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.

The bench and bar and law scholars and students are in debt to the writer of the main opinion, Mr. Justice Concepcion, Jr., for his thorough and perceptive restatement of the constitutional and basic human rights of accused persons and detainees. The main opinion spotlights the grievances that persons detained or charged for the crimes of insurrection, rebellion, subversion, conspiracy or proposal to commit such crimes invariably bring to this Court. They complain, as petitioners do here, of being arrested without any warrant of arrest; of being kept in isolation and being denied of their constitutional right to counsel and to silence; of prolonged detention without any charges; of having been subjected to maltreatment and torture; and of their counsel and families undergoing great difficulties in locating or having access to them.

The State through the Solicitor General on the other hand invariably denies all such charges and submits affidavits of the arresting officers and detention custodian that detainees are afforded decent and humane treatment, further countering that such claims are merely calculated to arouse sympathy and as propaganda against the Government and its institutions.

Upon the filing of the petition at bar on July 13, 1982, the Court, in issuing the writ of habeas corpus, Resolved "to allow counsel for petitioner to visit and confer with the detainee in an atmosphere of confidentiality, consistent with reasonable security measures which respondents may impose." At the hearing held on July 22, 1982, the Court granted petitioner's plea for reinvestigation of the charges and to "appoint the (Quezon) City Fiscal to act as Commissioner of the Court and receive evidence of the charges made by petitioners before this Court of alleged torture and violation of their constitutional rights, particularly the right to counsel." The City Fiscal in due time submitted his report on the reinvestigation, affirming the existence of a prima facie case for rebellion against petitioner. In February this year, he submitted the voluminous transcript of the proceedings held before him and the evidence submitted to him without comment or recommendation on petitioner's charges of alleged torture and violation of constitutional rights. The "material and relevant" charges have not been taken up nor deliberated upon by the Court, but apparently will no longer be resolved by the, Court, as was expected at the time, since the main opinion directs now that "they should be filed before the body which has jurisdiction over them."1 On my part, I believe that the Court should go over the transcript and make some authoritative pronouncements on the charges at least of violation of petitioners' right to counsel.

I. The vital problem is to assure the enjoyment of such constitutional and basic human rights of the persons arrested, detained or charged, be they mere dissenters, subversives or hardened criminals. As observed in the main opinion, this is what distinguishes our country as a republican and democratic state from those arrested in totalitarian states who have no rights to speak of. This Court stands as the guarantor of the constitutional rights of all persons within its jurisdiction and must see to it that the rights are respected and not treated as paper rights.

These are the great rights guaranteed in the Bill of Rights (Article IV) of the Constitution:

Presumption of innocence and Rights of speedy and impartial trial and confrontation:

The main opinion deals with the scope and extent of these rights and a number of passages bears emphasis and reiteration, as follows:

The arresting officers, upon making the arrest, must inform the subject of the reason for the arrest and show him the warrant of arrest, if any. They must inform him of his constitutional rights to remain silent and to counsel. They must respect his right to communicate with his lawyer. No custodial investigation shall be conducted unless it be in the presence of his counsel. The right to counsel may be waived knowingly and intelligently and for such reason the waiver should be recognized only if made with the assistance of counsel. The detainee's right to confer with counsel at any hour of the day, alone and privately, should be respected.

II. Respondents' return in these cases, in asserting that "the allegations that petitioners have been denied their right to counsel are not true. They simply did not ask for one, " disregards the consistent injunction of the Court and of the law that the detainees need not bear the burden of asking for counsel but should be informed of their right to counsel. The return's assertion that "petitioners also waived the assistance of counsel during the investigation of their cases" also falls short of the requirement that such waiver be made with the assistance of counsel to assure the validity thereof.

The late Chief Justice Fred Ruiz Castro, in maintaining in his dissenting opinion in Magtoto vs. Manguera5 that the 1973 constitutional ban on uncounselled confessions should operate retrospectively to June 15, 1954 when Republic Act 1083 (amending Article 125 of the Revised Penal Code) was enacted recognizing the right of a detained person to counsel in any custodial inquest, and not prospectively only as to such confessions obtained after the effectivity of the 1973 Constitution, stressed anew that it is "the obligation on the part of any detaining officer to inform the person detained of his right to counsel before the very inception of custodial inquest." He enjoined us eloquently that "(I) hold no brief against custodial interrogation per se. But I do entertain mortal fear that when a detained person is subjected, without the assistance of counsel, to custodial interrogation by peace officers, official lawlessness could be the rule and not the exception. Witness the innumerable cases in the annals of adjudication where this Court has set at naught and declared inadmissible confessions obtained from detained persons thru official lawlessness. It is a verity in the life of our nation that people without influence and without stature in society have, more often than not, been subjected to brutal and brutalizing third-degree methods, if not actually framed, by many police agencies in this country. Instead of blinking our eyes shut to this reality, we must recognize it for what it is, (and) I am completely conscious of the need for a balancing of the interests of society with the rights and freedoms of the individual. I have advocated the balancing-of-interests rule in all situations which call for an appraisal of the interplay of conflicting interests of consequential dimensions. But I reject any proposition that would blindly uphold the interests of society at the sacrifice of the dignity of any human being," and echoed Justice Douglas' aphorism that the rights of none are safe unless the rights of all are protected.

In the recent case of Sobremonte vs. Enrile,6 the Court did not rule on the therein detailed assertions of maltreatment of the detainee, stating only that "redress for the alleged violation of Socorro's constitutional rights may be secured through appropriate civil, criminal or administrative charges."7 The case was dismissed for having become moot with the detainee's release from detention upon her filing the recommended P l,000.00-bail bond. But the Court decried that "all the effort, energy and manhours expended by the parties and their counsel, including this Court, ... could have been avoided had the officers of the AVSECOM and the ISAFP responded promptly to the inquiries of petitioner instead of giving her the 'run-round' by referring her from one office to another."

III. I join Mr. Justice Abad Santos' stand that notwithstanding the suspension of the privilege of the writ of habeas corpus and the issuance on March 9, 1982 of Letter of Instruction No. 1211 that the Presidential Commitment Order (PCO) constitutes authority to keep the subject person under detention "until ordered released by the President or his duly authorized representative," the higher and superior mandate of the Constitution guarantees the right to bail and vests the courts with the jurisdiction and judicial power to grant bail which may not be removed nor diminished nor abdicated. We cannot but so hold, if we are to be true to the fundamental precept that "The Constitution is a law for rulers and for people equally in war and in peace and covers with the shield of its protection all classes of men at all times and under all circumstances. "

The argument that otherwise the purpose of the suspension of the privilege would be defeated ignores the overwhelming capability of the State and its military and police forces to keep suspects under surveillance and the courts' imposition of reasonable conditions in granting bail, such as periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.

In my dissenting opinion in Buscayno vs. Military Commission,8 Ireiterated my adherence to the majority holding in the leading 1951 cases of Nava vs. Gatmaitan and Hernandez vs. Montesa9 (although it failed one vote short of the required majority of six affirmative votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief Justice) Cesar Bengzon and Associate Justices Pedro Tuason, Alex Reyes and Fernando Jugo that after formal indictment in court by the filing against them of an information charging rebellion with multiple murder, etc., accused persons covered by the proclamation of suspension of the privilege of the writ of habeas corpus are entitled to the right to bail. As stressed by then Chief Justice Ricardo Paras. "(T)he right to bail, along with the right of an accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it be contended that the suspension of the privilege of the writ of habeas corpus includes the suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the suspension of all his other rights (even the rights to be tried by a court) that may win for him ultimate acquittal and, hence, absolute freedom. The latter result is not insisted upon for being patently untenable, "

Then Chief Justice Paras stressed that "... The privilege of the writ of habeas corpus and the right to bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or implies the suspension of the right to bail, they would have very easily provided that all persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended. As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the suspension to only one great right, leaving the rest to remain forever inviolable."10 It is noteworthy and supportive of the prevailing stand since 1951 that the other great constitutional rights remain forever inviolable since the Constitution limited the suspension to only one great right (of the privilege of the writ of habeas corpus), that there has been no amendment of the Constitution to curtail the right to bail in case of such suspension notwithstanding the numerous constitutional amendments adopted after the 1973 Constitution.

The late Justice Pedro Tuason emphasized that "(T)o the plea that the security of the State would be jeopardized by the release of the defendants on bail, the answer is that the existence of danger is never a justification for courts to tamper with the fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, -yielding to no pressure of convenience, expediency or the so-called 'judicial statesmanship.' The Legislature itself cannot infringe them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are incompatible with stable government and a menace to the Nation, let the Constitution be amended, or abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil liberty are bound to protect and maintain undiluted individual rights."11

And former Chief Justice Cesar Bengzon then made the same forceful plea echoed these days by men of goodwill that respect for constitutional and human rights and adherence to the rule of law would help in the fight against rebellion and movement for national reconciliation, thus: "And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence to the principles of the Constitution together with an impartial application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges which the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunal of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission, will not, thru faulty or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principles uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, 'the Courts will favor personal liberty.'"12

IV. The most authoritative pronouncement in regard to the courts' judicial power to grant the constitutional right to bail is of course none other than the President's himself. In all the metropolitan newspapers of April 20, 1983, the President is reported to have "said that Pimentel has been charged with rebellion before the regional trial court of Cebu City and is therefore under the jurisdiction of the civil court and not only under the jurisdiction of the military by virtue of the PCO " In a telegram in reply to the appeal of Msgr. Patrick Cronin, Archbishop of Cagayan de Oro and Misamis Oriental, for lifting of the PCO on Mayor Aquilino Pimentel of Cagayan de Oro City, the President said that "(T)he disposal of the body of the accused, as any lawyer will inform you, is now within the powers of the regional trial court of Cebu City and not within the powers of the President."

The statement of the now Chief Justice in his separate opinion in Gumaua vs. Espino13 referring to his earlier concurring and dissenting opinion in Aquino vs. Military Commission No. 2,14 is most relevant, mutatis mutandis, thus: " 'Were it not for the above mandate of the Transitory Provisions [Article XVII, section 3, par. (2), 1973 Constitution], the submission of petitioner as to a military commission being devoid of jurisdiction over civilians elicits approval. The controlling principle, to my mind, is that supplied in the opinion of the United States Supreme Court in Duncan v. Kahanamoku [327 U.S. 304, 322 (1946)], a decision impressed with the greatest relevance inasmuch as it interpreted the specific section found in the Hawaiian Organic Act, which was also a feature of the Philippine Autonomy Act, the source of the martial law provision in the 1935 Constitution.' As was pointed out in the Duncan opinion penned by Justice Black: 'Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S. Ct. at page 6, 87 L. Ed. 3. Our system of government clearly is the antithesis of total military rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout the history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself.' ... The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, [it] was not intended to authorize the supplanting of courts by military courts."

V. The courts, and ultimately the Supreme Court, are therefore called upon to review all such cases and the accused's right to bail, pending trial and conviction or acquittal, on a case by case basis.ᇈWᑭHIL The courts with their procedural safeguards are then called upon to apply the Constitution and the Law and to grant bail for clearly bailable (non-capital) offenses and in capital offenses to determine whether or not evidence of guilt is strong, in consonance with guidelines laid down by the Supreme Court, as in the leading case of Montano vs. Ocampo15 (involving Senator Montano who was charged with multiple murders and frustrated murders), as follows:

As editorially commented in one daily,16 "(T)he danger, however, lies in the possibility that such means (PCO's) may not always be employed judiciously. In issuing a PCO the President in most cases must rely on field reports and recommendations filed by his subordinates, usually the military and the intelligence community. No one can totally dismiss the possibility that the President may be fed with false information in some instances. The consequences of such an error can only aggravate further the country's security problems." When such cases occur and executive relief is not obtained, the courts provide the means of securing redress from erroneous or wrongful arrests and detentions, and at the very least, as shown from past experience, serve as the means for bringing the matter to the President's attention and securing the needed relief.