolutions of this Court in both applications for the writ, it was made clear that counsel of petitioners can visit them and confer with them in an atmosphere of confidentiality consistent with reasonable security measures to be imposed by respondents.11 Again, it is by virtue of deference to the Constitution that in succeeding resolutions, their allegations as to other instances of violation of their rights were referred for investigation to the City Fiscal of Quezon City.12

4. Paragraphs 5 to 19 of the opinion of the Court elaborate further on the matter. They are notable for the concern shown for constitutional rights, with full recognition of the power of the state to deal effectively with rebellion or subversion. I view the matter similarly. The same thought was given expression in Lansang v. Garcia.13 In the memorable language of Chief Justice Concepcion: "Manifestly, however, the liberty guaranteed and protected by our Basic Law is one enjoyed and exercised, not in derogation thereof, but consistently therewith, and, hence, within the framework of the social order established by the Constitution and the context of the Rules of Law. Accordingly, when individual freedom is used to destroy that social order, by means of force and violence, in defiance of the Rule of Law-such as rising publicly and taking arms against the government to overthrow the same, thereby committing the crime of rebellion there emerges a circumstance that may warrant a limited withdrawal of the aforementioned guarantee or protection, by suspending the privilege of the writ of habeas corpus, when public safety requires it. Although we must be forewarned against mistaking mere dissent-no matter how emphatic or intemperate it may be-for dissidence amounting to rebellion or insurrection, the Court cannot hesitate, much less refuse-when the existence of such rebellion or insurrection has been fairly established or cannot reasonably be denied-to uphold the finding of the Executive thereon, without, in effect, encroaching upon a power vested in him by the Supreme Law of the land and depriving him, to this extent, of such power, and, therefore, without violating the Constitution and jeopardizing the very Rule of Law the Court is called upon to epitomize."14

5. In the opinion of Justice Concepcion Jr., paragraph 21 explicitly states: "We reiterate this doctrine." There is thus a reaffirmance of the ruling in Lansang cited in paragraph 20 to the effect that the suspension of the privilege of the writ raises a judicial rather than a political question. I am in complete agreement. That was the point of my dissent in the recently decided case of Garcia-Padilla v. Enrile.

6. There is also on my part conformity with the view set forth in paragraph 22 that "in all petitions for habeas corpus the court must inquire into every phase and aspect of petitioner's detention-from the moment petitioner was taken into custody up to the moment the court passes upon the merits of the petition."15

7. I am in agreement with the view expressed in paragraph 23 that there can be no indefinite detention without charges being filed. It must be recognized, however, that in cases of invasion, rebellion and insurrection, or imminent danger thereof, the power of preventive detention is recognized by the Constitution, considering that when public safety requires, the privilege of the writ of habeas corpus may be suspended or martial law, as a last resort, declared. I had occasion to speak on the matter in my separate opinion in Garcia-Padilla v. Enrile, where I stated that when the stage of punitive detention is reached, there can be reliance on the writ of habeas corpus.16

8. The next five paragraphs deal with the right to bail. Paragraph 24 correctly noted: "Next to life, man loves his freedom." In the next paragraph reference is made of the presumption of innocence and then of the constitutional right to bail, after which it was noted in paragraph 26 that under Presidential Proclamation No. 2045 lifting martial law, the privilege of the writ of habeas corpus "continues to be suspended in the two autonomous regions in Mindanao and in all other places with respect to certain offenses," namely "the crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith." Paragraph 27 reaches the heart of the matter, the main opinion laying down the principle that due to the privilege of the writ of habeas corpus remain suspended, "the natural consequence is that the right to bail for the commission of anyone of the said offenses is also suspended. To hold otherwise would defeat the very purpose of the suspension. Therefore, where the offense for which the detainee was arrested is anyone of the said offenses he has no right to bail even after the charges are filed in court." Paragraph 28 sets forth the ratio decidendi: "The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct attacks on the life of the State." Then an analogy is made in the next paragraph in this wise: "Just as an individual has a right to self-defense when his life is endangered, so does the State. The suspension of the privilege of the writ is to enable the State to hold in preventive imprisonment pending investigation and trial those persons who plot against it and commit acts that endanger the State's very existence. For this measure of self-defense to be effective, the right to bail must also be deemed suspended with respect to these offenses." With respect, I dissent. It is not necessary to repeat what I said right at the beginning of this opinion why I am unable to agree to the proposition that the suspension of the privilege of the writ carries with it the suspension of the right to bail. Nor is there need to quote from my concurring and dissenting opinions both in the Lansang and the Garcia-Padilla cases. Briefly put, my perception of the matter traces itself to what was said in the landmark Milligan decision where the American Supreme Court said that only one great right may be suspended "leaving all the rest forever inviolable."17 This is not to ignore the practical consideration set forth in the opinion of retired Chief Justice Concepcion in Lansang that militates against my approach. First he aptly summarized it in the words of Justice Tuason in Henandez, "if and when formal complaint is presented, the court steps in and the executive steps out."18 After which came this portion of the opinion of the then Chief Justice: "From a long-range viewpoint, this interpretation-of the act of the President in having said formal charges filed is, We believe, more beneficial to the detainees than that favored by Mr. Justice Fernando. His view-particularly the theory that the detainees should be released immediately, without bail, even before the completion of said preliminary examination and/or investigation-would tend to induce the Executive to refrain from firing formal charges as long as it may be possible. Manifestly, We should encourage the early filing of said charges, so that courts of justice could assume jurisdiction over the detainees and extend to them effective protection."19

9. That brings us to paragraph 33 of the main opinion. The characterization of a "merged executive and legislative branches" does not suffer from the taint of in accuracy, if viewed from the practical standpoint. Viewed as a matter of legal theory, I am not prepared to go that far. This Court, in a unanimous opinion, expressly held: "The adoption of certain aspects of a parliamentary system in the amended Constitution does not alter its essentially presidential character."20 There is therefore no repudiation of the theory of separation of powers. Through the exercise of vigorous presidential leadership, however, made manifest in party caucuses, there is attained both unity of purpose and action. In that sense, it could be asserted with truth that there is to all intents and purposes fusion of the executive and legislative branches. Hence the need for the maintenance of the concept of an independent judiciary. So it was pointed out in Fortun v. Labang.21

10. One last word. Doctrines have to be assessed in terms of its effect on the governmental process. The rationale cannot be dissociated from the texture of the times. They cannot ignore the forces at work which may either solidify or rent asunder the political community. A crisis situation has a compulsion all its own. There may then be a conflict between the traditional formulations and the coercion of events. That may render even more unavoidable the intrusion of the demands of the hour into the domain of law. Adherence to what has been all along the accepted basic approach to human rights calls for fealty. There must be also, however, recognition of a more fluid standard in the assessment of governmental action to protect the security of the state. It is my submission, however, that only when there may be grave public danger should reliance on the high estate accorded constitutional rights be stigmatized as being in the grip of the suffocating orthodoxies of the law.

I concur with paragraph 1 of the Decision, dismissing the petitions filed in these cases. The term petitioner as used herein shall refer not only to Horacio R. Morales, Jr,, but will also include Antonio C. Moncupa, Jr. insofar as legal statements may be applicable to the latter.

Petitioner was detained on April 21, 1982 by the Armed Forces of the Philippines under a Presidential Commitment Order approved on April 23, 1982. On July 9, 1982, he filed the petition for habeas corpus alleging that he was being illegally detained by respondents Minister of National Defense, Chief of Staff of the Armed Forces of the Philippines, and, specifically, by Colonel Galileo Kintanar, Commanding Officer of the 15th Military Intelligence Group. Petitioner's prayer was for the issuance of the Writ directing respondents "to show the cause of his imprisonment or restraint, and after hearing, to order his release forthwith." The Court issued the Writ on July 13,1982.

In a Supplemental Return to the Writ, respondents informed the Court that petitioner, on July 20, 1982, had been charged with Rebellion in Criminal Case No. Q-21091 of the Court of First Instance of Rizal, and they asked that the petition for habeas corpus be denied for the reason that "with the pendency of the case against petitioner before the Court below for trial and before the City Fiscal for reinvestigation, there is all the more reason to dismiss the petition.

Under the foregoing facts, it is my opinion that these cases have become moot. There is no longer any cause of action against respondents who must be deemed to have lost custody of petitioner (In re Lasam vs. Enrile, 67 SCRA 43 [1975]). I do not agree with the view that petitioner is still not within the jurisdiction of the Court below. If that were a correct proposition, the Court below would be without jurisdiction to try the rebellion case. In criminal law, "the Court must also have jurisdiction over the subject matter, that is, jurisdiction of the offense, and must have jurisdiction of the person of the accused" (U.S.-U.S. v. Simon, D.C. Pa., 248, cited in 22 C.J.S. 300). Even if there has been no warrant of arrest issued by the Court below, the person of petitioner, who is now being tried, must be deemed as already within its jurisdiction (Carrington vs. Peterson, 4 Phil. 134 [1905]).

As petitioner is now within the jurisdiction of the Court below, the question in regards to the suspension of the Writ of habeas corpus has become irrelevant. Considering that the Writ is never issuable to a Court (Nava v. Gatmaitan, 90 Phil. 172 [1951]), there should be no justification in these cases to assail whatever has been said or resolved in Lansang v. Garcia, 42 SCRA 448 (1971). That particular matter could have been raised, procedurally, if petitioner had not been charged with Rebellion before the Court below. Of course, it would then be for this Court to give or not to give due course to the question. After all, habeas corpus is a discretionary Writ (Engels vs. Amrine 155 Kan. 385, 125 P2d 379, cited in 39 Am. Jur. 2d, 269). Or, that would be the occasion for the Court to express its present views in regards to Lansang-Garcia. The Constitution is a living institution, and its interpretation and construction lives with changing times and circumstances.

On the other hand, in reference to whether or not petitioner is entitled to bail in the rebellion case, I believe that the proper procedure should be for petitioners to apply for bail before the Court below, and after his motion is granted or denied, the matter can thereafter be elevated to appellate consideration.

Once prosecuted in Court the position should not be taken that petitioner cannot be bailed, the right to bail being a fundamental right except for those charged with capital offenses when evidence of guilt is strong. The Constitution limited the suspension of the privilege of the writ of habeas corpus to only one great right leaving the rest to remain forever inviolable (Ex parte Milligan, 18 U.S. Law ed., 281, 297). The power of the Courts to grant bail cannot be curtailed if the supremacy of the Judiciary within its own sphere is to be preserved. (Angara vs. Electoral Commission 63 Phil. 139 [1936]; Fernandez Subido vs. Lacson, 2 SCRA 1054 [1961]).

The reason for the objection to bail poses the same risk should the Court acquit petitioner. The risk need not be taken by continuing the detention under the Presidential Commitment Order, for a reasonable period, in the exercise of executive discretion by way of precaution essential for the public safety. "Public danger warrants the substitution of executive process for judicial process" (Moyer vs. Peabody, 53 Law, Ed., US 211-214, p.411).