G.R. No. L-61016 - Dissenting Opinion

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.

I concur in the sharply perceptive and heartfelt main opinion penned by Mr. Justice Hermogenes Concepcion, Jr. especially in the reminders about rights of the accused, the cry of our people for material necessities to give them a better life, and the proper administration of justice. However, I would like to add some qualifying observations to a few points discussed by the ponente.

I agree, that the issuance of a presidential arrest and commitment order (PCO) must comply with the requirements of the Constitution. However, until the issue is placed squarely before us in a more appropriate case, I hesitate to concur in a categorical statement that a PCO may be equated with a warrant of arrest issued by a judge under Section 3, Article IV of the Constitution. An examination of Letters of Instructions Nos. 1125-A and 1211 indicates that the PCO is issued by the President, not as "such other responsible officers as may be authorized by law" under Section 3 of the Bill of Rights but as Commander-in-Chief exercising exclusively executive powers under the Constitution to meet problems of invasion, insurrection, or rebellion or imminent danger thereof, when the public safety requires it. Precisely, the letters of instructions call for preliminary examination or investigation by a judge as the regular procedure. Only when resort to judicial process is not possible or expedient without endangering public order and safety and when the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety may the military commander or the head of the law enforcement agency apply to the President, through the Minister of National Defense, for a presidential commitment order. The fact that the stated procedure in the issuance of a PCO is an exception to and differs from the regular procedure before a judge for the issuance of a warrant of arrest shows that a PCO may not be equated completely with a warrant of arrest.

In Qua Chee Gan v. Deportation Board, (9 SCRA 27), the issue was raised that the President, having been given the power to deport undesirable aliens, may not be denied power which is essential to carry into effect the deportation. This Court did not categorically rule that the President himself may order the arrest of an alien for deportation purposes, but neither did it rule that he may not do so. The fact is the President has on various occasions, such as those involving among others, Mr. Harry Stonehill and some associates and perhaps and Yuyiteng brothers, ordered the arrest of aliens without having to secure a warrant of arrest from a judge at a time when under the Constitution only a judge could issue such a warrant. The commander-in-chief's power in a situation where the writ of habeas corpus has been suspended or martial law has been proclaimed is certainly broader and less subject to constitutional restrictions than the power of deportation. I may also add that the President does not personally examine the complainant and the witnesses the latter may produce as the multifarious affairs of state prevent him from doing so. But as in the case of judges relying on investigations conducted by the fiscal, the President may rely on his Minister of National Defense or the recommending military commander or the head of the law enforcement agency to conduct what would be the equivalent of the judicial examination for probable cause. Of course, the rules in Amarga v. Abbas, (98 Phil. 739) which impose on the judge issuing the warrant of arrest the legal duty to first satisfy himself that there is probable cause without relying completely or ministerially upon the findings of the fiscal, should also apply and I believe are in fact applied to PCO's.

It also hesitate to give concurrence to an unqualified reiteration of the Lansang v. Garcia (42 SCRA 448) doctrine on the Court's inquiring into the existence of factual bases for the suspension of the privilege of the writ of habeas corpus or the proclamation of martial law to determine their constitutional sufficiency. While the Court has not been very receptive lately to the invocation of the political question doctrine by State lawyers, I believe that the doctrine does apply in cases where a political department- either the President or the Batasang Pambansa-exercises powers expressly granted in an exclusive manner by the Constitution and which are of a clearly political nature not proper for judicial determination. If the proclamation of martial law or the suspension of the privilege of the writ is so patently arbitrary and as Justice Abad Santos says, lacking in popular support, there will always be constitutional foundation for Supreme Court action to rule against arbitrariness. However, as a general principle, whenever the President exercises his powers under the Constitution to meet the supreme dangers of invasion, insurrection, or rebellion or imminent danger thereof when the public safety requires it, we should not assume a power, upon the mere filing of a petition, to render a judicial interpretation of an exclusively constitutionally granted power of the President. Paraphrasing Coleman v. Miller (307 US 433, 83 L. Ed. 1385), the question of the sufficiency of factual bases for the suspension of the privilege of the writ or the proclamation of martial law would involve an appraisal of a great variety of relevant conditions involving national security which can hardly be said to be within the appropriate range of evidence receivable in a court of justice and as to which it would be an extravagant extension of judicial authority to assert judicial notice, which after all is what we would be asserting in most cases involving the exercise of this extraordinary presidential power.

I join Justices De Castro and Abad Santos in their opinion to abandon the Lansang doctrine and to adhere to the doctrine in the Montenegro and Barcelon cases that determination by the Chief Executive of the existence of invasion, rebellion, insurrection or imminent danger thereof and that public safety requires it, for the suspension of the privilege of writ of habeas corpus and for the proclamation of martial law, is a political question and therefore beyond the sphere of judicial inquiry. In addition to the reasons advanced by Justices De Castro and Abad Santos, it should be stressed that the prime responsibility for the preservation of the territorial integrity and sovereignty of the Republic as well as its security, rests on the commander- in-chief and not on the Judiciary. It is a classical truism that there is no power under the sun that is not susceptible of abuse. Any abuse or any arbitrary exercise by the President as commander-in-chief of his constitutional power to proclaim martial law or to suspend the privilege of the writ of habeas corpus, can be repudiated or overruled by the people in the exercise of their sovereign right of suffrage at the next election, and, pending the holding of the next election, through their constitutional right of free expression to sway public opinion against such abuse of power.

To repeat, only the Chief Executive is well-equipped with the intelligence services as commander-in-chief to secure the desired information as to the existence of the requirements for the proclamation of martial law or for the suspension of the privilege of the writ of habeas corpus. The Supreme Court is bereft of such aids. This was clearly demonstrated at the executive session during one of the hearings in the Lansang case where the lawyers for the petitioners were present. Counsel for the petitioners had no means of rebutting the evidence and information gathered by the military organization presented in said Lansang case before this Court, which had to rely on such evidence and information submitted by the Armed Forces. It was clearly an exercise in futility.

Corollary to the doctrine in the case of Aquino vs. Enrile (59 SCRA 183), which was re-affirmed in Gumaua vs. Espino (96 SCRA 402, 412), that the proclamation of martial law automatically suspends the privilege of the writ of habeas corpus, the suspension of the privilege of the writ of habeas corpus must necessarily include the suspension of the right to bail for crimes which are grounds for the suspension of the privilege. This should be the ruling principle because, as well-stated by Mr. Justice De Castro, to release on bail persons indicted for rebellion or insurrection would be to nullify the very purpose of the suspension of the privilege, which is precisely to prevent them from continuing with the rebellion or insurrection or abetting the same. The suspension of the privilege is precisely to restore tranquility and prevent the shedding of blood by our own people, more than just insuring the safety of public and private properties.

Executive process is as valid as judicial process. In the epigramatic language of Mr. Justice Holmes:

I concur in the result, i.e. in the dismissal of the petitions. This is as far as I can go because I cannot give my assent to some of the statements made in the main opinion. My list is not exhaustive but among them are the following:

1. I reject the doctrine laid down in Lansang vs. Garcia, 42 SCRA 448 [1971] that this Court "has the authority to inquire into the existence of said factual bases [for the issuance of Proclamations Nos. 889 and 889-A which suspended the privilege of the writ of habeas corpus] in order to determine the constitutional sufficiency thereof." (At p. 473.) In other words, this Court, on the urging of the petitioners, declared that it has the power to determine whether or not the President acted arbitrarily in suspending the writ. In so doing, this Court did a complete turnabout from Barcelon vs. Baker, 5 Phil, 87 [1905] and Montenegro vs. Castaneda, 91 Phil. 882 [1952] which enunciated the doctrine that the President's determination in suspending the privilege of the writ of habeas corpus is final and conclusive upon the courts.

I submit that Barcelon and Montenegro laid down the correct doctrine. The Lansang doctrine is based on naivete; it demonstrates a lack of contact with reality.

How can this Court determine the factual bases in order that it can ascertain whether or not the President acted arbitrarily in suspending the writ when, in the truthful words of Montenegro, "with its very limited machinery [it] cannot be in better position [than the Executive Branch] to ascertain or evaluate the conditions prevailing in the Archipelago?" (At p. 887.) The answer is obvious. It must rely on the Executive Branch which has the appropriate civil and military machinery for the facts. This was the method which had to be used in Lansang. This Court relied heavily on classified information supplied by the military. Accordingly, an incongruous situation obtained. For this Court relied on the very branch of the government whose act was in question to obtain the facts. And as should be expected the Executive Branch supplied information to support its position and this Court was in no situation to disprove them. It was a case of the defendant judging the suit. After all is said and done, the attempt by this Court to determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ lacks popular support because of one reason or another. But when this Court declares that the suspension is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it lends its prestige and credibility to an unpopular act.

Lansang was an empty victory for the petitioners. They won a battle but lost the war. It could be that this Court also lost something in the process. It raised expectations which it could not fulfill.

2. I cannot accept the statement in paragraph 27 of the main opinion that "because the privilege of the writ of habeas corpus remains suspended 'with respect to persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance of or on the occasion thereof, or incident thereto, or in connection therewith', the natural consequence is that the right to bail for the commission of the said offenses is also suspended."

In the instant case, the petitioners were arrested without warrant on April 21, 1982. However, a Presidential Commitment Order was issued against them on April 23, 1982 and on July 20, 1982 (after the petitions for the writ of habeas corpus had been filed) the petitioners were charged with rebellion before the Court of First Instance of Rizal in Criminal Case No. Q-21091.

The ponente says that they have no right to bail because "To hold otherwise would defeat the very purpose of the suspension" of the writ of habeas corpus. Another reason given to deny bail is Letter of Instructions No. 1211 issued on March 9, 1982, which stipulates that "4. When issued, the Presidential Commitment Order shall constitute authority to arrest the subject person or persons and keep him or them under detention until ordered released by the President or his duly authorized representative.

I submit that the petitioners are entitled to bail as a matter of right if they should apply for it.

The nature of LOI No. 1211 has been raised. Does it have the force of law or is it a mere directive to officers named therein, namely: The Minister of National Defense; The Chief of Staff, Armed Forces of the Philippines; The Chief, Philippine Constabulary; The Chief, Criminal Investigation Service; The Director-General, NISA; The Minister of Justice; The Director, National Bureau of Investigation; and The Solicitor General. To me the nature of LOI No. 1211 is irrelevant for the right to bail is guaranteed by a higher law-the Constitution.

The Constitution guarantees that "All persons, except those charged with capital offenses when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties. Excessive bail shall not be required. " (Art. IV, Sec. 18.) The penalty for rebellion is reclusion temporal. Hence rebellion is a non-capital offense and the petitioners should be granted bail by the court where their case is pending if they ask for it.

The suspension of the writ of habeas corpus and the fact that they are covered by a Presidential Commitment Order are of no consequence. Since the respondents have elected to bring the case of the petitioners to court, the court acquired complete jurisdiction over them. To say that the court cannot grant them bail is to diminish the court's jurisdiction.

It should be stated that Chief Justice Ricardo Paras and Justices Cesar Bengzon, Alex Reyes and Fernando Jugo shared the above opinion of Justice Tuason. Incumbent Chief Justice Enrique M. Fernando expressed the same opinion in Lansang.

It is also said that the view "if and when a formal complaint is presented, the court steps in and the executive steps out," will tend to induce the executive to refrain from filing formal charges as long as it may be possible. (See opinion of Chief Justice Concepcion in Lansang, op. cit. on p. 494.) The answer has long been given by this Court in Teehankee vs. Rovira, 75 Phil. 634 (1954) as follows:

What I have said above about the right of an accused to bail in non-capital cases applies mutatis mutandis to a person accused of a capital offense if the evidence of his guilt is not strong to be determined after a hearing as provided in the Rules of Court: "Sec. 7. Capital offense-Burden of proof. -On the hearing of an application for admission to bail made by any person in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution. ..." (Rule 114.)

Long after I had written my separate opinion in the above-entitled cases, the newspapers reported the arrest of Mayor Aquilino Pimentel of Cagayan de Oro City on grounds of national security. It was said that the arrest of Mayor Pimentel was effected pursuant to a Presidential Commitment Order (PCO).

It was also reported that Msgr. Patrick Cronin Archbishop of Cagayan de Oro City, requested President Ferdinand E. Marcos to lift the PCO because Pimentel was innocent of any wrong-doing.

The issues dated April 20, 1983, of Bulletin Today, Daily Express and Times Journal all report that President Marcos denied the request of Archbishop Cronin because he had no power to release Pimentel who was arrested and charged before a Regional Trial Court in Cebu City on very strong evidence that he provided arms, funds, and sanctuary to subversives.

It should be recalled the main opinion holds that the petitioners herein cannot be granted bail by the court where they stand charged with the crime of rebellion because to hold otherwise would defeat the very purpose of the suspension of the writ of habeas corpus and also because under LOI No. 1211, the release of persons arrested pursuant to a PCO can be effected only by order of the President or his duly authorized representative. And it should be noted that every PCO has the following operative last paragraph:

And yet in the case of Mayor Pimentel who was arrested by virtue of a PCO, the President no less said that the power to release Pimentel "as any lawyer will inform you," is not his but of the Regional Trial Court of Cebu City.

I am happy to be counted among the "any lawyer" mentioned by President Marcos for I believe, as I have stated in my separate opinion, that the petitioners herein are entitled to bail after they were charged in court with rebellion because "the court steps in and the executive steps out."

I concur in the dismissal of the petition. It is my considered opinion, as I have set forth in my ponencia in the case for Habeas Corpus-Josefina Garcia, petitioner, G.R. No. 61388, hereafter referred to as the Parong case, that when a person is arrested by virtue of a PCO or a PCO is issued after his arrest effected without warrant or with one issued by court, his detention becomes one without right to bail, even after charges have been filed against him in court. This is so because, under the circumstance that the rebellion is still continuing, perhaps with greater intensity, a captured or arrested rebel, or one in conspiracy with the rebels by acts in pursuance or in furtherance of the rebellion, is not arrested and detained with a view to his immediate prosecution. It is more for the purpose of detaining him as a military measure to suppress the rebellion. The suspension of the privilege of the writ of habeas corpus has the effect of deferring trial for certain specified crimes during the existence of the emergency, as I stated, citing legal writers and publicists,1 in the aforecited case of Parong, et al.

The reason is that a person cannot be prosecuted for a crime the commission of which has not yet come to an end as in the case of the existing rebellion. A person who kills another can and should immediately be prosecuted, because the killing itself constitutes the termination of the commission of the crime, as is generally true with the common statutory offenses. But a rebel, even when already captured or arrested and placed under detention, by reason of conspiracy with the rebels and their co-conspirators who are free, continues in a state of committing the crime of rebellion which is a continuing offense. If immediately prosecuted and by virtue thereof, allowed to be released on bail, the crime of rebellion being bailable, the detainee would certainly join his comrades in the field to the jeopardy of government efforts to suppress the rebellion, which is the rationale for the President being constitutionally empowered to suspend the privilege of habeas corpus in case of invasion, rebellion or insurrection, even mere imminent danger thereof, when public safety so requires. The President, however, may order the filing of charges in court and trial thereof forthwith held, or even release on bail, as his best judgment will dictate to him. But this is for the President alone to decide, without interference from the courts, he being in the exercise of his military power.

It is for this reason that I dissent from the majority opinion insofar as it would reiterate the doctrine of the Lansang case, being of the view that the earlier doctrine in the case of Barcelon vs. Baker and Montenegro vs. Castaneda which was superseded by the Lansang doctrine should be reverted to, as the more practical and realistic ruling, and more in consonance with the grant by the Constitution to the President of the power to suspend the privilege of the writ of habeas corpus in the case of the contingencies mentioned in the Constitution. Such power could be easily rendered nugatory if interference by the Supreme Court were allowed as when it is given the power of judicial review over the exercise of this particular presidential power. The doctrine of "political question" comes in to make it improper for the power of judicial review to be exercise by the said Court, which doctrine renders the exercise of the presidential power referred to non-justiciable. Justiciability of the controversy is the basic requirement for the exercise of the power of judicial review.

Moreover, the Lansang doctrine could easily be viewed as discriminatory against our incumbent President whose proclamation suspending the privilege of habeas corpus was held subject to judicial review, where similar proclamations of former Chiefs Executive, Governor General Wright and President Quirino, were held binding and conclusive upon the courts and all other persons. If this is so, as it can be safely surmised that the incumbent President cannot but feel discriminated against with the pronouncement of the Lansang doctrine, rectification is called for. Needless to state, I am one with Justice Abad Santos in his vigorous dissent against the reiteration of the Lansang doctrine as proposed in the majority opinion in the instant case.

Indeed, while the Supreme Court is said to be the Guardian of the Constitution, not all questions arising therefrom may be brought to it for judicial review as to whether a constitutional violation has been committed. The power of the President as the defender of the State has to be granted by the Constitution, for how else could such power be granted except by the instrument which is the repository of the sovereign will of the people. But certainly, the exercise of such power of defending the Nation is not to be subordinated to that of the Supreme Court acting as Guardian of the Constitution, for of what use is it to preserve the Constitution if We lose the Nation?