Villavicencio vs Lukban Facts: Justo Lukban as Manila City's Mayor together with Anton Hohmann, the city's Chief

of Police, took custody of about 170 women at the night of October 25 beyond the latters consent and knowledge and thereafter were shipped to Mindanao specifically in Davao where they were signed as laborers. Said women are inmates of the houses of prostitution situated in Gardenia Street, in the district of Sampaloc. That when the petitioner filed for habeas corpus, the respondent moved to dismiss the case saying that those women were already out of their jurisdiction and that , it should be filed in the city of Davao instead. The court ruled in favor of the petitioner with the instructions; For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ; or (2) they could have shown by affidavit that on account of sickness or infirmity those persons could not safely be brought before the court; or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present.

Issue: The writ of Habeas Corpus was filed by the petitioner, with the prayer that the respondent produce around 170 women whom Justo Lukban et, al deported to Davao. Liberty of abode was also raised versus the power of the executive of the Municipality in deporting the women without their knowledge in his capacity as Mayor.

Held: The court concluded the case by granting the parties aggrieved the sum of 400 pesos each, plus 100 pesos for nominal damage due to contempt of court. Reasoning further that if the chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when calledupon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality.

We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded.

ZACARIAS VILLAVICENCIO, ET AL., petitioners,vs. JUSTO LUKBAN, ET AL., respondents.March 25, 1919 Facts Justo Lukban, who was then the Mayor of the City of Manila, ordered thed e p o r t a t i o n o f 1 7 0 p r o s t i t u t e s t o D a v a o . H i s r e a s o n f o r d o i n g s o w a s t o preserve the morals of the people of Manila. He claimed that the prostitutes were sent to Davao, purportedly, to work for an haciendero Feliciano Ynigo. Theprostitutes were confined in houses from October 16 to 18 of that year beforebeing boarded, at the dead of night, in two boats bound for Davao. The womenwere under the assumption that they were being transported to another policestation while Ynigo, the haciendero from Davao, had no idea that the womenbeing sent to work for him were actually prostitutes. The families of the prostitutes came forward to file charges against Lukban,A n t o n H o h m a n n , t h e C h i e f o f P o l i c e , a n d F r a n c i s c o S a l e s , t h e G o v e r n o r of Davao. They prayed for a writ of habeas corpus to be issued a g a i n s t t h e respondents to compel them to bring back the 170 women who were deportedto Mindanao against their will.During the trial, it came out that, indeed, the women were deported withouttheir consent. In effect, Lukban forcibly assigned them a new domicile. Most of a l l , there was no law or order authorizing Lukban's d eportation of the 1 7 0 prostitutes. Issue Whether we are a government of laws or a government of men.

Held We are clearly a government of laws. Lukban committed a grave abuse o f discretion by deporting the prostitutes to a new domicile against their will. There is no law expressly authorizing his action. On the contrary, there is a lawpunishing public officials, not expressly authorized by law or regulation, who compels any person to change his residence.Furthermore, the prostitutes are still, as citizens of the Philippines, entitled tothe same rights, as stipulated in the Bill of Rights, as every other citizen. Theirchoice of profession should not be a cause for discrimination. It may makesome, like Lukban, quite uncomfortable but it does not authorize anyone tocompel said prostitutes to isolate themselves from the rest of the human race. These women have been deprived of their liberty by being exiled to Davaowithout even being given the opportunity to collect their belongings or, worse,without even consenting to being transported to Mindanao. For this, Lukban etal must be severely punished. People vs Camerino

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-13484 May 20, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. DOMINADOR CAMERINO, MANUEL PAKINGAN, CRISANTO SARATAN, BIENVENIDO OSTERIA, ET AL.,defendants-appellees. Actg. Solicitor General Guillermo E. Torres and Solicitor Eriberto D. Ignacio for appellant. Avelino A. Velasco for appellees. MONTEMAYOR, J.: Dominador Camerino and eighty-six others were accused before the Court of First Instance of Cavite of the crime of sedition, said to have been committed on or about and during the period comprised by and between the months of October, 1953, to November 15, 1953 and for sometime prior thereto; under an information charging conspiracy among the said accused in having allegedly perpetrated for political and social ends, insistent, repeated and continuous acts of hate, terrorism and revenge against private persons, leaders, members and sympathizers of the Nacionalista Party in the town of Bacoor, Cavite, and frustrating by force, threats and violence, and intimidation the free expression of the popular will in the election held on November 10, 1953. The information described in detail the manner in which the alleged seditious acts were performed, specifying the dates and the places where

they were committed and the persons who were victims thereof, under fourteen different overt acts of sedition. Before arraignment, forty-eight of the eighty-seven accused, headed by Dominador Camerino, filed a motion to quash the information on the ground of double jeopardy, claiming in support thereof that they had been previously convicted or been in jeopardy of being convicted and/or acquitted of the offense charged in other cases of the same nature before the court. The Assistant Provincial Fiscal filed written opposition to the motion, saying that although it was alleged in the information that the accused had been charged with various crimes under different and separate informations, that would not place them in double jeopardy, because those previous charges were being specified in the information only as a bill of particulars for the purpose of describing in detail the offense of sedition, but not to hold the defendants liable for punishment under said separate and different specifications; in other words, the specifications describing separate crimes were alleged in the information merely to complete the narration of facts which constitute the crime of sedition. Later, all the accused filed a supplemental motion to quash, raising as additional grounds that more than one offense was charged, and that the criminal action or liability of said defendants had been extinguished. On March 14, 1956, the trial court issued an order sustaining the reasons of the motion to quash and dismissing the information on the grounds:(1) that the information charged more than one offense, (2) that it was vague, ambiguous and uncertain, (3) that it described crimes for which some of the accused had either been convicted or acquitted, and (4) some violation of the election law described in the specification had already prescribed. A motion for reconsideration filed by the Fiscal was denied. The Government is appealing from that order of dismissal, as well as the order denying the motion for reconsideration. In determining the present appeal, we deem it necessary to discuss only the first ground of the dismissal of the information by the trial court, namely, multiplicity of offenses, that is to say, that the information allegedly charged more than one offense. We agree with the Provincial Fiscal and the Solicitor General representing the Government that the accused herein were being charged only with one offense, namely, that of sedition, defined in Article 139 of the Revised Penal Code, as amended by Commonwealth Act No. 202, and penalized under Article 140 of the same code. the fourteen different acts or specifications charging some or all of the accused with having committed the offenses charged therein, were included in the information merely to describe and to narrate the different and specific acts the sum total of which constitutes the crime of sedition. Different and separate acts constituting different and separate offenses may serve as a basis for prosecuting the accused to hold them criminally liable for said different offenses. Yet, those different acts of offenses may serve merely as a basis for the prosecution of one single offense like that of sedition. For instance, one may be accused of sedition, and at the same time be prosecuted under another information for murder or homicide as the case may be, if the killing was done in pursuance of and to carry out the acts constituting sedition. In case of the People vs. Cabrera, 43 Phil., 64, this Tribunal said: The nearest analogy to the two crimes of murder and sedition growing out of practically the same facts, which can be found in the American authorities, relate to

the crimes of assault and riot or unlawful assembly. A majority of the American courts have held that the offense of unlawful assembly and riot and the offense of assault and battery are distinct offense; and that conviction or an acquittal for either does not bar a prosecution for other offense, even though based on the same acts. (Freeland vs. People (1855), 16 Ill., 380; U.S. vs. Peaco (1835), 27 Fed. Cas., 477; People vs. Vasquez (1905), 9 Puerto Rico, 488; contra, State vs. Lindsay (18868), 61 N.C., 458.) It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is a crime against public order; murder is a crime against persons. Sedition is a crime directed against the existence of the State, the authority of the government, and the general public tranquility; murder is a crime directed against the lives of individuals. (U.S. vs. Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of commotions or disturbances in the state; murder at common law is where a person of sound mind and discretion unlawfully kills any human being, in the peace of the sovereign, with malice aforethought, express or implied. The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law however nearly they may be connected in point of fact. Not alone are the offenses eonomine different, but the allegations in the body of the informations are different. The gist of the information for sedition is the public and tumultuous uprising of the constabulary in order to attain by force and outside of legal methods the object of inflicting an act of hate and revenge upon the persons of the police force of the city of Manila by firing at them in several places in the city of Manila; the gist of the information in the murder case is that the Constabulary, conspiring together, illegally and criminally killed eight persons and gravely wounded three others. The crimes of the murder and serious physical injuries were not necessarily included in the information for sedition; and the defendants could not have been convicted of these crimes under the first information. In the case of U.S. vs. Cernias, 10 Phil., 682, this Court held that while it is true that each of those acts charged against the conspirators was itself a crime, the prosecutor in setting them out in the information did no more than to furnish the defendants with a bill of particulars of the facts which it intended to prove at the trial, not only as a basis upon which to be found an inference of guilt of the crime of conspiracy but also as evidence of the extremely dangerous and wicked nature of that conspiracy. The charge is not defective for duplicity when one single crime is set forth in different modes prescribed by law for its commission, or the felony is set forth under different counts specifying the way of its perpetuation, or the acts resulted from a single criminal impulse. Neither is there duplicity when the other offense described is but an ingredient or an essential element of the real offense charged nor when several acts are related in describing the offense. (Padilla: Criminal Procedure Annotated, 1959 ed., p. 101). In the case of People vs. Bacolod, 89 Phil., 621, the defendant therein was convicted on a plea of guilty of physical injuries through reckless imprudence. Based on the same facts, he was also accused of having caused public disturbance. The plea of double jeopardy

interposed by the accused was rejected on the ground that the two offenses were not the same, although they arose from the same act. Following the reasoning of the trial court that more than one offense was charged, the trial court should have ordered that the information be amended, or if that was not possible, that a new information be filed. Under section 2 of this Rule, the Court may deny or sustain the motion to quash but may not defer it till the trial of the case on the merits. In sustaining the motion, the court may order the filing of a new information or may dismiss the case. In the new information, the defects of the previous information may be cured. For instance, if the motion to quash is sustained on the ground that more than one offense is charged in the information, the court may order that another information be filed charging only one offense. But the court may or may not issue such order in the exercise of its discretion. The order may be made if the defects found in the first information may be cured in a new information. If the order is made, the accused, if he is in custody, should not be discharged, unless otherwise, admitted to bail. But if no such order is made, or, having been made, the prosecuting attorney fails to file another information within the time specified by the court, the accused, if in custody must be discharged, unless he is also in custody for another charge, or if is out on bail, the bail must be exonerated. In such event, however, the fiscal is free to institute another criminal proceeding since such ground of objection is not a bar to another prosecution for the same offense. (Moran, Comments on the Rules of Court, 1957 ed., Vol. II, pp. 778-779). In conclusion, we hold that the information filed in this case did not charged more than one offense but only that of sedition; that in specifying the separate and different criminal acts attributed to the defendants, it was not the purpose or intention of the Government to hold them criminally liable in the present proceedings, but merely to complete the narration of facts, though specifying different offenses which as a whole, supposedly constitute the crime of sedition. Consequently, we believe that the information is valid. We deem it unnecessary to discuss the other points raised in the appeal. In view of the foregoing, the appealed orders are hereby set aside and the case is hereby remanded to the trial court of further proceedings, without pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, and Gutierrez David, JJ., concur.

US vs Cabanag

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 3241 March 16, 1907

THE UNITED STATES, plaintiff-appellee, vs. TOMAS CABANAG, defendant-appellant. J.F. Boomer for appellant. Attorney-General Araneta, for appellee. TRACEY, J.: The accused, an Igorot, was convicted in the Court of First Instance of Nueva Vizcaya of the crime of unlawful detention, under article 481 of the Penal Code, which punishes "any private person who shall lock up or detain another or in any way deprive him of his liberty." An Igorot orphan girl called Gamaya, 13 years of age was taken from the possession of her grandmother, Ultagon, in the rancheria of Anao, in the Province of Nueva Vizcaya, by one Buyag, also an Igorot; whether this was done with or against the will of the grandmother is not altogether clear in the evidence. We accept the version least favorable to the accused that of the child who testified that in the daytime Buyag came to the house and took her away, although the grandmother objected, saying "Do not take off that little girl," but not speaking when she went away. The man brought her to his house, about a half mile distant, where she was not confined, but on the contrary was allowed to go back alone to her grandmother, with whom she would spend a little while, returning the same day. She testified that on last evening, the grandmother was angry and did not wish her to go, but did not prevent her. According to her recollection she remained with Buyag, in the vicinity of her grandmother's residence, some two or three months. Buyag testified that more than two years before, in order to help the family after the father's death and for the purpose of keeping the child at home, he had bought her for three pigs, twenty-five hens, two measures of rice, and a cloak worth two pigs, from her mother, with whom she remained until the third year, when (her mother presumably having died) she was brought away by one Eusebio, at the instance of himself and another Igorot named YogYog, who had furnished part of the purchase price. Together they instructed Eusebio to sell her for a carabao and 50 pesos. Eusebio, in the Province of Nueva Vizcaya, and sold her to the accused, Tomas Cabanag, for 100 pesos.

In respect to this last sale, the stories of Tomas, Antonia, and the girl substantially agree. Cabanag had previously been instructed to buy a girl by one Mariano Lopez of Caoayan, to whom after a few days Gamaya was delivered in return for the price, which appears to have been 200 pesos. In his hands she remained for about two months until she was taken away by an officer of Constabulary. Afterwards this prosecution was instituted. Although Gamaya made objection to leaving the house of Cabanag she appears to have gone without actual constraint and at no time in any of these places was she physically restrained of her liberty; she was not under lock or key or guard, went into the street to play, returned at will, and was not punished or ill used in any way, but was employed about the household tasks; in short, she appears to have been treated by Mariano Lopez as a household servant and to have been well earned for while in the custody of the accused. It is proved in the case that it is an Igorot custom to dispose of children to pay the debts of their fathers, the transaction in the native language being termed a sale, and the defendant appears to have engaged in the business of buying in Nueva Vizcaya children to sell in the lowlands of Isabela. In his sentence, the judge below said: However much may be said in extension of the alleged custom among the ignorant Igorots of seizing and abducting children for the sale and even in selling their own children voluntarily, there is nothing in all this to palliate or extenuate the conduct of the accused in this case. The Congress of the United States has declared that human slavery shall not exist in these Islands and while no law, so far as I can discover, has yet been passed either defining slavery in these Island of fixing a punishment for those who engage in this inhuman practice as dealers, buyers, sellers or derivers, the facts established in this case show conclusively that the child Gamaya was by the defendant forcibly and by fraud, deceit and threats unlawfully deprived of her liberty and that his object and purpose was an unlawful and illegal one, to wit, the sale of the child, for money, into human slavery. This constitutes the crime of detencion ilegal, defined and penalized by article 481 of the Penal Code and this court finds the defendant guilty and charged in the information. There are neither extenuating nor aggravating circumstances found in the case. The court therefore sentence the accused, Tomas Cabanag, to eight years and one day of prision mayorand to pay the costs of this instance with the accessories of the law. This sentence can not be sustained. There can be no unlawful detention under article 481 of the Penal Code without confinement of or restraint of person, such as did not exist in the present case. (U.S. vs. Herrera, March 28, 1904, 3 Phil. Rep., 515.) Under the complaint for this crime it is possible to convict for coaccion upon proof of the requisites of that offense (U.S. vs. Quevengco, 2 Phil. Rep., 412), but among those requisites is that of the violence through force or intimidation, even under the liberal rule of

our jurisprudence (U.S. vs. Quevengco, supra; U.S. vs. Vega, 2 Phil. Rep., 167; U.S. vs. Ventosa,1 4 Off. Gaz, 573); consequently the charge of coaccion against the accused can not be sustained upon the evidence. The Penal Code, chapters 2 and 3, title articles 484 to 490, provides punishment for those who carry off children under 7 years of age or those who devote children under 16 years of age to certain hazardous occupations; but none of these articles can apply to the case before us, except article 486, which punishes him who induces a child over 7 years of age to abandon the house of its parent or guardian. Under this article it is possible that on full proof of the facts, Buyag might be held, but not the accused. It was not design of the law to prevent parents or grandparents from devoting their children to customary work, nor from receiving compensation for such work in wages or otherwise. Such agreements binding out minors are sanctioned in most countries, usually however, subject to stipulations for their welfare expressly prescribed by statute. In the absence of proof of what the agreement of the parties or the custom of the people called for in respect of the use, treatment, and care of the child, the term of her service and her final disposition, and particularly in respect of the maintenance of her relations with her grandmother and the prospect of an ultimate return to her, it is not possible to hold that the arrangement was a criminal or even an illicit one. The name applied to it by the custom of the Igorots is not enough to establish that in truth and in effect it was a sale, or anything more than a contract for services. While there is thing more than a contract for services. While there is much in this practice to condemn, we do not feel it to be our province to strain the law in order to bring this local custom of this mountain people to an end. This condition may present matter for the consideration of the legislature but not for action by the criminal courts. Not even the abhorrent species of traffic apparently carried on by the accused justifies a sentence not authorized by law. The judge below quotes the Bill of Rights of the Philippines contained in the act of Congress of July 1, 1902, declaring that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in said Islands." This constitutional provision is self-acting whenever the nature of a case permits and any law or contract providing for servitude of a person against his will is forbidden and is void. For two obvious reasons, however, it fails to reach the facts before us: First. The employment or custody of a minor with the consent or sufferance of the parents or guardian, although against the child's own will, can not be considered involuntary servitude. Second. We are dealing not with a civil remedy but with a criminal charge, in relation to which the Bill of Rights defines no crime and provides no punishment. Its effects can not be carried into the realm of criminal law without an act of the legislature. It is not unnatural that existing penal laws furnish no punishment for involuntary servitude as a specific crime. In the Kingdoms of the Spanish Peninsula, even in remote times, slavery appears to have taken but a surface root and to have been speedily cast out, the institution not having been known therein for centuries. It is only in relation to Spain's possessions in the American Indies that we find regulations in respect to slavery. In general they do not apply in their terms to the Philippine Islands where the ownership of man by his fellow-man, wherever it existed, steadily disappeared as Christianity advanced. Among the savage

tribes in remote parts, such customs as flourished-were not the subject of legislation but were left to be dealt with by religious and civilizing influences. Such of the Spanish laws as touched the subject were ever humane and radical. In defining slavery, law 1, title 21 of the fourth Partida, calls it "a thing against the law of nature;" and rule 2, title 34 of the seventh Partida says: "It is a thing which all men naturally abhor." These were the sentiments of the thirteenth century. To sum up this case, there is no proof of slaver or even of involuntary servitude, inasmuch as it has not been clearly shown that the child has been disposed of against the will of her grandmother or has been taken altogether out of her control. If the facts in this respect be interpreted otherwise, there is no law applicable here, either of the United States or of the Archipelago, punishing slavery as a crime. The child was not physically confined or restrained so as to sustain a conviction for illegal detention, nor are the acts of the accused brought within any of the provisions of the law for the punishment of offenses against minors; consequently the conviction in this case must be reversed, in accordance with the recommendation of the Attorney-General, with costs de oficio, and the prisoner is acquitted. After the expiration of ten days let judgment be entered in accordance herewith and ten days thereafter let the case be remained to the court from whence it came for proper action. So ordered. Arellano, C.J., Torres, Mapa, Carson, and Willard, JJ., concur.

People vs Gungon

N BANC

[G.R. No. 119574. March 19, 1998]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee vs. ROBERT GUNGON y SANTIAGO and VENANCIO ROXAS y ARGUELLES, accused,ROBERT GUNGON y SANTIAGO, accused-appellant. DECISION
PER CURIAM:

For a direct automatic review by this Court, conformably with Article 47 of the Revised Penal Code, as amended by Section 22 of Republic Act No. 7659, is the decision, dated 15 February 1995, of the Regional Trial Court (RTC) of Quezon City, Branch 96, convicting accused-appellant Roberto Gungon Y Santiago of the crimes of

kidnapping and serious illegal detention with frustrated murder, of carnapping and of robbery in three separate Information filed against him and two other persons. [1] The informations averred In Criminal Case No. 94-54285 for Kidnapping and Serious Illegal Detention with Frustrated Murder

That on or about January 12, 1994 in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there by means of force, violence against and intimidation of person and at gunpoint, willfully, unlawfully, and feloniously kidnap, carry away and detain AGNES GUIRINDOLA, a female, thereby depriving her of her liberty, and thereafter bring her to an uninhabited place in Barangay Bagong Pook, San Jose, Batangas and then and there, with intent to kill and with treachery, evident premeditation, and abuse of superior strength, willfully, unlawfully and feloniously shoot her in the face with a hand gun, thus performing all the acts of execution which would produce the crime of MURDER as consequence, but which, nevertheless, do not produce it by reason of causes independent of the will of the accused , that is, the able and timely medical assistance given to said Agnes Guirindola which prevented her death, resulting to her utmost grief, sorrow, sufferings and sleepless night, compensable in actual, moral and exemplary damages in such amounts as may be awarded to them under the provisions of the Civil Code of the Philippines.
CONTRARY TO LAW.[2] In Criminal Case No. 94-54286 for Carnapping

That on or about January 12, 1994, in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating and mutually helping one another, with intent to gain and by means of force, violence against and intimidation of person and at gunpoint, did then and there, willfully, unlawfully and feloniously, take and carry away one Nissan Sentra Model 1993 with Plate No. TKR-837, then driven by Agnes Guirindola in such amount as may be awarded to them under the Civil Code of the Philippines.
CONTRARY TO LAW.[3]

- and In Criminal Case No. 94-54287 (amended) for Robbery

That on or about January 12, 1994 in Quezon City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together, confederating and mutually helping one another, with intent to gain and by means of force, violence against and intimidation of person and at gunpoint, did then and there, willfully, unlawfully and feloniously, while on board the motor vehicle of AGNES GUIRINDOLA, a 1993 Nissan Sentra with Plate No. TKR-837, and in the course of its trip, divested and robbed said Agnes Guirindola of the following cash, check and personal belongings, to wit: Cash Check Pieces of jewelry valued at P1,000.00 3,000.00 34,000.00

and in the course of execution thereof, shoot and fatally wounded Agnes Guirindola with a handgun, which is clearly unnecessary in the commission of the crime, to the damage and prejudice of said Agnes Guirindola, in such amount as may be awarded to her under the provisions of the Civil Code of the Philippines.
CONTRARY TO LAW.[4] The trial court gave a full account of the evidence submitted by the prosecution that led to the indictments. It was about 3:30 in the afternoon of 12 January 1994. Agnes Guirindola, a 20-year old De La Salle University student, was driving a red Nissan Sentra car with Plate No. TKR-837 along Panay Avenue, Quezon City, on her way to a bookstore, and thereafter, to fetch her mother, Mrs. Elvira Guirindola, from work when a man, passing himself off as a traffic enforcement officer and wearing a PNP reflectorized vest, flagged her down and motioned her to execute a U-turn towards him. She complied. Lowering the right front window of her car, she asked the man, whose name she later learned to be Venancio Roxas, what traffic violation she had committed. Roxas replied that she had wrongly traversed a one-way street where, barely two days ago, a little girl had figured in an accident. Agnes surrendered her drivers license. Roxas, giving her what appeared to be a ticket, remarked, Miss, kunwari pirmahan mo ito,[5] but seeing that it was not the usual traffic ticket, she merely put a check sign and returned it. Roxas told her to open the door. He came on board the car and directed Agnes to proceed to the next intersection where Roxas motioned her to turn left. After executing a left turn, she stopped and handed over to him a fifty pesos (P50.00) bill which he accepted. He then returned her license. Agnes asked Roxas where she could drop him off, instead, he suddenly pointed a gun at her and switched off the engine, saying, Miss kailangan ko lang ito, [6] referring

to the car. Agnes started to cry. She pleaded with Roxas to let her go and not harm her. Instead, Roxas unlocked the rear door to let another man in. The man, identified in open court as accused-appellant Roberto Gungon, immediately reclined her seat and pulled her over to the back seat by her arms while Roxas promptly slid into the drivers seat. She was told that they were taking her to Philcoa but, after glancing at his beeper, Gungon, told Roxas, Boss, negative Philcoa.[7] Roxas nodded. After a while, Gungon spoke to Roxas, Boss, dalhin na natin siya sa dati at doon na natin i-s.[8] to which Roxas again simply nodded his head without a word. Agnes, now really scared, took out a rosary from her bag and prayed. Momentarily, Roxas pulled over and alighted from the vehicle while Gungon held Agnes and poked a gun at her. When Roxas returned, he had with him a bottle of softdrink and skyflakes which he offered to Agnes. Agnes refused to drink after seeing some tablets floating inside the bottle. Gungon tried to persuade Agnes to take the drink, advising her, Sige na, makakatulong ito sa iyo.[9] The car stopped a second time to load gas at a gasoline station. Escape was nil; Guirindola made sure of that. The car thereafter proceeded southwards and on to the South Superhighway. Roxas took time out from the wheel at a deserted area to allow him and Gungon to relieve themselves one after the other. Back on the road, Roxas told Gungon to have Agnes partake of the softdrink but she continued to resist. Agnes took out her wallet to get a prayer leaflet Gungon saw a picture and asked Agnes who it was in the photograph. She replied that it was her sister. Gungon then also took out some pictures from his wallet to show to her, identifying one photograph as that of his niece and two others as those of his girlfriend and of Roxas and his girlfriend and child. Once again, Gungon insisted that she take the drink. Fearing his menacing look and the gun pointed at her, she took a sip from the bottle. She was, still later, also forced to swallow two tablets which Roxas gave to Gungon. She took the tablets but had them under her tongue. When asked what she wanted to eat, she said she would prefer a McDonalds sandwich. The car stopped at a bakery shop, where she noticed the address on the signboard reading, Sto Tomas Batangas. Roxas went out and returned with a taisan cake which he handed over to Agnes but she just held it. Time passed, and somehow she lost consciousness. It was about 9:30 p.m. when she found herself lying at the back seat with her legs on the lap of Gungon. She noticed that her pieces of jewelry, bracelets, earrings, ring, necklace and a wristwatch, as well as cash, were missing and that her pair of shoes had been removed. She was told that the items were just being meanwhile kept for her. The pair of shoes, however, were returned to her. By this time, a third man was already seated in front of the car with Roxas. When it was her turn to relieve herself, Roxas stopped the car at a deserted area. Gungon escorted her to a place not far away from the car. Just as she was getting up, after relieving herself, she saw a white spark to her right and she fell. She was shot. Feeling weak and unable to get up, she was still able to get a glance at Roxas walking back to the car. Then she passed out. When she came to, Roxas, Gungon, and the third man, as well as the car, were nowhere insight. She managed to get up and slowly walked down the road until she

reached a small house. Inside were two kids and a teenager, who, apparently shocked by her appearance, hurriedly left. She was bleeding profusely from the neck and face. She looked around the house but not finding anyone, she went to the sala to lie down. People soon arrived on a vehicle. She again lost consciousness and regained it only at the Batangas Regional Hospital.[10] The hospital, which was ill equipped to give full medical treatment advised her to transfer to a Manila hospital. The medical certificate described the gunshot wound: Gunshot wound, POE, Zygomatic area (R), POX Sub-mandibular area (L); Fx, zygomatic arch & condylar area, (R) Sec to GSW; Submandibular Gland Involvement with sinus tract.[11] Recounting the circumstances that paved the way for the ultimate arrest of Gungon, the trial court narrated:

xxx. The crimes charged herein could have easily remained unsolved because the victim did not know any of her tormentors. That she was abandoned in a dark and far away place strange to her, having been saved from the claws of sure death only by her abductors false belief of having already done her in with a single gunshot, would have made the escape of the criminals irreversible. Fate had it that her survival spelled the beginning of her tormentors undoing, for her ordeal was immediately brought to the attention of the NBI which moved and investigated without delay and hesitation. Cartographic sketches drawn from the recollections of the victim later started the procedure to identify the unknown perpetrators. The alacrity, coordination, and ingenuity of NBI agents Regner Feneza and Miralles led to the success of the procedure. Feneza recounted that on January 17, 1994 he met at the NBI offices in Manila with Miralles, who was earlier assigned to the case of Agnes, because Miralles had left word that he wanted to consult with Feneza. It seems that Feneza was the agent handling the Virginia Samaniego Villena case, another kidnapping case where the modus operandi had striking similarities with the kidnapping of Agnes. In their meeting, Miralles showed and lent to Feneza the cartographic sketches in the Agnes kidnapping. Feneza referred to his Villena files and discovered a distinct similarity of a cartographic sketch to some of the Villena suspects with pictures in his files. With Miralles permission, Feneza met with and talked to Agnes at the V. Luna Medical Center, and showed her about 3 or 4 pictures from his files. As Feneza testified: When I gave the pictures to her, she looked at them and she positively identified one in the pictures to be one of her abductors, she nearly fainted at that time. Agnes had thereby positively identified Roberto

Gungon, whom Feneza had already met in October or November, 1992 in connection with the Villena case. He reported this breakthrough to his superiors, who immediately authorized the search for Gungon. Gungon could not be arrested sooner. Based on information given to the NBI, he and his live-in partner had left Manila by car on a Wednesday, passed through Catbalogan Samar, and were bound for Davao. According to Feneza, an informant provided the information about Davao being the final destination; he testified: Before he left, he left his pocket bell to somebody whom he was able to talk to. At the same time; they were calling a person and they told this person that they were in Legaspi about to board a ferry boat going to Davao. The information, Feneza disclosed how the NBI discovered the informant. It seems that Manila Prosecutor Alice Vidal had been approached by a certain Mrs. Atencio, supposedly Gungons mother-in-law, to confide Gungons whereabouts and to seek help; Prosecutor Vidal, in turn, notified the Makati Police Department, which happened to be collaborating with the NBI on the case. The Makati Police Department relayed the developments to NBI, which sent agents to meet with Mrs. Atencio in the office of Prosecutor Vidal, and it was there where Mrs. Atencio disclosed the destination of Gungon and his partner. The pocketbell beeper was subsequently delivered my Mrs. Atencio to Feneza in Cubao, under a receipt. Feneza and fellow agent Arnold Lazaro flew to Davao on the following Friday, still in January, but Gungon and his partner could arrive there only on Saturday. On Sunday evening, the agents located the arrested him and detained him at their Regional Office in Davao. They flew him back to Manila of the first available flight on Monday. At the lineup held on February 1, 1994 at the NBI offices in Manila, Agnes picked Gungon out and positively identified him as one of her kidnappers.
After the lineup identification, the NBI checked the contents of the blue bag that Gungon had brought along from Davao and found therein, among others, a Nissankey chain with a key; a picture of a woman, another picture of a man (Venancio Roxas), woman, and child; and a rosary. These articles were turned over to the NBI evidence custodian and were later presented in court. Feneza and Lazaro prepared their joint affidavit and other papers before transmitting the matter to the Department of Justice. Feneza readily identified and pointed to Gungon in open court during trial. [12] The defense version varies materially from that given by the prosecution. Roberto Gungon, an employee of the Metropolitan Manila Authority, testified that between 3:30 and 4:00 oclock in the afternoon of 12 January 1994, he had just come from a friends house and was waiting for a taxicab along Panay Avenue, Quezon City, when a car stopped in front of him. It was Venancio Roxas, an acquaintance he once

met at a New Years party, who asked him where he was going. Gungon replied that he was waiting for a taxicab to get him to Cubao. Roxas, who was with a lady companion, opened the door of the car and said, Halika na, at idadaan ka na namin. He boarded and sat at the rear. Roxas drove towards Cubao. Gungon alighted at the foot of the underpass in Cubao, only to again board the car when Roxas invited him to go with them to Batangas. Roxas proceeded to the South Superhighway with Agnes in the front right seat. On the way, Agnes reminded Roxas that her mother was waiting for her. Agnes took out her wallet and showed Gungon her ID, her pic ture, and her sisters picture, and in turn, he, too, drew out his wallet from his pocket and showed Agnes his wifes picture. The car stopped at a bakery in Sto. Tomas, Batangas, where Agnes and Roxas alighted to buy a piece of cake and some softdrinks. Tired, after along drive, Gungon and Agnes had both fallen asleep. She awoke after some time and requested that the car stop to allow her to relieve herself. Gungon later learned from an investigator that the place was somewhere in Batangas City. Roxas accompanied Agnes. Gungon was left alone in the car. After about 3 to 5 minutes, he heard a gunshot and felt that something untoward had happened. He lowered the car window to look, and he saw someone, whom he presumed to be Roxas, coming towards his direction, holding a gun. Agnes was not with him. Out of apprehension, he alighted from the car, ran away, and hid in the nearby trees until Roxas finally drove away. He took a bus back to Manila, reaching home at about 10:30 that evening.[13] In its decision, promulgated on 15 February 1995, the RTC, Hon. Lucas P. Bersamin presiding, concluded:

WHEREFORE, judgement is hereby rendered finding the accused ROBERTO GUNGON y SANTIAGO guilty beyond reasonable doubt: 1. In Criminal Case No. Q-94-54285, for kidnapping and serious illegal detention with frustrated murder, and sentencing him to death. 2. In Criminal Case No. Q-94-54286, for carnapping, and sentencing him to suffer the indeterminate penalty of imprisonment form eighteen (18) years, as minimum, to twenty five (25) years, as maximum; and, 3. In Criminal Case No. Q-94-54287, for robbery, and sentencing him to suffer the indeterminate penalty of four (4) years of prision correctional, as minimum, to eight (8) years of prison mayor, as maximum. The accused shall be credited with the entire period of his preventive imprisonment in accordance with Art. 29, Revised Penal Code, provided he is qualified thereof pursuant to said legal provision.

The accused Gungon is further ordered to pay to Agnes Guirindola, as offended party, moral damages in the amount of P1,000,000.00, actual damages ofP36,161.83, representing her hospitalization and surgical expenses, and P35,000.00, representing the value of the lost personal valuables and cash, with interest on all the sums at the legal rate from the filing of the informations herein until full payment; and P50,000.00 as exemplary damages; to Mrs. Elvira Guirindola, as owner of the Nissan Sentra car involved in the carnapping case, the sum of P218,757.90, plus interest at the legal rate from the filing of the information until full payment; and double cost of suit.
These cases shall be archived as far as they concerned Venancio Roxas y Arguelles.[14] In the instant appeal, Gungon has continued to assert his innocence, assigning the following errors allegedly committed by the trial court:
I

THE TRIAL COURT GRAVELY ERRED IN RULING THAT APPELLANT GUNGON AND ROXAS CONSPIRED TO COMMIT THE CRIMES SUBJECT OF THE INSTANT APPEAL.
II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT GUNGON OF THE COMPLEX CRIME OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION WITH FRUSTRATED MURDER.
III

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT GUNGON OF THE CRIME OF ROBBERY.
IV

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT GUNGON OF THE CRIME OF VIOLATION OF REPUBLIC ACT NO. 6539 OTHERWISE KNOWN AS THE ANTI-CARNAPPING ACT.[15] Appellants challenges, in essence, would revolve on the issue, once again, of credibility of witnesses. In monotone, this Court has constantly ruled that in the determination of the veracity of testimony, the assessment by the trial court is accorded the highest degree of respect and will not be distrubed of appeal unless, of course, it is seen to have acted arbitrarily or with evident partiality. Contrary to appellants contention, however, it is the Courts view that the trial court has taken due care in evaluating the testimonies given at the witness stand. This much would easily be apparent from the following excerpts of the appealed decision.

Upon thorough consideration of the evidence, the Court finds the testimony and version of Agnes to be the truth of what transpired on January 12, 1994

and that there was no credible fact or circumstance presented in the entire course of the trial, including her cross-examination by the Defense, by the which the neutral objective, and uninvolved mind could reasonably doubt her sincerity and trustworthiness. The complainant and the accused were subjected to the closest personal observation during their stints as witnesses. There were contrasts in their demeanors on the one hand, the victim was firm, sincere, and collected when she narrated even the most painful parts of her ordeal, easily impressing the Court by her straightforward manner and strong recall of the details; while, on the other hand, although Gungon tried very much to appear cool and composed, he could not deceive the Court by hiding behind the veneer of his feigned expressions and concealing what happened by a clever faade of denials. xxx xxx xxx

Gungon failed the test of credibility by relying on an implausible defense and on mere denials. To decide issues of credibility, the testimonies of witnesses are tested for their plausibility of probability, i.e., whether they were contrary to the natural course of things, or to common observation, experience, and common sense, or to contrary to natural laws, or exhibit incredible coincidences. Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our knowledge, observation, and experience. Whatever is repugnant to these belongs to the miraculous and is outside of judicial cognizance.[16] The defense, verily anchors itself on the bare denial of appellant of the specific acts imputed by the prosecution against him. Certainly, this negative assertion cannot prevail over the unimpeached testimony of the victim describing in sufficient detail the active participation of appellant in the commission of the crimes charged. In the face of the clear and positive declaration of the victim herself, the defense of denial hardly assumes probative value and sinks down the drain even further with the absence of any evidence of a sinister or nefarious motive on the part of the complainant to impute a crime so grave a wrong as that made out in the Information. The argument that the finding of conspiracy between appellant and Venancio Roxas to commit the crimes charged has been based by the trial court merely on inferences, conjectures and presumptions is bereft of merit. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.[17] The proof of the agreement need not rest on direct evidence; [18] the agreement itself may be inferred from the conduct of the parties disclosing a common understanding among them relative to the commission of the offense.[19] Jurisprudential account tells us consistently that the conduct of the accused before, during, and after the commission of the crime may be considered to show an extant conspiracy.[20]

The trial court, exhibiting keen perception on the whole bulk of evidence before it, has come up with a number of observations not only to prove conspiracy but likewise to establish appellants own part therein.

1. Gungons presence on Panay Avenue and his meeting with Roxas were not purely coincedental and by chance but intentional and prearranged. Roxas was representing himself to Agnes as a traffic officer by his wearing of the PNP reflectorized vest while Gungon was employed by the MMA, which had a direct connection with the functions assumed by Roxas. Roxas and Gungon were associated with each other far longer than the latter has admitted. xxx xxx xxx

2. Gungons insistence that Roxas was only a casual acquaintance is rejected as devoid of truth because it is inconsistent with and contrary to the established facts and circumstances. The records already showed that Gungon knew several personal circumstances about Roxas, including the fact that Roxas was formerly employed at MMA and that Roxas was unemployed when the incident tool place, but was the president of a homeowners association in Commonwealth Avenue. Moreover, Gungons conduct in relation to Roxas during the entire duration of the trip from Panay Avenue to Batangas City, be it judged from Agnes point of view or from Gungons own, exhibited a deeper and closer familiarity and association that Gungon would admit. He called Roxas boss, an appellation of familiarity, if not also subordination. He never protested his being invited to the unplanned Batangas trip. He never asked who Agnes was, not where Roxas and Agnes had come from. In any case, even assuming that Gungon, indeed, just happened to be on Panay Avenue that afternoon, implying thereby that he had no prior understanding with Roxas to meet thereat and also indicating thereby that their acquaintance was merely casual, the Court is still puzzled: (a) why Roxas on his part, should have stopped for him; should have offered to convey him to wherever he was going; and should even invite him to go on the unplanned trip to distant Batangas without notice to the latters family, unless they were more familiar and closer, and (b) why Gungon, on his part, should have agreed to go to Batangas unless he was in on the plans of Roxas. The unbelievable unnaturalness of Gungons disavowal of his connection with Roxas rendered his testimony suspect and implausible. xxx xxx xxx

4. Another inconsistency was detected between Gungons allegations, on one hand, that he concealed himself in the nearby trees from the returning Roxas after the shooting of Agnes and allowed Roxas to leave in the Nissan car without him, so that he returned to Manila by bus, and, on the other hand, that the Nissan keychain and the key of the bar lock were recovered from his blue bag. If he was to be believed, how did he come into the subsequent possession of the keychain and the key unless he and Roxas had met after the shooting? xxx xxx xxx

6. On account of his admitted presence during the trip, although protesting his innocence, the Court has also carefully analyzed Gungon's conduct following the criminal incidents and found such conduct indicative of guilt rather than innocence. Despite his insistence to the contrary, he knew that at least one serious crime had been perpetrated because he had heard a shot and had seen Roxas returning with a firearm at hand but without Agnes. Yet, he never reported the incidents to anyone else, most of all to the authorities, despite his allegations that he thereafter continued to report to work at MMA. The civicminded and dedicated public servant that he alleged himself to be notwithstanding, he did not impress the Court that he was truly guiltless because of his unexplained failure to report to the authorities.
On the matter of the Davao land trip being taken on January 28, 1994, the Court must have to consider it as positively indicative of flight. It should first be mentioned, as a premise for this conclusion, that Gungon inextricably contradicted himself on this point, since, in his direct testimony, he cited the calls made by somebody about two or three days before to the office of Ms. Atencio asking her to meet a person near the Makati Police Department about an alleged estafa case in relation to a roofing transaction as justification for the trip, implying that it was sudden and unplanned; whereas, in the cross-examination, he stated that he and his wife had planned the Davao trip for vacation purposes even before New Years Day, 1994. Aside from negatively reflecting of Gungons testimonial integrity, such self-contradiction, not being a merely minor or inconsequential development in the Defenses presentation, exposed the Davao trip to be for what is was the flight of a guilty man.[21] It would defy logic and common sense to conclude that the above circumstances and events implicating appellant to the crime were all purely coincidental. Nor did the trial court err in convicting appellant of the crime of kidnapping and serious illegal detention. Article 267 of the Revised Penal Code defines the felony thus:

Art. 267. Kidnapping and serious illegal detention.

Any private individual who shall kidnap or detain another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua to death. 1. 2. If kidnapping of detention shall have lasted more than three days. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4. If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purposes of extorting ransom from the victim or any other person, even if none of the circumstances abovementioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is subjected to torture or dehumanizing acts, the maximum penalty shall be imposed. (As amended by Sec. 8, Republic Act No. 7659).(Underscoring ours.)
The crime of kidnapping and serious illegal detention consists not only in placing a person in an enclosure but also in detaining that person or depriving him in any manner of his liberty.[22] Actual restraint of the victims liberty was evident in the instant case from the moment Agnes was taken at gunpoint from Panay Avenue to a remote place in Batangas. The victim testified, thus:
Q. What did he do with the P50.00 bill? A. He received it. Q. After receiving the P50.00 bill, what did he do next? A. He gave my license back. Q. After getting back your license, what happened? A. He immediately poked a gun at me. xxx xxx xxx Q. After Venancio Roxas pointed a gun at you, what happened next? A. He switched off the engine and then told me, Miss, kailangan ko lang ito.

Q. After that, what happened? A. I was so terrified, I cried and then pleaded to him to let me go, to take anything but not to harm me. Q. Did he heed your plea? A. No, sir. Q. What happened next? A. After some minutes, he opened the back door of the car and then someone entered, another guy entered the car. xxx xxx xxx Q. After that second guy entered the car, what happened? A. He reclined the seat and he took my arm and pulled me to the back seat. Q. While the second guy who entered the car reclined your seat, and pulled your arm towards the back seat, what was Roxas doing? A. He was sitting at the passenger seat and when I was at the back seat already, he tool the drivers seat. Q. This second guy who boarded the car and pulled you towards the back seat, is he inside the courtroom? A. Yes, sir. Q. Will you please point to him? xxx Court (Witness tapping a person in the first row) Will the person tapped please rise? Do you wish to give your name? A. Yes, your honor. Court What is your name? A. Roberto Santiago Gungon, your honor. xxx xxx xxx State Pros. Agcaoili You said that after you refused to drink the bottle of softdrink being offered by Roxas, Roxas handed the bottle over to Gungon? A. Yes, sir. Q. After Gungon took the bottle, what happened next? A. He forced me to drink it, sabi niya, sige na, makakatulong ito sa iyo. xxx xxx

xxx

xxx

xxx

State Pros. Agcaoili And what was your reaction to that remark of Gungon? A. Of course, I still refused to drink. Q. And when you refused, what happened next? A. He was still holding the bottle, and then he continued to drive and then stopped to a nearby gas station. "Q. what did you do at the gas station if you did anything? "A. He gassed up "Q. After gassing up, what else happened?

"A. During that time, I was trying to escape but I cannot escape since Gungon was holding me and from time to time poking a gun at me.[23]
"Q. Going back to your earlier testimony, Madam Witness, you testified earlier that along the way, Mr. Roxas alighted from the car and bought Sprite and skyflakes, how about you and Mr. Gungon when Mr. Roxas alighted from the car? xxx xxx xxx xxx

"Q. What was Mr. Gungon doing while Mr. Roxas was buying softdrinks and skyflakes? xxx xxx

"A. Gungon and I were still inside the car and he was holding me and from time to time poking a gun at me. xxx xxx xxx

"Q. You also testified earlier that along the way Roxas stopped somewhere at the South Expressway and took a leak, what was Mr. Gungon doing while Mr. Roxas was taking a leak? "A. The same thing when Roxas left the car. "Q. What about when it was Mr. Gungons turn to take a leak, what was Mr. Roxas doing?

"A. Roxas held me and he was holding the door and checking if it was locked and poking a gun at me.[24] The evidence would likewise show, ineluctably, the commission of frustrated murder. Not rebutted was the medical finding that the gunshot wound sustained by the victim would have resulted in the death of the victim had it not been for the proper medical attention given to her.[25] The trial court has, too, properly appreciated the attendance of treachery in the commission of the offense. Treachery exists when the offender employs means, methods, or forms in the execution of the crime which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might take.[26] It bears stressing that the unsuspecting and defenseless victim had sustained the gunshot wound while still trying to get up after relieving herself.

The idea of killing the victim was likewise premeditated; Agnes testified:

State Pros. Agcaoili After this second guy who pulled you to the back seat whom you just identified as accused Roberto Gungon pulled you towards the back seat, what happened next?
"A. I was asked where they are taking me. "Q. What was their reply if any? "A. They said they are taking me to Philcoa. "Q. After telling you that they are taking you to Philcoa, what else happened? "A. Gungon got his beeper and then he read it, then told Roxas, boss, negative Philcoa. "Q. And what was the reaction of Roxas? "A. He just nodded. "Q. And what else happened? "A. After that, Gungon said, Boss, dalhin na natin siya sa dati at doon na natin i-S. "Q. And how did Roxas react to that remark of Gungon?

"A. The same, he just nodded.[27] The perpetrator of the premeditated killing, albeit frustrated was hatched from the moment the accused and his co-conspirator took the victim in Quezon City until she was ultimately executed in Batangas to insure impunity to the perpetrators by eliminating the only witness. Murder is punishable under Article 248 of the Revised Penal Code by reclusion perpetua to death if committed with the attendant circumstances, among other circumstances, of treachery and evident premeditation.[28] When the crime is frustrated,f a penalty lower by one degree or, in this case, prision mayor toreclusion temporal is imposed. The crime of kidnapping and serious illegal detention has been correctly complexed by the trial court with frustrated murder. A complex crime is committed when a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other.[29] In a complex crime, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period. [30] Since the kidnapping and serious illegal detention is the more serious crime, the proper penalty under Article 267 of the Revised Penal Code, as amended by Republic Act No. 7659, should be applied in its maximum period. The Court finds merit, however, in appellants third assigned error.

Appellant would have it that the trial court erred in convicting him of robbery considering that the taking of the victims jewelry and cash were perpetrated while the latter was asleep. The victim herself testified that shortly after the car had proceeded from Sto. Tomas, Batangas, she lost consciousness and regained it only at about 9:30 that evening. She then found herself lying at the back seat minus her personal belongings with a total value of P38,000.00.[31] Article 293 of the Revised Penal Code defines robbery to be one committed by any person who, with intent to gain, shall take any personal property belonging to anoth er, by means of violence against or intimidation of any person, or using force upon anything xxx. Robbery may thus be committed two ways: (a) with violence, or intimidation of persons[32] and (b) by the use of force upon things.[33] To be then liable for robbery with violence against or intimidation of persons, the following elements must concur. 1) that there be personal property belonging to another; 2) that there is unlawful taking of that property; 3) that the taking must be with intent to gain; and 4) that there is violence against or intimidation of any person or use of force upon things. It would appear that the taking of the victims jewelry and cash came only by way of an afterthought on the part of the appellant. The taking was not attended by violence or intimidation upon the person of Agnes. The absence, however, of violence or intimidation did not exculpate appellant from liability for the crime of theft, punishable by Article 308, in relation to Article 309, of the Revised Penal Code, viz:

Art. 308. Who are liable for theft. Theft is committed by any person who, with intent to gain but without violence against, or intimidation of persons nor force upon things, shall take personal property of another without the latters consent. Art. 309. Penalties. Any person guilty of theft shall be punished by: 1. The penalty of prision mayor in its minimum ans medium periods, if the value of the thing stolen is more than 12,000 pesos but does not exceed 22,000 pesos; but if the value of the things stolen exceed the latter amount, the penalty shall be the maximum period of the one prescribed in this paragraph, and one year for each additional ten thousand pesos, but the total of the penalty which may be imposed shall not exceed twenty years.
The Information in Criminal Case No. Q-94-54287 contains sufficient allegations, adequately proven by the prosecution during the trial, to warrant a conviction of appellant for the crime of theft. Section 4, Rule 120, of the 1988 Rules on Criminal Procedure provides on this score; thus:

Section 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information, and that proved or established by the evidence, and the offense as charged is included in or necessarily includes the offense proved, included in that which is charged, or of the offense charged included in that which is proved.
Since the value of the personal property taken from the victim amounted to P38,000.000 the penalty imposable is the maximum period of the penalty prescribed by Article 309 which is the maximum of prision mayor in its minimum and medium periods plus one year for the additional ten thousand pesos in excess of P22,000.00. Applying the Indeterminate Sentence Law, the penalty for this particular offense of theft that may thus be imposed is anywhere from two (2) years, four (4) months and one (1) day of prision correctional minimum period to six (6) years of prision correccional maximum period, as minimum, to anywhere from eight (8) years, eight (8) months and one (1) day to ten (10) years of prision mayor medium period, plus one (1) for the additional P10,000.00 in excess of P22,000.00 value of the property taken, or eleven (11) years of prision mayor maximum period, as maximum. Lastly, appellant contends that he should not have been convicted of violation of Republic Act No. 6539, otherwise known as the Anti-Carnapping Act, because the taking of the subject motor vehicle. Roxas had already acquired effective possession of the subject vehicle. This argument would have been consequential had there been no finding of conspiracy between appellant and Venancio Roxas. In conspiracy, to once again stress it, the act of the other co-conspirator and, therefore it is of no moment that an accused had not taken part in the actual commission of every act constituting the crime,[34] each of the conspirators being held in the same degree of liability as the others. WHEREFORE, the Court sustains the appealed decision of the trial court, dated 15 February 1995, except for appellants conviction for the crime of ROBBERY in Criminal Case No. Q-94-54287 which is hereby MODIFIED to one of THEFT of which offense appellant is found guilty beyond reasonable doubt and sentenced to a prison term of from two (2) years, four (4) months and one (1) day of prision correccional, as minimum to eight (8) years, eight (8) months and one (1) day of prision mayor plus one (1) year for the additional P10,000.00 in excess of P20,000.00 value of the property taken or a total of nine (9) years, eight (8) months and one (1) day, as maximum. The decision of the court a quo with respect to Criminal Case No. Q-94-54285 and Criminal Case No. Q-94-54286 is AFFIRMED. In Criminal Case No. Q-94-54285, four members of the Court, although maintaining their adherence to the separate opinions expressed in People vs. Echegaray (G.R. No. 117472, 07 February 1997) that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional nevertheless, bow to the ruling of the Court, by a majority vote that the law is unconstitutional and that the death penalty should be according be imposed. In accordance with Section 25 of Republic Act No, 7659, amending Article 83 of the Revised Penal Code, upon finality of this decision, let the records of this case be

forthwith forwarded to the Office of the President for possible exercise of the pardoning power. SO ORDERED. Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Martinez, Quisumbing and Purisima, JJ.,concur.
Astorga vs People

(1) ASTORGA vs. PEOPLE Facts: Private offended parties Elpidio Simon, Moises de la Cruz, WenefredoManiscan, Renato Militante,CrisantoPelias, SPO3 Andres B. Cinco, Kr. and SPO1 RufoCapoquian, members of DENR RegionalOperations Group, were sent to Western Samar to conduct possible illegal logging activities.Upon investi gation of the group, Mayor Benito Astorga was found to be the owner of two (2) boats. A heated altercation ensued and Mayor Astorga called for reinforcements. Ten armed menarrived in the scene. The offended parties were then brought to Mayor Astogas house wherethey had dinner and drinks and left at 2:30am. SPO1 Capoquian further admitted that it was raining during the time of their detention.Mayor Astorga was convicted of arbitrary detention by the Sandiganbayan. Issue: Whether Mayor Astorga is guilty of arbitrary detention. Held: No. The elements of arbitrary detention are as follows:1. That the offender is a public officer or employee.2. That he detains a person.3. That the detention is without legal ground.The determinative factor in arbitrary detention is fear. The Court found no proof that Astorgainstilled fear in the minds of the offended parties. There was also no actual restraint imposed onthe offended parties. The events that transpired created reasonable doubt and are capable of other interpretations. Mayor Astorga could have extended his hospitality and served dinner anddrinks to the offended parties. He could have advised them to stay in the island inasmuch as seatravel was rendered unsafe by the heavy rains. Astorga even ate and served alcoholic drinksduring dinner. The guilt of the accused has not been proven with moral certainty. Astorga was acquitted.
FIRST DIVISION G.R. No. 154130. October 1, 2003] BENITO ASTORGA,, Petitioner, v. PEOPLE OF THE PHILIPPINES, respondent.

DECISION YNARES-SANTIAGO, J.: This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001,[1 as well as its Resolutions dated September 28, 2001 and July 10, 2002. On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito Astorga, Mayor of Daram, Samar, as well as a number of his men for Arbitrary Detention: That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality of Daram, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being the Municipal Mayor of Daram, Samar, in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with unidentified persons, who are herein referred to under fictitious names JOHN DOES, who were armed with firearms of different calibers, with deliberate intent, did then and there willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato Militante and Crisanto Pelias, DENR Employees, at the Municipality of Daram, by not allowing them to leave the place, without any legal and valid grounds thereby restraining and depriving them of their personal liberty for nine (9) hours, but without exceeding three (3) days. CONTRARY TO LAW.[2 On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment and Natural Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western Samar to conduct intelligence gathering and forest protection operations in line with the governments campaign against illegal logging. The team was composed of Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato Militante, and Tree Marker Crisanto Pelias, with Elpidio E. Simon, Chief of the Forest Protection and Law Enforcement Section, as team leader. The team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian.[3 The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-like boats being constructed. After consulting with the local barangay officials, the team learned that the boats belonged to a certain Michael Figueroa. However, since Figueroa was not around at the time, the team left Brgy. Bagacay.[4 En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in the vicinity of Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and investigate. Thus, Maniscan and Militante disembarked from the DENRs service pump boat and proceeded to the site of the boat construction. There, they met Mayor Astorga. After conversing with the mayor, Militante returned to their boat for the purpose of fetching Simon, at the request of Mayor Astorga.[5 When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor Astorga to try and explain the purpose of their mission, Simon was suddenly slapped hard twice on the shoulder by Mayor Astorga, who exclaimed, Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka maaram nga natupa ako? Natupa baya ako.

Diri kamo makauli yana kay puwede kame e charge ha misencounter. (I can make you swim back to Tacloban. Dont you know that I can box? I can box. Dont you know that I can declare this a misencounter?)[6 Mayor Astorga then ordered someone to fetch reinforcements, and forty-five (45) minutes later, or between 5:00-6:00 p.m., a bancaarrived bearing ten (10) men, some of them dressed in fatigue uniforms. The men were armed with M-16 and M14 rifles, and they promptly surrounded the team, guns pointed at the team members.7 At this, Simon tried to explain to Astorga the purpose of his teams mission.8 He then took out his handheld ICOM radio, saying that he was going to contact his people at the DENR in Catbalogan to inform them of the teams whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simons radio, saying, Maupay nga waray kamo radio bis diri somabut an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig . (Its better if you have no radio so that your office would not know your whereabouts and so that you cannot ask for help).9 Mayor Astorga again slapped the right shoulder of Simon, adding, Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay diri kamo puwede ha akon. (If you are tough guys in Leyte, do not bring it to Samar because I will not tolerate it here.)10 Simon then asked Mayor Astorga to allow the team to go home, at which Mayor Astorga retorted that they would not be allowed to go home and that they would instead be brought to Daram.11 Mayor Astorga then addressed the team, saying, Kon magdakop man la kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay puwede ko liwat ipadakop an akon. (If you really want to confiscate anything, you start with the big-time. If you confiscate the boats of Figueroa at Brgy. Bagacay, I will surrender mine.)[12 Simon then tried to reiterate his request for permission to leave, which just succeeded in irking Mayor Astorga, who angrily said, Diri kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita mag uro istorya. (You cannot go home now because I will bring you to Daram. We will have many things to discuss there.)13 The team was brought to a house where they were told that they would be served dinner. The team had dinner with Mayor Astorga and several others at a long table, and the meal lasted between 7:00-8:00 p.m.[14 After dinner, Militante, Maniscan and SPO1 Capoquian were allowed to go down from the house, but not to leave the barangay.15On the other hand, SPO3 Cinco and the rest just sat in the house until 2:00 a.m. when the team was finally allowed to leave.16 Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men, which led to the filing of the above-quoted Information. Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the offenses charged.[17 At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as their Joint Affidavit.[18 However, the presentation of Simons testimony was not completed, and none of his fellow team members came forward to testify. Instead, the members of the team sent by the DENR RSOG executed a Joint Affidavit of Desistance.[19 On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows: WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y BOCATCATguilty of Arbitrary Detention, and in the absence of any mitigating or aggravating circumstances, applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months of arresto mayor as minimum to one (1) year and eight (8) months of prision correctional as maximum.

SO ORDERED.[20 The accused filed a Motion for Reconsideration dated July 11, 2001 21 which was denied by the Sandiganabayan in a Resolution dated September 28, 2001.22 A Second Motion for Reconsideration dated October 24, 2001 23 was also filed, and this was similarly denied in a Resolution dated July 10, 2002.24 Hence, the present petition, wherein the petitioner assigns a sole error for review: 5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and penalized under Article 124 of the Revised Penal Code, based on mere speculations, surmises and conjectures and, worse, notwithstanding the Affidavit of Desistance executed by the five (5) complaining witnesses wherein the latter categorically declared petitioners innocence of the crime charged. 25 Petitioner contends that the prosecution failed to establish the required quantum of evidence to prove the guilt of the accused,26 especially in light of the fact that the private complainants executed a Joint Affidavit of Desistance.[27Petitioner asserts that nowhere in the records of the case is there any competent evidence that could sufficiently establish the fact that restraint was employed upon the persons of the team members.28 Furthermore, he claims that the mere presence of armed men at the scene does not qualify as competent evidence to prove that fear was in fact instilled in the minds of the team members, to the extent that they would feel compelled to stay in Brgy. Lucob-Lucob.[29 Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a person.30The elements of the crime are: 1. That the offender is a public officer or employee. 2. That he detains a person. 3. That the detention is without legal grounds.31 That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is undeniably present. Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal purpose. On the contrary, he admitted that his acts were motivated by his instinct for self-preservation and the feeling that he was being singled out.[32 The detention was thus without legal grounds, thereby satisfying the third element enumerated above. What remains is the determination of whether or not the team was actually detained. In the case of People v. Acosta,33 which involved the illegal detention of a child, we found the accused-appellant therein guilty of kidnapping despite the lack of evidence to show that any physical restraint was employed upon the victim. However, because the victim was a boy of tender age and he was warned not to leave until his godmother, the accusedappellant, had returned, he was practically a captive in the sense that he could not leave because of his fear to violate such instruction.34

In the case of People v. Cortez,35 we held that, in establishing the intent to deprive the victim of his liberty, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. At the time of her rescue, the offended party in said case was found outside talking to the owner of the house where she had been taken. She explained that she did not attempt to leave the premises for fear that the kidnappers would make good their threats to kill her should she do so. We ruled therein that her fear was not baseless as the kidnappers knew where she resided and they had earlier announced that their intention in looking for her cousin was to kill him on sight. Thus, we concluded that fear has been known to render people immobile and that appeals to the fears of an individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence.36 The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victims liberty need not involve any physical restraint upon the victims person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will. In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and the complainants were not allowed by petitioner to go home.37 This refusal was quickly followed by the call for and arrival of almost a dozen reinforcements, all armed with military-issue rifles, who proceeded to encircle the team, weapons pointed at the complainants and the witnesses.38 Given such circumstances, we give credence to SPO1 Capoquians statement that it was not safe to refuse Mayor Astorgas orders.39 It was not just the presence of the armed men, but also the evident effect these gunmen had on the actions of the team which proves that fear was indeed instilled in the minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the complainants and witnesses against their will is thus clear. Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that the principles governing the use of such instruments in the adjudication of other crimes can be applied here. Thus, in People v. Ballabare, it was held that an affidavit of desistance is merely an additional ground to buttress the defenses of the accused, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge. Here, there are no such circumstances.40 Indeed, the belated claims made in the Joint Affidavit of Desistance, such as the allegations that the incident was the result of a misunderstanding and that the team acceded to Mayor Astorgas orders out of respect, are belied by petitioners own admissions to the contrary.[41 The Joint Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the material points alleged in the information and proven at the trial, but a mere expression of the lack of interest of private complainants to pursue the case. This conclusion is supported by one of its latter paragraphs, which reads: 11. That this affidavit was executed by us if only to prove our sincerity and improving DENR relations with the local Chiefs Executive and other official of Daram, Islands so that DENR programs and project can be effectively implemented through the support of the local officials for the betterment of the residence living conditions who are facing difficulties and are much dependent on government support.42

Petitioner also assails the weight given by the trial court to the evidence, pointing out that the Sandiganbayans reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the private complainants in the case.[43 He also makes much of the fact that prosecution witness SPO1 Capoquian was allegedly not exactly privy to, and knowledgeable of, what exactly transpired between herein accused and the DENR team leader Mr. Elpidio E. Simon, from their alleged confrontation, until they left Barangay Lucob-Lucob in the early morning of 2 September 1997.[44 It is a time-honored doctrine that the trial courts factual findings are conclusive and binding upon appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted. 45 Nothing in the case at bar prompts us to deviate from this doctrine. Indeed, the fact that SPO1 Capoquian is not one of the private complainants is completely irrelevant. Neither penal law nor the rules of evidence requires damning testimony to be exclusively supplied by the private complainants in cases of Arbitrary Detention. Furthermore, Mayor Astorgas claim that SPO1 Capoquian was not exactly privy to what transpired between Simon and himself is belied by the evidence. SPO1 Capoquian testified that he accompanied Simon when the latter went to talk to petitioner.46 He heard all of Mayor Astorgas threatening remarks.47 He was with Simon when they were encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles.[48 In sum, SPO1 Capoquian witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor Astorga. Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-Lucob or whether they had simply decided to while away the time and take advantage of the purported hospitality of the accused.[49 On the contrary, SPO3 Cinco clearly and categorically denied that they were simply whiling away the time between their dinner with Mayor Astorga and their departure early the following morning.[50 SPO1 Capoquian gave similar testimony, saying that they did not use the time between their dinner with Mayor Astorga and their departure early the following morning to enjoy the place and that, given a choice, they would have gone home.51 Petitioner argues that he was denied the cold neutrality of an impartial judge, because the ponente of the assailed decision acted both as magistrate and advocate when he propounded very extensive clarificatory questions on the witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter during a trial. It can propound clarificatory questions to witnesses in order to ferret out the truth. The impartiality of the court cannot be assailed on the ground that clarificatory questions were asked during the trial.[52 Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable doubt of Arbitrary Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention has not exceeded three days, the penalty shall be arresto mayor in its maximum period to prision correccional in its minimum period, which has a range of four (4) months and one (1) day to two (2) years and four (4) months. Applying the Indeterminate Sentence Law, petitioner is entitled to a minimum term to be taken from the penalty next lower in degree, or arresto mayor in its minimum and medium periods, which has a range of one (1) month and one (1) day to four (4) months. Hence, the Sandiganbayan was correct in imposing the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum.

Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion in Lino v. Fugoso, wherein he decried the impunity enjoyed by public officials in committing arbitrary or illegal detention, and called for the intensification of efforts towards bringing them to justice: The provisions of law punishing arbitrary or illegal detention committed by government officers form part of our statute books even before the advent of American sovereignty in our country. Those provisions were already in effect during the Spanish regime; they remained in effect under American rule; continued in effect under the Commonwealth. Even under the Japanese regime they were not repealed. The same provisions continue in the statute books of the free and sovereign Republic of the Philippines. This notwithstanding, and the complaints often heard of violations of said provisions, it is very seldom that prosecutions under them have been instituted due to the fact that the erring individuals happened to belong to the same government to which the prosecuting officers belong. It is high time that every one must do his duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging of the shoulders the complaints of the victims of arbitrary or illegal detention. Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The responsible officials should be prosecuted, without prejudice to the detainees right to the indemnity to which they may be entitled for the unjustified violation of their fundamental rights.[53 WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is AFFIRMED in toto. Costs de oficio. SO ORDERED. Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur. Azcuna, J., on leave.

Ilagan vs Enrile

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 70748 October 21, 1985

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal Assistance Group [FLAG] and Movement of Attorneys For Brotherhood, Integrity and Nationalism, Inc., [MABINI], petitioners, vs. HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for Region XI, Camp Catitipan, Davao City, respondents. Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S. Factoran, Francisco I. Chavez , Lorenzo M. Taada, Wigberto Taada and Martiniano Vivo for petitioners. The Solicitor General for respondents.

MELENCIO-HERRERA, J.: This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group (FLAG); and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr. The facts follow: On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and was detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander. This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders. and that there appears to be a military campaign to harass lawyers involved in national security cases. On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985. In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the President on January 25, 1985; that the Writ of habeas

corpus is suspended as to them by virtue of Proclamation No. 2045-A; and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, 1 Courts lack the authority to inquire into the cause and validity of detention of persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in Davao City on the basis of seized subversive documents, implying that the detained attorneys played active roles in organizing mass actions of the Communist Party of the Philippines and the National Democratic Front. Respondents then prayed for the denial of the petition. During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and detention. Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due to lack of evidence linking the detained attorneys with the alleged subversive activities, the Court, on the same day resolved to order the temporary release of the detained attorneys on the recognizance of the principal counsel of petitioner's, namely, retired Chief Justice Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give petitioners ten days within which to file a traverse to the Return of the Writ and the respondents ten days to file a Reply thereto. The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not yet been released and praying that they be released to the custody of the principal counsel of petioners at the Supreme Court. On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of Release reiterating that the suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and attached thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys "were arrested not on the basis of their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for their leadership in the CPP" ... "even to the extent of attending CPP and NPA rites and using their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives;" and that the detained attorneys were involved in the Welgang Bayan in Davao City, a mass action "with demands for the armed overthrow of the government." Sworn statements of several persons also implicated the detained attorneys in alleged subversive activities. Respondents added that, while there is a Court Order directing release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered released by the President or by his duly authorized representative, and that the PDA, when issued, constitutes authority to preventively detain them for a period not exceeding one year. On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed on May 27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as Criminal Case No. 12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be dismissed for having been rendered moot and academic. On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending that since the detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to due process; consequently, the Information for Rebellion filed against them is void.

Respondents, on the other hand, filed on the same day a Comment to petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the petition on the ground of mootness by virtue of the proceedings before the Regional Trial Court of Davao. On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the "Welgang Bayans" were in legitimate exercise of the constitutional right of expression and assembly to petition the government for redress of grievances; that the detained attorneys' participation was limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045 is unconstitutional because there exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in the Constitution; that the evidence presented by respondents against the detained attorneys are of a doubtful and flimsy nature; and that the PDA is unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable searches and seizures. On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised as the case affects not only the detained attorneys but the entire legal profession and the administration of justice as well. Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against petitioners as an incident to the suspension of the privilege of the Writ of habeas corpus: secondly, the ruling in GarciaPadilla vs. Ponce Enrile, et al.; 2 and thirdly, its prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for Rebellion against the detained attorneys before the Regional Trial Court of Davao City . As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest against them. 3 The function of the special proceeding of habeas corpus is to inquire into the legality of one's detention. Now that the detained attorneys' incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had served its purpose. 4 SEC. 4. When writ not allowed or discharge authorized.-If it appears the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment, or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order. Nor shall anything in this rule be held to authorize to discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (Rule 102)

If the detained attorneys question their detention because of improper arrest, or that no preliminary investigati n has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and /or the Information on grounds provided by the Rules or to ask for an investigation / reinvestigation of the case. 5 Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed against the accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading: SEC. 14. When person lawfully imprisoned recommitted and when let to bail.If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. . . . But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed against the detained attorneys is void and the Court below could not have acquired jurisdiction over them, and consequently, they are entitled to release. On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys were lawfully arrested without a warrant. Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule 112. 7 The Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the exception. Thus, the Verification reads: VERIFICATION I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985 Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and other documents attached to the records, I found sufficient ground to hold respondents for trial. (SGD.) EMMANUEL E. GALICIA City Fiscal Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides: SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without preliminary investigation having been first

conducted on the basis of the affidavit of the offended party or arrested officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful. SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs [al and [b] hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (Rule 113) Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances enumerated is a question of fact, which will need the presentation of evidence and is more properly within the province of the trial Court.

The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. 8 As stressed in People vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did not impair the validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First Instance". 9 The right to a preliminary investigation, being waivable, does not argue against the validity of the proceedings, the most that could have been done being to remand the case in order that such investigation could be conducted. 10
... The proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an 11 appellate Court.

The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the accused, is not on all fours with the case at bar as, in that case, the accused were charged only with Illegal Possession of Subversive documents under Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court had granted bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail. WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners are now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said Court. SO ORDERED. Makasiar, C.J., Plana, Escolin Relova, Gutierrez, Jr., De la Fuente Cuevas and Alampay, JJ., concur. Aquino, J., concur in the result

Separate Opinions

I wish to express my views on other aspects of this case with which the majority does not concur.

It is to be noted that in the Warrant of Arrest issued by the Executive Judge of the Regional Trial Court of Davao City "no bail" has been indicated. Neither was bail recommended by the City Fiscal. However, pursuant to Presidential Decree No. 1834, even as amended by Presidential Decree No. 1974 (May 2, 1985), the crime of Rebellion is still punishable by "reclusion perpetua to death." Presidential Decree No. 1974 did not reduce the penalty for Rebellion under Article 135 of the Revised Penal Code, as amended by Presidential Decree No. 1834, but merely "tempered" the penalties for "conspiracy or proposal or inciting to commit such crimes," limiting the amended provisions to Articles 136, 138, 141, 142, 142-B, 143, 144, 146, and 147, but not to Article 135 of the Revised Penal Code. Considering, therefore, that the detained attorneys are not entitled to bail as a matter of right before the prosecution is heard on its evidence, and observing fealty to the Constitutional mandate that "all persons, except those charged with capital offenses, when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties" (Section 18, Article IV, 1973 Constitution), the Regional Trial Court of Davao City, Branch X, should be directed in Criminal Case No. 12,349, to determine whether the evidence of guilt against the detained attorneys is strong, and considering the gravity of the offense charged, it should likewise be required to hear the case to completion with deliberate speed so that their guilt or innocence may be determined without delay. Furthermore, pending resolution by this Court of the crucial issues raised in GarciaPadilla and in Integrated Bar of the Philippines, et al vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66610) consolidated with National Bar Association of the Philippines, et all vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66706), it is my view that individuals against whom PDA's have been issued should be furnished with the original, or the duplicate original, or a certified true copy issued by the official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No. 1877-A, the PDA's should also be enforced within 24 hours in the Metro Manila area or within 48 hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed "any appreciable danger to national security and public order. " The paramount consideration should be that the Constitutional "right of the people to be secure in their persons ... against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated" (Section 3, Article IV, 1973 Constitution). Until the issue of the validity of the PDA is finally resolved, PDA's applied for on the basis of militancy alone in national security cases, of insufficient surveillance, or unsupported deductions and inferences, contravene the Constitutional mandate that "no warrant of arrest shall issue except upon probable cause to be determined by the Judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce" (ibid.). Adherence to Constitutional mandates could ease the current discontent and growing insurgency gripping the nation today. The objective should be to fight for the hearts and minds of the people by observing the rule of law.

Lastly I venture to invite attention, particularized for this case, that the Constitution provides for the vesting of judicial power not only in this Court but also in inferior Courts established by law. While this Court can reverse and modify, on appeal or certiorari, actuations of inferior Courts, the latter, as wielders of judicial power, can not only invoke, but also be entitled to, "procedural due process". Without a hearing, howsoever formal, the involved Regional Trial Court branch in Davao City should not be deprived of jurisdiction, substantial or even initial, over persons it has ordered, or confirmed as, arrested. TEEHANKEE, J., dissenting More than four (4) agonizing months * after this Court issued its near-unanimous Resolution 1 of May 23, 1985, after hearing the parties in oral argument in the morning, ordering the immediate release of the three petitioners-detainees, Attys. Laurente C. Ilagan, Antonio B. Arellano and Marcos D. Risonar, Jr., on the recognizance of their principal counsel, retired Chief Justice Roberto Concepcion, Chairman, Integrated Bar of the Philippines national legal aid committee, and retired Justice Jose B. L. Reyes, President Emeritus of the Integrated Bar of the Philippines, as well as the president and officers of their own IBP Davao chapter, which release it had expressly ordered to be "immediately executory", this Court has now refused to enforce its own release order. Repeated motions for enforcement of this Court's "immediately executory" order of release as against respondents' "brazen disrespect and contemptous disregard" 2 thereof were filed in vain. It has instead dismissed the petition for habeas corpus for having become "moot and academic, " because of the arbitrary filing of precipitate, vindictive and oppressive charges against them for the capital crime of rebellion without hearing or preliminary investigation and in gross violation of their constitutional right and rudimentary requirements of due process and fair play. I. Antecedent Facts.The three lawyers, Attys. Ilagan, Arellano and Risonar, Jr., FLAG (Free Legal Assistance Group) human rights lawyers of Davao City, were illegally arrested and brought to the military stockade at Camp Catitipan, Davao City one after the other on May 10, 11 and 13, 1985, upon mission orders issued by the prime mover and initiator of the operations, respondent General Dionisio S. Tan-Guate, Jr. (hereinafter referred to as respondent general). The mission orders (which are military orders for carrying out a specific mission or military operations) are not warrants of arrest, much less Preventive Detention Actions (PDA's). The orders did not state what were the offenses allegedly committed, although indicating that they were being issued pursuant to a PDA, which was never shown nor produced by respondent general until a xerox copy thereof dated as early as January 25, 1985 was submitted with the respondents' return to the writ. No copy thereof was given the petitioners nor were they given any reason for which the three lawyers were taken into military custody. The first lawyer, Atty. Ilagan, was picked up at 10:45 a.m. on May 10th while taking a snack with some friends at a place in front of his office at C.M. Recto St. His military arrestors denied his request to be allowed to go to his office "a few meters away" so he could give instructions to his associates about a case scheduled for hearing that afternoon. 3 The second lawyer, Atty, Arellano, a law professor at the Ateneo de Davao law school, was one of fifteen IBP Davao Chapter lawyers who insisted on visiting Atty. Ilagan at the military camp on May 11th despite the military custodians' initial refusals that no visitors could be

allowed "unless first cleared by R-2 (intelligence) or Gen. Tan-Guates aide." After the visit, he was told that he was under arrest under the mission order which was merely shown to him and he was no longer all owed to leave the camp. As he told the Court: "I just (went) to visit my colleague, a member of the IBP, to render legal assistance as I'm supposed to do as an officer of the Court. I came to visit, I came to render legal assistance. I was arrested and detained." 4 On May 13th, the third lawyer, Atty. Risonar, Jr.. having received word from the military that he was wanted, presented himself at Camp Catitipan. He was not shown even the mission order, much less a PDA or warrant of arrest. He was so shaken up by the traumatic experience of being himself wanted and arrested by the military (not having been given even a traffic violation ticket in his whole life) instead of his accustomed role of helping hapless persons who have come across their path and assisting as a member of the Human Rights Committee "not only political detainees, but workers, students, teachers and urban community" that he almost broke down at the hearing and had to be asked to take firm hold of himself. 5 After the filing of the petition at bar and the issuance of the writ of habeas corpus to produce in court the persons of the three lawyers at the scheduled May 23rd hearing, they were transferred at 10 p.m. of the night of May 20th to the Metro-Discom stockade in Davao City and herded with a fourth person in a cramped cell, "a very small cell good only for 2 people. " The next day, they were picked up by "2 PC jeeps loaded with fully armed men" and in the words of Atty. Arellano, "in the presence of the detainees in the stockade, ... many of whom are my clients and in the presence of their visitors, ... and in the presence of our wives, ... we were handcuffed like ordinary criminals, and we were transported from that stockade up to the airport and from the airport we were brought to Manila and then we were brought to Camp Bicutan." 6 They have been since detained there, their lives shattered, uprooted from their homes and families, and deprived of their livelihood and their families left to fend for themselves. The Integrated Bar of the Philippines and other petitioners complain in their verified petition that "(B)eyond the harassment and the illegal arrest and detention of these three advocates, are grave implications for the craft. Their arrest appears to be a prelude to a campaign to ultimately deprive the accused in national security cases of the services of counsel in violation of the Constitution," citing "a readily discernible pattern from events in the recent past" including the killings of FLAG Atty. Zorro C. Aguilar and newsman Jacobo Amatong who gave an antemortem statement "that it was the military that shot them" in Dipolog City on September 23, 1984 and the killing of Atty. Romraflo R. Taojo in his own home in Tagum, Davao del Norte on April 2, 1985, who had been allegedly warned by the military about the nature of the cases he was handling. The petition further cited the case of petitioner MABINI trustee and co-founder Atty. Jojo Binay who was successful in having several criminal cases against his client Dr. Nemesio Prudente dropped, but in April this year "found himself a co-respondent with his client Dr. Prudente in a new subversion charge filed by the military with the provincial fiscal of Rizal. " Also cited were the cases of Attys. Romeo Astudillo and Alberto Benesa both former IBP Abra chapter presidents and Abra FLAG chairman and member, respectively, who in the same month of April this year "were arrested by the military, charged with subversion, and presently confined at the Constabulary stockade in Bangued, Abra, Since 1979, they were the only human rights lawyers in Bangued, Abra. Since their arrest, there are no lawyers anymore handling such

cases." 7 Between the two of them, they reportedly handled a total of about 120 subversion cases and "not one of their clients was even convicted due to 'lack of evidence.' " 8 The petition quoted respondent general's press statement issued on May 10th that ... the arrest of Ilagan, 'who had lately been engaged in human rights lawyering for suspected persons detained for subversion, rebellion and other charges' was 'long overdue' (Business Day, May 13, 1985, p. 11)" 9 and the exertion of pressure upon other Davao human rights lawyers in this wise: The tension mounted when another lawyer Silvestre Bello III, BAYAN national organizing committee member, got word from Jesus Dureza President of the Integrated Bar of the Philippines, Davao del Sur chapter, that Estares was 'inviting' Bello to Camp Catitipan. Bello, in an earlier interview, said they were assured by Estares that in case they would be slapped with a PDA, they would not be picked up like what happened to Ilagan but instead just 'be invited' to Camp Catitipan as in Arellano case. Estares, on the other hard, told Business Day they were just 'inviting' Bello to 'visit his friends,' PC-INP regional commander, Dionisio Tan- Gatue also told newsmen in a phone interview that he was just inviting Bello to visit him. TanGatue however, declined to comment on whether or not there will be more arrests in the next few days. 'Just wait and see,' he said. (Business Day, May 13, 1985) "The aforesaid report has been confirmed by the IBP Davao Chapter." 10 The petition, noting that "(T)hese trends are ominous for members of the Bar especially those who are engaged inpro bono publico work who have incurred the ire of the military," 11 invoked the writ of habeas corpus as the great writ of liberty on behalf of the three lawyers. IBP President Emeritus J.B.L. Reyes made this eloquent plea against this Damocles' sword wielded by the military in that its value is not that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the defense of anybody":
That is why, if Your Honors please, we have here all the representatives of the Bar organizations because they are all threatened under this method that is being adopted by the military, that anybody who thus ran against their Ideas of what a citizen should do, becomes ipso facto suspect and ipso facto rebel or a subversive. And that is the reason why we've come to this Court, because with all this publicity. Even if only 3 or 5 lawyers are arrested all the others will be afraid. If Your Honors will recall that we are arguing the constitutionality of this PDA, we happened to quote from the United States Supreme Court, that the value of the Sword of Damocles is not that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the defense of anybody 12 How do we know how many more lawyers will be in the future arrested.

Or as then Associate (now Chief) Justice Makasiar in 1980 stressed before the Philconsa against the proposal then to return the administrative supervision of inferior courts from the Supreme Court to the Ministry of Justice: "The warning has been issued that a tyrant, who

wants complete and absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy must be averted." 12-a Respondents' return made the startling charge that the three lawyers (all practitioners of long good standing since 1971, 1977 and 1976, family men and without any derogatory record) "have been arrested and detained because of evidence that they are members of the Communist Party of the Philippines or its partner, the National Democratic Front, and have been active in organizing mass actions intended to further the communist cause," and "(I)n truth, the PDA against the three lawyers was issued as early as January 25, 1985, shortly after the series ofwelgas conducted late in 1984. But, with the President's knowledge and concurrence, the military in Region 11 tried to withhold its implementation precisely in the hope that the need for such action would pass, forestalling a possible misinterpretation of the government's motive in making the arrest. The situation in Southern Mindanao has, however, deteriorated compelling the government to act swiftly, arrest the communist leaders behind thewelga and stem the tide of mass disturbance sweeping the area." 13 Ironically, while the state attorneys specifically pleaded that there is evidence that the three lawyers are communists, yet they invoke the Garcia Padilla ruling that "the Court may not inquire into it" 14 and that "because of the suspension of the writ of habeas corpus, the Courts have no authority to look into this evidence" 15 which led then Chief Justice Fernando to ask in exasperation: CHIEF JUSTICE
Q But what is the connection between them? You can always, your pleading is quite extensive, but until now according to you there is evidence but you are not at liberty to reveal that evidence. What good will it do to the Court then? What is their [the lawyers] connection with the acts that are rebellious in character or subversive? That perhaps will give the possibility [for] their 16 continued detention?

Still, at the hearing of May 23rd, it was clearly stressed that notwithstanding that the PDA had been secured since January 25, 1985 by respondent general, supposedly "on the basis of evidence and verified reports," when questioned why no information had been filed against them "considering that as early as January 25, 1985 there had been [allegedly] evidence that they had committed subversion, " respondents assured the Court that the detained lawyers would be "entitled to a hearing ... when the time comes that we file charges [which] will be decided by the prosecuting officer of the government" (upon interpellation of Mr. Justice Relova and reply of Assistant Solicitor General Eduardo G. Montenegro). 17 Respondents' counsel had at the hearing claimed that "these three lawyers companeros of mine are active members of the Communist Party of the Philippines, [as] witnesses we have captured NPA's." He said that these statements given by former NPA's were shown him by military officers, but when questioned as to whether these states were "newly prepared also or long existing, " he was specifically warned against swallowing hook, line and sinker" the assertions of such professional witnessesand of the imperative necessity of conducting an independent investigation, thus: JUSTICE CUEVAS: Q What (did) your evidence consist of ? ASST. SOLGEN:

A Statements given by former members of the New People Army in Davao Your Honor, there are NPA's who surrendered and then subsequently . . . JUSTICE CUEVAS: Q And these evidences were in your possession long prior to the arrest and detention of these 3 lawyers? ASST. SOLGEN: A In our possession, Your Honor no, sir, because I saw them only when we were preparing the return, Your Honor. JUSTICE CUEVAS: Q From whom did they come from, if you know. ASST. SOLGEN: A I was shown that by these Military Officers. JUSTICE CUEVAS: Q Newly prepared also or long existing? ASST. SOLGEN: A Your Honor please, I . . . . JUSTICE CUEVAS: Q You answer positively because I'll ask them, when they were turned over to you were they newly prepared also? When were they prepared? ASST. SOLGEN: A I do not remember the date now but I was reading it. Anyway, Your Honor, the reason why we did not attach this to our return is this, that most of those . . . . JUSTICE CUEVAS: Q That is very very material, simply because there is rebellion in the count I do not think it warrants the picking up of anybody?

ASST. SOLGEN: A Yes, Your honor. JUSTICE CUEVAS: Q That is following up under your theory? ASST. SOLGEN. A Yes, Your Honor, because the surrendered NPA's who gave those statements, at least 3 of them, have not yet been surfaced by the Government. Their Identity are still not to be divulged because the Military is not through yet in its investigation with respect to these people. So they are not to be mentioned. JUSTICE CUEVAS: Q My theory because I had been a Fiscal also, Mr. Assistant Solicitor General as you know, there are people who are, who had the appetite of giving any kind of affidavit. In fact, I had prosecuted an accused who is even willing to testify that he witnessed the shooting of Rizal in Luneta? ASST. SOLGEN: A That may be true, Your Honor. JUSTICE CUEVAS: Q You should not swallow 'hook, line, and sinker,' that is our apprehension in particular? ASST. SOLGEN: A Yes, Your Honor. May I continue, Your Honor. Now, Atty. Ilagan, in particular JUSTICE TEEHANKEE: Q This is an appropriate time I believe, what Justice Cuevas has mentioned was that, in other words, you brought these affidavits? ASST. SOLGEN: A Yes, Your Honor.

JUSTICE TEEHANKEE: Q But you have to check them out? ASST. SOLGEN: A Yes, Your Honor. JUSTICE TEEHANKEE: Q Check the background of these people and check out their assertions as against an independent investigation. As if they say on such and such a date Attorney Ilagan was in the mountains; you have to check that out, you can't just swallow on its own. There areso many of these professional witnesses? ASST. SOLGEN: A That may be true, Your Honor, there are professional witnesses, Your Honor. JUSTICE TEEHANKEE: Q There are, you know that and we all know that. ASST. SOLGEN: A Yes there are. Now, may I continue, Your Honor. CHIEF JUSTICE FERNANDO:
A Yes, but please you must go directly.
18

CHIEF JUSTICE FERNANDO: Q We've heard that before but again [what is] the connection of these people? SOLICITOR ABAD: A Well, the position of the Military is that .... CHIEF JUSTICE FERNANDO: Q They are human rights lawyers, they have been defending several persons accused of crimes of . . . . and

they had been doing as members of the Bar. Now they are picked up and apprehended, at least justify that. SOLICITOR ABAD: A Well, I appreciate that, Your Honor please, anyone belonging to the middle forces who campaign in the open to organize the populace for support to the revolution must really have some front, because when it comes to a revolution . CHIEF JUSTICE FERNANDO: Q But again you say they are the front of these people, where is the evidence to substantiate this conclusion? They are all naked assertions thus far? JUSTICE TEEHANKEE: Q Mr. Counsel, your theory seems that anybody who joins in a protest or a demonstration against grievances and abuses as perceived by them is a . . . . joining this middle force is a communist already? SOLICITOR ABAD:
A That is certainly not our theory, Your Honor, that is not the theory of the Government.
19

After the hearing, and as already indicated, the Court ordered the immediate release of the three lawyers-detainees on recognizance of their principal counsel per its Resolution of May 23rd, which it expressly ordered to be "immediately executory. " But the camp commander at Camp Bagong Diwa did not honor the Court's release order, saying that "it had to be verified from higher authorities." So, petitioners filed their manifestation and motionon May 24th, reporting the non-release and praying that the immediate release of the three lawyers on recognizance of their principal counsel be effected in the premises of the Supreme Court, as had been done in previous past cases. On the next day thereafter, May 25th, respondents filed an urgent motion for reconsideration, invoking anew the Garcia-Padilla ruling 20 that the courts could not entertain petitions for habeas corpus of persons detained under Presidential Commitment Orders (now supplanted by PDA's), Without awaiting this Court's action on their aforesaid motion for reconsideration, respondents, particularly respondent general, somehow got th City Fiscal of Davao City to precipitately file on May 27, 1985, without any preliminary investigation, an information against the three petitioners' lawyers for the capital crime of rebellion with the Regional Trial Court of Davao, Branch X. 21 The said trial court grossly disregarding the deference that all inferior courts should accord this Court as the highest court of the land (since the military's equally gross disregard of this Court's May 23rd order for the release of

petitioners-lawyers was a matter of public notice, having been prominently reported in all national and local newspapers) just as precipitately issued a warrant of arrest with no bail against said petitioners-lawyers. Respondents then filed on May 28th their Urgent Manifestation/Motion, annexing copies of the information and warrant of arrest, praying for the dismissal of the habeas corpus petition at bar on the ground that it has become moot and academic. In their required comment on the state's action, petitioners' lawyers stated that the fiscal misinvoked section 7, Rule 112 which allows the filing of an information without preliminary investigation "when the person is lawfully arrested without a warrant," i.e. in flagrante delicto (which is not the case here). They asserted petitioners' constitutional right to due process and the right to a preliminary investigation as granted by statute and expressly assured to them in open court at the May 23rd hearing. They denounced the "cabal among military authorities and the prosecution arm of the government" with the contumacious cooperation of the trial court to deprive them of due process and to circumvent this Court's release order, as follows: 3.1. Preliminary investigation is instituted to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of public trial, and also to protect the state from useless and expensive trials. The right to preliminary investigation is a statutory grant and to withhold it would be to transgress constitutional due process. Salonga v. Hon. Ernani Cruz Pao, G.R. No. 59254, February 18, 1985, citing Trocio v. Manta, 118 SCRA 241; Hashim v. Boncam, 71 Phil. 216; People v. Oandasa, 25 SCRA 277. 3.2. Petitioners having been deprived of their constitutional right to due process by the Fiscal of Davao, therefore, the information for rebellion filed against them is void. 3.3. The information filed by the Fiscal of Davao being void, the Regional Trial Court of Davao has acquired no jurisdiction over the case of rebellion filed against petitioner. Therefore, all orders, warrants, processes, and issuances of the Court relative to the case, including the warrant for their arrest, are issued without authority and therefore null and void. 3.4. What becomes evident in the face of these developments is a cabal among military authorities and the prosecution arm of the government to bend and short circuit rules in order to deprive petitioners of their right to due process guaranteed by the Constitution, and to circumvent the order of this Court for their release. It is deplorable that the Regional Trial Court of Davao has lent itself to this conspiracy to undermine the Constitution and the authority of this Court.
3.5. All proceedings and orders in connection with the case of rebellion against petitioners being of no legal effect these cannot have the consequence of rendering the 22 case moot and academic.

II. The merits of the petition.I have gone to great lengths to restate hereinabove the antecedent facts as established by the pleadings and annexes of record and the hearing held by the Court on May 23rd. I submit that on the basis of these established facts, the "sacred constitutional rights [and] also the right to 'due process' which is fundamental fairness " as imperatively stressed by the majority decision in the recent case of Galman vs. Hon. P.J. Pamaran 23 have been grossly denied the three lawyers detainees. This Court's "immediately executory"release order of May 23rd (issued over four months ago) should be forthwith honored and complied with. Far from having rendered the petition as moot and academic, all the railroaded proceedings and orders charging the three petitioners-lawyers with instant rebellion in gross disregard of the pendency of this case and of the assurance given in open court that the petitioners-lawyers would be entitled to a hearing and a preliminary investigation in obedience to the constitutional mandate that "no person shall be deprived of life, liberty or property without due process of law " and "no person shall be held to answer for a criminal offense without due process of law, " 24should be declared null and void. They were patently void, having been issued without jurisdiction under the well-settled rule that "a violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment [or order] is null and void and confers no rights. " 25 At the very least, all proceedings in the instant rebellion case before the Davao trial court should be suspended and enjoined until the petitioners-lawyers are granted their right to a preliminary investigation and the opportunity to confront their accusers and disprove the charges; meanwhile, it is but part of due process that they be set free as ordered by the Court and be enabled to prepare their defense. The petition under the great writ of habeas corpus to set them at liberty should accordingly be granted for the following fundamental reasons and considerations: 1. Basic Right to Due Process.The Bill of Rights expressly mandates that ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized ." 26This plainly means that generally no person may be held to answer for a criminal offense without a preliminary investigation. The right to a preliminary investigation is statutorily granted for serious offenses and to deny it violates the right to due process guaranteed by the Constitution. 27 Preliminary investigation has been instituted precisely to secure the innocent against hasty, malicious and oppressive prosecution. Moreover, the instant rebellion case filed against the petitioners manifestly falls under three recognized exceptions to the general rule that criminal prosecution may not be blocked by court prohibition or injunction, namely, "l. for the orderly administration of justice; 2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; ...; and 4. to afford adequate protection to constitutional rights. .... 28 2. Petitioners-lawyers denied due process.The blitzkrieg filing of precipitate, vindictive and oppressive charges against petitioners-lawyers for the capital crime of rebellion without hearing and preliminary investigation deprived them their right to due process and the rudimentary requirements of fair play. As the majority, quoting former Chief Justice Enrique M. Fernando, emphasized in the recent case of Galman vs. Pamaran, supra, 29 "due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due

process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play ... It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought.' ... It is not a narrow or 'technical conception with fixed content unrelated to time, place and circumstances,' ... decisions based on such a clause requiring a 'close and perceptive inquiry into fundamental principles of our society.' ... Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. .... " 29-a 3. Right to preliminary investigation.-The May 23rd hearing brought out the importance of preliminary investigation to prevent hasty and baseless prosecution, since respondents could not cite concrete evidence of specific criminal acts committed by respondents. Respondent general secured the PDA on January 25, 1985 on the basis of affidavits of surrendered NPA's supposedly incriminating the petitioners, which was issued "on the basis of evidence and verified reports that the (petitioners-lawyers) have committed subversion and/or acts inimical to public safety, national security and public order." 30 Respondents would cavalierly tag the petitioners-lawyers as having gone "beyond purview of lawyering, but even to the extent of attending CPP and NPA rites, and using their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives, "as per the affidavit executed under date of January 22, 1985 by the Davao intelligence chief Lt. Col. Nelson J. Estares. 31 As pointed out by petitioners in their verified traverse, this affidavit has no probative value. It is not based on the affiant's direct knowledge but offers hearsay, on his alleged interviews with surrendered NPA's and "to the best of [this] knowledge and ability." It would have been a simple matter for the alleged witnesses to have executed their own affidavits. In turn, petitioners have categorically denied that they are members of the CCP or NDF. Attys. Ilagan and Arellano said in open court that they are chairman and secretary-general, respectively, of BAYAN-Mindanao, affiliated with the national organization of BAYAN (Bagong Alyansang Makabayan) with former Senators Lorenzo M. Taada and Ambrosio Padilla as chairman and vice-chairman, respectively, and among whose national leaders is former Manila Times publisher Joaquin "Chino" P. Roces. But strangely enough, while the aforesaid documents were executed in January, 1985 to secure the PDA for subversion against petitioners, the instant charge filed without hearing by the fiscal apparently based on the same affidavits is now for rebellion which would involve the petitioners rising in arms. The whole point is that petitioners' lawyers have squarely presented to this case the undeniable and undisputed facts that they have been denied their right to preliminary investigation and to show the utter falsity of the charge of instant rebellion against them. Such right was assured them in open court by the State's attorneys. It is this Court which must grant petitioners this right, and uphold their right to due process. The obiter dictum cited by the majority decision from the case of Medina vs. Orozco 32 that "the proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court" has no application. There, this Court found that not only was a preliminary investigation made, but also a subsequent reinvestigation upon his motion, after which the case against the accused proceeded to trial. 4. Professional witnesses of military not checked out.-As shown above, supra, 33 as admitted by the State attorneys, there are so many professional witnesses presented by the

military in such cases, whose statements should not be "swallowed hook, line and sinker." The ex-parte affidavits of the alleged surrendered NPAs could be checked out as against their background and an independent investigation only in a preliminary investigation. Such affidavits and statements have been found to be completely worthless in other cases. In the habeas corpus case of Aristedes Sarmiento, he and his wife were charged with subversion on March 31, 1983, as ranking leaders of the NPA, after they had been "invited" and detained at the military camp in Gumaca, Quezon on October 9, 1982. After the prosecution rested its case, the trial court granted the defense' motion for dismissal of the charges for utter "worthlessness of evidence." The trial court ruled that "(I)ndeed, there is nothing that the Armed Forces of the Philippines or any of the law enforcement agencies of the Government could offer to prove any connection of the Sarmiento couple with any subversive organization, even with the New People's Army, if ever it is to be considered such, and much more as leaders thereof." This led to an apparently unheeded call from the now Chief Justice that "The military establishment should inquire into whether the President was deceived into issuing the PCO and who initiated the arrest of the couple without supporting evidence." In petitioners' verified traverse, they point out that respondents' "star witness" against petitioners is one Calixto Alegado III, an alleged former NPA who is now a member of the Philippine Constabulary. They state that Calixto Alegado Ill is precisely one of those professional witnesses unworthy of credence who has testified in a number of national security cases and who should be checked out in an independent investigation as assured by the State attorneys at the May 23rd hearing, thus: "In Criminal Case No. 9198 before the Regional Trial Court of Davao entitled People of the Philippines v. Carlito Gaspar, Alegado testified that he witnessed the accused therein giving lectures for the CPP/NPA at dates when the accused Carlito Gaspar was either in Manila or out of the country, more specifically in Australia and Latin America. On the basis of this affiant's testimony together with other supposed former CPP/NPA members, the Regional Trial Court found Alegado not worthy of belief and acquitted Gaspar. It is significant to point out here that the counsel of Carlito Gaspar in that case is petitioner Atty. Laurente Ilagan." 34 5. Protective mantle of this Court.The unlawful arrest and detention of the petitionerslawyers has completely uprooted their lives. This Court must extend them its protective mantle as officers of the courts, because of the strong indications, supra, 35 of "ominous trends" for lawyers "who are engaged in pro bono publico work who have incurred the ire of the military," such as in the case of Abra, where there are no more lawyers handling subversion cases because the only two human rights lawyers handling such cases have been charged with subversion and locked up in the stockade. As formulated by Justice J.B.L. Reyes in response to a question of Mr. Justice Gutierrez why the lawyers were picked out for criminal charges (when there were non-lawyers who also led the welga), "(Y)es, precisely they pick the lawyers because I suppose they figure out that in fact the lawyers are actually social leaders in their respective communities. That is why, if Your Honors please, we are pleading this Court for the prosecution because after all the lawyers are officers of the Court and if the Court will not protect them, who will? Certainly not the military. We certainly hope that a lawyer will not, in the long run, will not be asking the NPA for protection, because nobody else wants to protect them." 36 6. People's right of assembly.-The people's right to freedom of expression and to peaceably assemble and petition the government for redress of grievances are fundamental constitutional rights. Mass demonstrations popularly termed as welgang bayan constitute a

legitimate exercise of these basic constitutional rights. Indeed, as the Court stressed in Jose B. L. Reyes vs. Ramon Bagatsing 37 "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest." The Court therein reminded the police (and the military for that matter) of their duty to extend protection to the demonstrators/participants "staying at a discreet distance, but ever ready and alert to perform their duty." It further admonished that should any disorderly conduct or incidents occur, whether provoked or otherwise, such incidents of disorderly conduct by individual members of a crowd should not be seized "as an excuse to characterize the assembly as seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly. 38 . The military must overcome their allergy if not aversion to such welgas. Acting AFP Chief of Staff Lt. Gen. Fidel V. Ramos recently, correctly urged those involved in law enforcement and criminal justice system to "keep themselves up-to-date on the [changing] law and jurisprudence and the intricacies of implementation" adding that "as law enforcers they must be convinced by heart that they enforce the law and never violate it. 39 Petitioners candidly state in their verified traverse that "(T)he possibility that the Communist Party of the Philippines and the National Democratic Front may have participated in or used the events for their own purposes may be assumed for purposes of argument. It is not fair inference from this assumption that all those who participated in any significant degree in the strikes and the activities held in connection therewith are members of the Communist Party of the Philippines or the National Democratic Front," 40 but they rightfully submit that "(T)o conclude that persons who participate in such mass activities are communists or subversives and to restrain them in their freedom as a consequence is the worst form of witch-hunting violative of all principles of fair play and due process." 41 In the Philippine Blooming Mills case 42 this Court set aside the industrial court's decision dismissing from employment the workers' labor union's eight officers for having led and carried out a "temporary stoppage of work" to hold a mass demonstration at Malacaang of all the workers on March 4, 1969 in protest against alleged abuses of the Pasig police. It held that such dismissal was violative of the workers' legitimate exercise of their constitutional rights of free expression, peaceable assembly and petition for redress of grievance, thus: ... Recognition and protection of such freedoms are imperative on all public officers including the courts (as well as private citizens and corporations ... when even a law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is no time limit to the exercise of these freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity, to be invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise, these guarantees in the Bill of Rights would be vitiated by a rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for time.

7. Preservation of liberties and motives.Good faith must be presumed as well on the part of respondents as of petitioners-lawyers. The good motive but misplaced overzealousness of the military, particularly as headed by respondent general in the Davao area, may be noted, obsessed as they are with keeping peace and order. But it seems appropriate and timely to cite the pointed reminder of the late Mr. Justice William Douglas as reproduced in the PBM case, as follows: The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill-good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty. ... The Motives of these men are often commendable. What we must remember, however, is thatpreservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another larger surrender. The battle over the Bill of Rights is a never ending one. ... The liberties of any person are the liberties of all of us.
... In short, the liberties of none are safe unless the liberties of all are protected.
43

The record of the May 23rd hearing highlights the imperative importance of the injunction that no matter how worthy the motive may be, the authorities, civilian or military, should not suppress the people's liberties, and push the aggrieved citizen in despair towards the NPA or the communists; and respect their constitutional rights as otherwise there would be no difference as against the outlaws or rebels. For as Brandeis called it, "Crime is contagious. If the government becomes the lawbreaker it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy." The record again underscores the utter lack of evidence to support the unlawful arrest and detention of the three petitionerslawyers, thus: JUSTICE TEEHANKEE: Q All right, I will ask one more question on that. Since it was organized, this Mindanao Chapter, in April you already had a PDA in January. Did you not or the Military exercise strict surveillance daily over the activities of these people? So that you can catch them with the goods? SOLICITOR ABAD A Well, it is not that simple, if Your Honor please, because rebellion is not a crime committed (with) not exactly with bouncing checks or similar crimes.

JUSTICE TEEHANKEE Q True, that's very true, but ...? SOLICITOR ABAD A So precisely a good rebel is one who is not caught, he was able to lose himself in the populace. How can we expect let's say a member of a front organization of the NPA will carry an Id, if Your Honor please. JUSTICE TEEHANKEE Q But you have to look into the record of the individual. SOLICITOR ABAD A I think they have, Your Honor. JUSTICE TEEHANKEE Q You have to look into the record of these individuals here, lawyers, members of the Bar of good standing, without any derogatory record, is it within the ordinary course of human conduct that they would prostitute their profession, pervert it and serve as fronts? SOLICITOR ABAD A Horacio Morales, Your Honor, was a Government Executive, in the same manner as Atty. Ocampo was a good journalist, but they admitted they have turned to the communist side. We cannot say that a background of a man is sufficient guarantee that he is not going to join the rebellion. JUSTICE TEEHANKEE Q As far as Morales is concerned he gave up on reforms, he was desperate; that is why he says there is no other way... SOLICITOR ABAD A Well, that's what I mean, if Your Honor please, an individual supplace (sic) society, the old society ... JUSTICE TEEHANKEE

Q Society (should) not push the aggrieved citizen towards the NPA or the communist party as a last resort. And therefore, we must observe their Constitutional rights. Otherwise, there is no difference? SOLICITOR ABAD A There were 3 million people who were unable to use the streets of Davao, if Your Honor please, its their constitutional rights to travel to bring their sick to the hospitals and were violated by these ... JUSTICE MAKASIAR Q Compaero, your position is that history is replete with examples of traitors and quislings from high society or high Government circles. But the question is, while you affirm the fact that the communist is not necessarily open or overt, he is usually engaged in covert activities. Now what are the examples of these covert activities of these people? What is your evidence? SOLICITOR ABAD A Well, I read from a very authoritative document of the Communist Party of the Philippines JUSTICE TEEHANKEE Q That's begging the question? JUSTICE MAKASIAR Q And they deny? The communist party they accept membership... the Alyansa? SOLICITOR ABAD A Financial support, telling over the populace into supporting the rebellion; driving them away from the Government: giving financial support; harboring them in their homes. While these are not armed assistance given to the rebel, if Your Honor please, but its the duty also of the government to ... JUSTICE MAKASIAR Q ... the various dates of harboring them in their homes; the financial contributions made by them on such and such a date,

how much? Those are the particulars to support the conclusion that they had contributed, they were harboring them? SOLICITOR ABAD
A Well, as I said we have the evidence, the only problem is we are not prepared to produce 43 now the evidence. -a

Indeed, in their Urgent Motion for Reconsideration of the Court's May 23rd release order, respondents, "having obtained clearance for the declassification of the needed materials" submitted their "evidence, " consisting of hearsay military reports (rather than the direct affidavits of credible witnesses) and the affidavit of a discredited and perjured professional witness, an alleged NPA, now a member of the Philippine Constabulary, supra. 43-b No concrete evidence whatever has been submitted therein against petitionerslawyers, other than to recklessly red brush their legitimate organization (BAYAN-Mindanao) as communist-led or infiltrated front organizations and to characterize the series of welgas or strikes in Mindanao as implementation of the NDF program of activities to organize and mobilize the "middle forces" of society, supra. 43-c 8. Basic concepts and principles of freedom-The PBM case, citing numerous precedents, restated basic concepts and principles which, to my mind, underlie and are determinative of the issues at bar, as follows:
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is thecentral core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be 'protected to the 44 largest possible extent in his thoughts and in his beliefs as the citadel of his person. (2) The Bill of Rights is designed to preserve the Ideals of liberty, equality and security 'against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with 45 general principles. In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw 'certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be 46 submitted to a vote; they depend on the outcome of no elections. Laski proclaimed that 'the happiness of the individual not the well-being of the State, was the criterion on by which its behaviour was to be judged. His interests, not its power, set the limits to the 47 authority it was entitled to exercise. (3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the Ideas that we abhor or hate more than the Ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to 48 talk, but also to benefit the majority who refuse to listen. And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are 49 not safe unless the liberties of all are protected.

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over 50 property rights is recognized. Because these freedoms are 'delicate and vulnerable, as well as supremely precious in our society' and the 'threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,' they 'need breathing 51 space to survive,' permitting government regulation only 'with narrow specificity.

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful and of oligarchs political economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and 52 political institutions; and such priority 'gives these liberties a sanctity and a sanction not 53 permitting dubious intrusions.

xxx xxx xxx

In seeking sanctuary behind their freedom of expression as well as their right of assembly and of petition against alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them, by the Constitution-the untrammelled enjoyment of their basic human rights. ... Material loss can be repaired or adequately compensated. The debasement of the human being-broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like 54 rubbing salt on bruised tissues.

9. The express teaching of the Salonga case.The express teaching on freedom of expression, based on numerous precedents, of this Court's unanimous decision (11 members with 3 abstentions) in the case of Salonga vs. Pao 55 should dispel the apparent misconception on the part of the military, us well as certain government prosecutors, that militant protests and demonstrations are seditious and subversive of the government . This Court set forth therein guiding and controlling constitutional principles and precepts governing constitutionally protected spheres and areas reserved by the Bill of Rights for the individual "where even the awesome powers of government may not enter at will," as follows: "... if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought-not free thought for those who

agree with us but freedom for the thought that we hate;" that " freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive economic or other liberties;" that "this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions . This Court is particularly concerned when allegations are made that restraints have been imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public issues should be uninhibited, robust and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials;" that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action;" that "political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan to overthrow the government through illegal means, " and that "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so." 10. Peaceful and violent welgas.The military and the police but adhere to the aforecited basic democratic concepts and principles and recognize the people's constitutional right of assembly, protest and petition for redress of grievances and accordingly exercise forbearance and understanding, then the welgas will not and cannot erupt in violence. As emphasized in the PBM case, there is no time limit in the exercise of these basic freedoms of free expression, peaceable assembly and petition for redress of grievances. The right to enjoy them is not exhausted "by . . . . the staging of one demonstration." It is a continuing immunity, to be exercised whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. This is borne out by the numerous demonstrations, rallies and welgas in Manila, Bataan and many other provinces. The Welgang bayan in Bataan against, the nuclear plant which paralyzed the whole of the province for three days last June were carried out peacefully without any violence, despite certain critical moments when the provincial commander ordered his forces to advance thru a blockade manned by some 4,000 people. He later withdrew his orders after a dialogue with the protestors. The behaviour of both the military and the demonstrators merited commendations from all sectors. The President himself was quoted as saying that "the official policy of maximum tolerance in dealing with mass demonstrations paid off during the welgang Bayan in Bataan." 56 In this case, the May 2-3, 1985 welgang bayan which incurred the ire and displeasure of the military was carried out without any ugly incidents. But the aggressiveness and intolerance of the military and CHDF forces inEscalante, Negros Occidental turned the welgang bayan there into a bloodbath last September 20th. Some thirty demonstrators, including

women, were reported killed when government troops who were supposed to keep order during the rally opened fire at the massed crowd when some troublemakers reportedly tried to snatch their firearms. As observed in one editorial, "once government soldiers or police open fire on a rally crowd, the result would be a virtual massacre for the enforcers are better armed." 57 "Indeed, the use of combat-ready and trigger-happy troops trained only to shootto-kill without any training in crowd control of demonstrators or rallyists should be restudied. As stated in my separate opinion in Hildawa vs. Minister of Defense. 58 "The Supreme Court stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffedon out without due process in a split second even if he is caught in flagrante delicto-unless it was called for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased." 11. The Stale PDA.-Iwill not deal here with the serious question raised by petitioners as to the validity of the PDA issued by the President under date of January 25, 1985 for the arrest and detention of the three petitioners-lawyers for having "committed subversion and/or acts inimical to public safety, national security and public order." This question is better resolved in the separate case filed by the Integrated Bar of the Philippines for the declaration of unconstitutionality of the Presidential Decrees authorizing, among others, the issuance by the President of PDA's without the constitutional requirement that any officer issuing a warrant of arrest must personally examine the complainant and the witnesses he may present. 59 Suffice it to state that the PDA against petitioners was already inoperative and stale. It was issued on January 25, 1985. As respondent general himself states in the return, the military did not see any need to enforce it until after almost four months later on May 10 to 13 of this year. What is incomprehensible is that no copy certified or plain of the PDA could be shown to the petitioners upon their arrest, contrary to existing rules and instructions. A xerox copy of the PDA was first seen by them only with the filing of the respondents' return, in this case on last May 23rd. Be that as it may, the PDA should be held to be inoperative and ineffectual. The facts and records as hereinabove stated patently show that the President was misled into precipitately issuing the same: A. By the President's own statement, he had declared that "he would issue the controversial Preventive Detention Action (PDA) orders only when national security would require it and that there is no present need for him to do it."60 The PDA was issued on January 25, 1985. Under the implementing rules, it should have been served within forty-eight (48) hours since it covered persons outside Metro Manila (in Metro Manila, the prescribed period of service is twenty-four [24] hours). The respondent general's own admission that there was no need to serve it until after almost four months later shows that there was no necessity for the peremptory issuance of the PDA last January 25th. B. The issuance of the PDA against the three petitioners lawyers clearly do not fall within the two exceptions to the general rule provided in section I of P.D. 1877, as amended, that all cases involving national security offenses "shall be referred to the provincial or city fiscal

or to the proper court for preliminary examination or investigation in accordance with existing laws. " The two exceptions provided in section 2 of the said P.D. are as follows: SEC. 2. Only upon proper warrant issued by the Court or other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and his witnesses, shall the person or persons charged with the above-mentioned crimes be arrested and detained;Provided, however, that should a military commander or the head of a law enforcement agency ascertain that the person or persons to be arrested has/have committed, is/are actually committing, or is/are about to commit the above-mentioned crimes, or would probably escape or commit further acts which would endanger public order and safety as well as the stability of the state before proper warrant could be obtained, the said military commander or the head of law enforcement agency may apply to the President of the Philippines for a preventive detention action against the person or persons ascertained to be participants in the commission of the crimes referred to in Section I hereof, under the following circumstances: (a) When resort to judicial processes is not possible or expedient without endangering public order and safety; (b) When in the judgement of the President of the Philippines to apply for a judicial warrant may prejudice peace and order and the safety of the state like when it may jeopardize the continued covert intelligence counter insurgency operations of the Government, or endanger the lives of intelligence and undercover agents whose Identities would be revealed by the evidence against the person or persons covered by a preventive detention action. There is no question here of judicial process not being possible or expedient. It is obvious from the facts of record that it would be absurd to say that the. PDA could fall under the second exception that to apply for a judicial warrant would prejudice public order and the safety of the state. The mere gap of almost four months between its issuance on January 25th and its actual service on May 10-12 this year speaks for itself Furthermore, as succinctly stated by petitioners in their verified traverse, "(A)s members of this Court pointed out in the hearing of May 23, 1985, the alleged PDA was issued as early as January 25, 1985. Petitioners were not hiding. They were regularly discharging their functions as lawyers, including visiting their clients in military camps. There was more than ample time from the issuance of the alleged PDA up to the time when petitioners were actually arrested and detained for respondents to place them under close surveillance so that concrete, credible evidence of their supposed criminal activities and connection might be established 'to catch them with the goods' so to speak. With the manpower and the resources at the command of respondents, they have failed to produce that evidence." 61 Indeed, as the ponente, Mme. Justice Herrera, notes in her additional opinion, which failed to gain the majority's concurrence, "it is my view that individuals against whom PDAs have been issued should be furnished with the original or the duplicate original or a certified true copy issued by the official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and Regulations Implementing Presidential Decree No. 1877, as

amended by Presidential Decree No. 1877-A, the PDAs should also be enforced within 24 hours in the Metro Manila area or within 48 hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed 'any appreciable danger to national security and public order.' " (Italics supplied) 12. Civilian Supremacy.Art II, section 8 of our Constitution's Declaration of Principles and State Policies states that "Civilian authority is at all times supreme over the military. " But the military here dragged its feet and refused to honor this Court's "immediately executory" release order of May 23rd. Without waiting for the resolution of its motion for reconsideration of the Court's release order, respondent general, who had secured the PDA, then filed the new charge of rebellion against petitioners and with the deplorable acquiescence of the city fiscal and the trial judge, the former filed the instant information for the capital crime of rebellion and the latter in tum issued the warrant of arrest without bail. Respondent general was quoted as saying that "The Supreme Court won in only one point. And that is, we had to file the the charges much sooner" 62 as if this Court were an adverse protagonist instead of the final arbiter and the third department of government vested by the Constitution with the judicial power to determine and adjudicate all justiciable disputes. The same general is quoted as replying in a letter of April 1, 1985 to Atty. Jesus G. Dureza, IBP Davao chapter (who was asking why detainees continue to languish in jail despite court decisions either releasing or acquitting them) that "To begin with, I believe it may be necessary to review our position on these cases (human rights cases). I express this need because, despite recent court decisions otherwise, I am morally convinced that some released suspected communist subversives are guilty." 63This Court's decisions and orders form part of the law of the land It is a sad day for civilian supremacy when the military do not feel bound by the verdict of the courts and would place themselves above the courts and require as a condition for executing its judgment that they be "morally convinced" by the judgment rendered. To allow such usurpation and denigration of the Court's power of judicial review is to subvert, if not destroy, the Constitution and the Rule of Law. The survival of a democratic society rests on the Rule of Law, which depends on the existence of an independent judiciary. In endorse and reproduce herein the impassioned appeal made by then Justice Makasiar in his address in 1980 before the Philconsa against the proposed return of the supervision of lower courts from the Supreme Court to the Ministry of Justice, supra, 64 as follows: On the rule of law rests the survival of a democratic state. But the rule of law depends on the existence of an independent judiciary. 'Those who (make the proposal), I hope, realize that the ill-effects of such a proposal will reach them and their children. Even at this late stage in our lives when we are about to fade from the scene, we cannot evade the tragic consequences of such a proposal; but those who will suffer more would be the succeeding generations-including the children of those proposing the subtle destruction of the foundations of the judicial system.

In the evening of our lives, let us not emasculate one branch of the government that is the last sanctuary of our lives and our liberties-the judiciary. As an enduring legacy to the generations that will come after us, let us all continue to strengthen the Supreme Court and the entire judicial system. The contemporary scene demonstrates once again that injustice breeds dissidence which seethes and finally explodes into a violent and bloody revolution. To all human beings, the denial of justice is a mortal assault on life itself. Where the human spirit is brutalized by abuses and inequities, the ultimate hope for liberation lies in the force of arms unless the courts can effectively enforce the rule of law. Our historical experience delineated the varied seeds of armed rebellion or insurrection with which all of you are familiar. The ruthless exploitation of peasants and laborers, the lust for and arrogance of power, unabated corruption, unequal application of the law. the prostitution of elections, despoliation of the national patrimony by a a favored few, as well as the monopoly and manipulation of the supply and distribution of economic goods essential to man's existence-all constitute the many facets of injustice that provide the dynamics of open defiance of the status quo. The warning has been issued that a tyrant, who wants complete and absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy must be averted. To support any proposal that erodes the independence of the courts, abets subversion of the rule of law, undermines the stability of our democratic institutions, imperils the liberties of the individual, or gives aid and comfort to the enemies of the people-is akin to committing treason against the nation. " (Italics supplied) 13. The Supreme Court as guardian and final arbiter of the Constitution .The judiciary, as headed by the Supreme Court has neither the power of the sword nor the purse. Yet as the third great department of government, it is entrusted by the Constitution with the judicial power-the awesome power and task of determining disputes between litigants involving life, liberty and fortune and protecting the citizen against arbitrary or oppressive action of the State. The Supreme Court and all inferior courts are called upon by the Constitution "to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary [assisted by the bar] stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive as also transgression of its constitutional limitations by the legislature." 65 The Constitution is basically a charter of limitations of governmental power and enshrines a system of separation of powers and checks and balances under which no man is the law nor above the law. It ordains the weakest department, the Supreme Court, as the guardian and final arbiter of the Constitution. It postulates and requires a free and independent

judiciary, sworn to defend and enforce the Constitution and the law without fear or favor. It mandates that civilian authority is at all times supreme over the military. Like His Holiness, the Pope, the Supreme Court has no battalions, tanks or guns to enforce its decisions. Its strength lies in that its verdicts would be obeyed by the sheer moral force and truth of its judgments for as long as the Court kept the faith and confidence reposed in it by the people through the Constitution to render justice and sustained their moral conviction that through the Supreme Court, justice and the voice of reason and truth would prevail in the end. Under the Rule of Law, "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines " (Art. 8, Civil Code) and the Excutive and all its offices and agencies. and particularly the military, are called upon to execute the laws as so interpreted and adjudged by the courts and enforce obedience thereto. 65-a As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara us. Electoral Commission, 66"The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other department ...but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them." Let all bear ever in mind that " (I)n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious If the Government becomes the lawbreaker it breeds contempt for the law it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. 67 14. Erroneous premises of the majority decision. A. The majority decision holds that under section 4, Rule 102 the writ of habeas corpus has served its purpose because of the judicial warrant of arrest issued by the Regional Trial Court. This is based on an erroneous premise that the trial court had such jurisdiction to issue the warrant of arrest, and that the denial of a preliminary investigation of petitionerslawyers was a mere informality or defect.As already emphasized hereinabove, the trial court was totally devoid and ousted of jurisdiction to issue a warrant of arrest because of the gross denial to petitioners-lawyers of their constitutional right to due process.

B. The majority decision holds that the filing of the information without preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. 68 Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The petitioners are not persons "lawfully arrested without a warrant. " The fiscal could not rely on the stale and inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was needed was to get a PDA and then serve it at one's whim and caprice when the very issuance of the PDA is premised on its imperative urgency and necessity as declared by the President himself. The majority decision then relies on Rule 113, sec. 5 which authorizes arrests without warrant by a citizen or by a police officer who witnessed the arrestee in flagrante delicto, viz, in the act of committing the offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante delicto violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure have tightened and made the rules more strict. Thus, the Rule now requires that an offense " has in fact just been committed. " This connotes immediacy in point of time and excludes cases under the old rule where an offense "has in fact been committed" no matter how long ago. Similarly, the arrestor must have "personal knowledge of facts indicating that the arrestee has committed it" (instead of just "reasonable ground to believe that the arrestee has committed it" under the old rule). Clearly, then, an information could not just be filed against the petitioners without due process and preliminary investigation. C. The majority decision's rationale that the Nolasco case invoked by petitioners is not applicable here since the trial court had granted bail to Nolasco for a number of non-capital offenses, whereas in this case petitioners are charged with the capital offense of rebellion and the trial court has not allowed bail. This is erroneously premised. As already emphasized above, the instant information for rebellion against petitioners is null and void for denial of due process. What remains is the PDA, just like in the Nolasco case. There, the trial court granted bail. Here, it is this Court that has granted bail in the form of its May 23rd "immediately executory" release order. It certainly would be judicial anathema that this Court ordered compliance with the bail order of the trial court in the Nolasco case and yet feel impotent to enforce its own "immediately executory" release order of the petitionerslawyers upon their counsel's recognizance. More so, when the petitioners are members of the Philippine Bar and officers of this Court. The irony of the situation can be thus depicted. Had this Court simply ordered the immediate enforcement without delay of its May 23rd order, by May 24th, the petitioners would have not been under detention. There would be no basis to claim that they were "lawfully arrested without warrant" and therefore could be instantly charged for the most heinous crimes without preliminary investigation. D. As stressed by the writer in German vs. Barangan, 69 "to require the citizen at every step to assert his rights and to go to court is to render illusory his rights. " Here, the flaunting and disregard of the Court's immediately executory May 23rd release order by not releasing the petitioners-lawyers so that it could be claimed that they fell under Rule 112, section 7 and considered as "lawfully arrested without warrant" wherein "the information may be filed by the ... fiscal without preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person" (which affidavit had long been executed since January, 1985 while the unlawful arrests were made on May 10-13

and in no way could be termed as in flagrante delicto would render illusory petitioners' right to due process and preliminary investigation. The majority decision should properly apply the case of Abejuela cited by it 70 that the trial court is called upon "not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. "Meanwhile, this Court's release order should be complied with without one moment's delay. Respondents' filing two days later on May 25th of an "urgent motion for reconsideration" could in no way cause or justify suspension or noncompliance with this Court's release order. 15. Same standard in Galman case of not jeopardizing accused's constitutional rights should be applied. In the recent case of Galman vs. Pamaran, the majority held that "the only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in 'fact been offered [by the prosecution] ... (hence) the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self- incrimination which the same law practically strips away from the witness." The same standard and concern of not placing the accused "in jeopardy of their constitutional rights" through denial of due process and their right to preliminary investigation should be applied here. The only way is to construe it in the manner as if this Court's release order had in fact been immediately complied with and petitioners could in no way be deemed as "lawfully arrested without warrant." Otherwise, the Rule on preliminary investigation would not be "cured of its unconstitutional effects" by allowing the railroading on May 27th of the instant information for rebellion without preliminary investigation thru respondent general's contumacious and unlawful act of disobeying the Court's May 23rd release order. This was the same standard that would have been applied in the Court's aborted decision in Eastern Broadcasting Corp. (DYRE) vs. Hon. Dans, Jr. 71 There, this Court brushed aside respondents' procedural arguments to dismiss the petition as "moot and academic" because of the non-renewal of the petitioner's radio broadcasting station's license from the time of its summary closure in 1980 up to the time of the Court's determination in July this year. Instead, as noted in the writer's separate opinion therein, this Court "serve(d) notice that in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for non-renewal of its license having been shown, it is as if the said license has been duly extended up to the end of the current term or year. It is expected that respondents will forthwith return the crystal of the transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in accordance with the judgment at bar." Applying this standard to the case at bar, would simply mean that the clock would simply be turned back to the day of this Court's immediately executory release order of May 23rd this year, as if the same order had been faithfully and lawfully complied with. Only thus could substantial and not paper justice be done and the petitioners be not deprived of their constitutional right to due process and be secured by preliminary investigation against hasty, oppressive and vindictive prosecution. 16. "The preservation of freedom, like its perfection is a never ending struggle."This was the exhortation of President Ferdinand Edralin Marcos at the observance at Fort Bonifacio

last May 27th of American Memorial Day. He admonished the people that "democracy is a condition requiring constant vigilance. Neither totalitarianism nor authoritarianism can by themselves triumph over the democratic Ideal. But when free men shirk from their duties to society, as well as to themselves, they imperil their own liberty. When the citizens of a democracy allow themselves to be lulled into indifference, they seal their own doom. ... If we are to remain free at all, we must show ourselves to be capable and willing to fight in defense of our way of life. " 72 17. Former Chief Justice Roberto Concepcion, who with IBP President Emeritus J.B.L. Reyes, has shunned their well-earned rest and in their eighties continue at the forefront of upholding the cause of freedom and human rights and rendering free legal aid to the poor, disadvantaged and oppressed, made this plea for the cause of the independence of the judiciary at the hall of the Court which he once presided with honor, dignity and integrity. "During the 85 years of this century, there has never been a case as transcendental as this one. We have tried and bolstered to be a democratic society which is based and predicated upon freedom of speech. But to bolster up the freedom of speech, we've established the right of every person accused and even detained to counsel. Now, any (act) tending to impair the disposition of lawyers to represent the accused, is derogatory to the democratic system, and therefore, derogatory to human rights. It is significant that at first only, I would say, only persons suspected of being subversives were being arrested and later on salvaged. I don't know how the word salvage happened to be used, because salvage from what ...Then even the priests, ... we have started from the North to the Southernmost part of the Philippines, from Abra to Davao, with lawyers. The only step higher than that echelon is the Judiciary. So it's not only the lawyers that are being involved in this case, it is the Judiciary, the independence of the Judiciary." 73 His Holiness Pope John Paul II in his address of February 17, 1981 to the President and the Nation during his Philippine visit stressed that " Even in exceptional situations that may at times arise, one can never justify any violation of the fundamental dignity of the human person or of the basic rights that safeguard this dignity Legitimate concern for the security of a nation, as demanded by the common good, could lead to the temptation of subjugating to the State the human being and his or her dignity and rights. Any apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved according to the fundamental principle upheld always by the Church that social organization exists only for the service of man and for the protection of his dignity, and that it cannot claim to serve the common good when human rights are not safeguarded." 17. Petitioners'appeal for liberty should be heeded.-Petitioner Ilagan concisely stated at the May 23rd hearing that his objective as BAYAN s chairman is To achieve reforms in the government by voicing our grievances. " 74 In an open letter to his colleagues of the Integrated Bar, after expressing , 'grateful appreciation for the generous assistance, both financial and moral, which I and my family received . . . . (and) welcomed . . . . for reasons of necessity" (which hardliners would consider as a criminal act of the sympathizers and "assisting and aiding the enemy"), petitioner Ilagan makes this poignant appeal: ... What we are here for may not be your concern, but that we are here without due process of law should interest you all if you are true to your calling. We lawyers are adept at defending persons and interests in all the

courts and forums of the land. We, particularly should be the first concerned at defending our own. But, by all means, we deserve that sacred right to do so on legitimate, fair and equitable terms. Never mind that our families have to subsist on the meager earnings of our working wines, but foremost in our welfare is the right to be free, not only to prepare for our defense adequately but to give essence to that constitutional tenet that 'every person is presumed innocent until proven otherwise.' We cannot lay claim of a democratic society if we, lawyers, not only tolerate a lopsided view of the rule of law but ourselves fall prey to it.
That we are 'preventively detained' is pure euphemism. Deprived of liberty and entirely curtailed in the exercise of our basic rights, we are, in every sense, prisoners of the state. It is in this context that 1, on behalf of your three colleagues here, ask your whole75 hearted support in demanding justice for our cause.

Petitioners' eminent counsel make this stirring plea on their behalf: Constitutional history in republican democratic states is the story of the progressive triumph and expansion of human liberty as against the assertion of unrestrained power by monarchs, tyrants and other instrumentalities in the political community. Civilization under law has been marked by the departure from lese majeste, the strengthening of legal institutions, especially the independent courts, and the adoption of rules, substantive and procedural, so that freedom is the general and normal state of the people. Although in exceptional cases, their individual freedom could be restrained but only on serious grounds compatible with the Constitution and always upon due process. This, at any rate, is a fundamental principle of English and American constitutional law whence our own constitutional system has been derived. In the words of Justice Jugo Black . . . . From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of 'the law of the land' evolved the fundamental Idea that no man's life liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in public tribunal free of prejudice, passion excitement and tyrannical power. Thus, as an assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its basic law the requirement, among others, that the forfeiture of life, liberty or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed. The determination to preserve the accused's right to procedural due process sprang in large part from knowledge of historical truth that the rights and liberties of the people accused of crime could not safely be entrusted to secret inquisitorial processes. Chambers v. Florida, 309 U.S. 227.

In this jurisdiction, these rules are enshrined in the Bill of Rights in the Constitution and reenforced by statutes and the Rules of Court. xxx xxx xxx If a person is unlawfully deprived of his liberty, he can avail himself of the great writ of liberty, the privilege of the writ of habeas corpus for the purpose of regaining freedom in the shortest time possible. In its early years of practice, the privilege of the writ of habeas corpus was a puny and unavailing remedy as against the king. For judges were under the influence of the crown and refused to issue the writ for people who were detained on suspicion of disloyalty to the former but against whom there was no concrete evidence, and the people continued "to languish in extended detention. To remedy this evil, the Habeas Corpus Act was adopted in 1679. Ex Parte Watkins, 7 L. Ed. 193, 201; Ex Parte Yerger, 8 Wall. 85: MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 314-315. Since then, the privilege of the writ of habeas corpus has become the fundamental instrument against arbitrary and lawless state action. . The suspension of the privilege of the writ of habeas corpus carries with it the derogation of the people's freedoms and liberties. Therefore, the provisions must be strictly construed and cannot be allowed to extend to situations not explicitly allowed by the Constitution. Obliquely and subliminally respondents suggest to this Court to go back in history and to dismantlethe intricate system of reenforcing rules, principles and procedures that have developed through centuries of struggle for the more efficacious protection of individual liberty. They seek a return to thelese majeste when the voice of the King was the voice of God so that those who are touched by hisabsolute powers could only pray that the King acted prudently and wisely. Similarly respondents would have this Court and the people accept the proposition that the State's designation of persons as rebels and subversives without more is adequate basis for their immediate and indefinite detention. And that regardless of the quality or absence of evidence, the courts are powerless to intervene in behalf of the persons so designated. The Rule of Law and constitutionalism mean precisely the existence and the efficacy of legal institutions to protect and defend the rights and liberties of the people so they no longer have todepend upon prayers for the purpose.
Petitioners invoke the power of this Court to uphold the Constitution and to protect the rights of the people and to reject the basically undemocratic proposition suggested by 76 respondents.

I submit that the Court should heed petitioners' appeal for liberty. An editorial after the Court's stillborn May 23rd Resolution graphically articulates the compelling reasons for granting their plea for liberty: The government is not only the Chief Executive and the Batasang Pambansa. It necessarily includes the Supreme Court and the other courts. And time and again it has been shown that the performance of the judiciary affects the complexion of the two other branches. The en banc resolution of the Supreme Court ordering the release from confinement of the three Davao lawyers who have acted as defense counsel in national security cases illustrates the point. The resolution shows the power of the judicial review and affirms the supremacy of the Constitution. It shows the independence of the judiciary and allays the fear of the opposition that, the judiciary is an instrument of the Chief Executive. xxx xxx xxx Where the Constitution of the democracy is not supreme, the Supreme Court weakens as the Chief Executive becomes stronger. Where that situation obtains, the people no longer trust the courts nor the Constitution. In the democracies, the judiciary is usually the 'weakest' of the branches. But here and at this time, the exclusion of the judiciary from an analysis of the kind of government that obtains would make a big difference.
A government without an independent Supreme Court would be like an automobile 77 without brakes.

I vote to grant the petition for habeas corpus and to set the petitioners immediately at liberty. Petitioners must be granted their constitutional right to due process and the right to preliminary investigation, as granted by statute and expressly assured to them by respondents in open court at the May 23rd hearing. The railroaded ex-parteproceedings and orders in the instant rebellion case should be declared null and void for lack of jurisdiction in having deprived petitioners of their sacred constitutional right to due process. CONCEPCION, JR., J., dissenting: 1. I dissent. The petition is not moot and academic. 2. Petitioners should be set free immediately because they were arrested unlawfully, and the information filed against them dismissed for being null and void. However, the authorities may, if they choose to do so, file a case against petitioners in the Fiscal's Office of Davao. The fiscal should conduct a preliminary investigation as required by law. If he finds the existence of a prima facie case, then he should file the necessary information in

court. After the court issues a warrant of arrest against petitioners, only then may they be placed in custody. 3. Petitioners have a right to a preliminary investigation, and infringement of this right is a denial of due process. 4. The instances when a person may be arrested without a warrant are clearly laid down by Rule 113 of the 1985 Rules on Criminal Procedure as follows: SEC. 5. Arrest without warrant when lawful.-A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 1 1 2, Section 7. (6a, 17a). " 5. From the facts brought out by the pleadings and at the hearing, petitioners' arrest does not fall under any of the instances enumerated above. Their arrest without a warrant is therefore patently and undeniably illegal and contrary to law. 6. Just as a spring polluted at its source cannot produce a flow of clean water, the unlawful arrest of petitioners cannot give rise to a valid information. The information filed in court against them necessarily is and must remain null and void. 7. In Morales, 1 this Court cautioned against arrests without warrant in this wise: 14. Care should be exercised in making an arrest without a warrant. Where there is no justification for the arrest, the public officer could be criminally liable for arbitrary detention or unlawful arrest or for some other offense." 8. It is the responsibility of the judiciary to define and maintain the delicate balance between individual freedom and the security of the State. In the fulfillment of this mission, the active participation and assistance of dedicated human rights lawyers are indispensable. They sacrifice time and effort, and take grave risks to defend the rights of their clients. I salute them and say, "May their tribe increase."

9. At a time when the Armed Forces of the Philippines has to play a salient role in our affairs of government in view of the existence of a rebellion in our midst, there is all the more a greater need for lawyers to defend the rights of individuals against actual or possible abuses of agents of the State. 10. We must strengthen and solidify the Rule of Law. It is the only way to the survival of democracy in our land. Patajo J., concur ABAD SANTOS, J., dissenting : It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the early Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was replaced by substance. The development of the law did not stop there. The Roman praetorian law enlarged, supplemented and over-rode law which became narrow and rigid in scope. Finally, common law produced equity jurisprudence. It is a formal set of legal and procedural rules and doctrines to aid and even override common and statute law in order to protect rights and enforce duties fixed by substantive law. The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on the letter of the law. Upon the other hand the dissenting opinion of Justice Teehankee which is his article of faith appeals both to the mind and the heart for it is based not only on law but on equity also. I believe that Justice Teehankee's opinion better serves the ends of justice and I gladly subscribe to it. I also subscribe to Justice Concepcion's separate opinion

Separate Opinions MELENCIO-HERRERA, J., concurring I wish to express my views on other aspects of this case with which the majority does not concur. It is to be noted that in the Warrant of Arrest issued by the Executive Judge of the Regional Trial Court of Davao City "no bail" has been indicated. Neither was bail recommended by the City Fiscal. However, pursuant to Presidential Decree No. 1834, even as amended by Presidential Decree No. 1974 (May 2, 1985), the crime of Rebellion is still punishable by "reclusion perpetua to death." Presidential Decree No. 1974 did not reduce the penalty for Rebellion under Article 135 of the Revised Penal Code, as amended by Presidential Decree No. 1834, but merely "tempered" the penalties for "conspiracy or proposal or inciting to commit such crimes," limiting the amended provisions to Articles 136, 138, 141, 142, 142-B, 143, 144, 146, and 147, but not to Article 135 of the Revised Penal Code.

Considering, therefore, that the detained attorneys are not entitled to bail as a matter of right before the prosecution is heard on its evidence, and observing fealty to the Constitutional mandate that "all persons, except those charged with capital offenses, when evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties" (Section 18, Article IV, 1973 Constitution), the Regional Trial Court of Davao City, Branch X, should be directed in Criminal Case No. 12,349, to determine whether the evidence of guilt against the detained attorneys is strong, and considering the gravity of the offense charged, it should likewise be required to hear the case to completion with deliberate speed so that their guilt or innocence may be determined without delay. Furthermore, pending resolution by this Court of the crucial issues raised in GarciaPadilla and in Integrated Bar of the Philippines, et al vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66610) consolidated with National Bar Association of the Philippines, et all vs. Min. Juan Ponce Enrile, et al. (G.R. No. 66706), it is my view that individuals against whom PDA's have been issued should be furnished with the original, or the duplicate original, or a certified true copy issued by the official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No. 1877-A, the PDA's should also be enforced within 24 hours in the Metro Manila area or within 48 hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed "any appreciable danger to national security and public order. " The paramount consideration should be that the Constitutional "right of the people to be secure in their persons ... against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated" (Section 3, Article IV, 1973 Constitution). Until the issue of the validity of the PDA is finally resolved, PDA's applied for on the basis of militancy alone in national security cases, of insufficient surveillance, or unsupported deductions and inferences, contravene the Constitutional mandate that "no warrant of arrest shall issue except upon probable cause to be determined by the Judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce" (ibid.). Adherence to Constitutional mandates could ease the current discontent and growing insurgency gripping the nation today. The objective should be to fight for the hearts and minds of the people by observing the rule of law. Lastly I venture to invite attention, particularized for this case, that the Constitution provides for the vesting of judicial power not only in this Court but also in inferior Courts established by law. While this Court can reverse and modify, on appeal or certiorari, actuations of inferior Courts, the latter, as wielders of judicial power, can not only invoke, but also be entitled to, "procedural due process". Without a hearing, howsoever formal, the involved Regional Trial Court branch in Davao City should not be deprived of jurisdiction, substantial or even initial, over persons it has ordered, or confirmed as, arrested. TEEHANKEE, J., dissenting

More than four (4) agonizing months * after this Court issued its near-unanimous Resolution 1 of May 23, 1985, after hearing the parties in oral argument in the morning, ordering the immediate release of the three petitioners-detainees, Attys. Laurente C. Ilagan, Antonio B. Arellano and Marcos D. Risonar, Jr., on the recognizance of their principal counsel, retired Chief Justice Roberto Concepcion, Chairman, Integrated Bar of the Philippines national legal aid committee, and retired Justice Jose B. L. Reyes, President Emeritus of the Integrated Bar of the Philippines, as well as the president and officers of their own IBP Davao chapter, which release it had expressly ordered to be "immediately executory", this Court has now refused to enforce its own release order. Repeated motions for enforcement of this Court's "immediately executory" order of release as against respondents' "brazen disrespect and contemptous disregard" 2 thereof were filed in vain. It has instead dismissed the petition for habeas corpus for having become "moot and academic, " because of the arbitrary filing of precipitate, vindictive and oppressive charges against them for the capital crime of rebellion without hearing or preliminary investigation and in gross violation of their constitutional right and rudimentary requirements of due process and fair play. I. Antecedent Facts.The three lawyers, Attys. Ilagan, Arellano and Risonar, Jr., FLAG (Free Legal Assistance Group) human rights lawyers of Davao City, were illegally arrested and brought to the military stockade at Camp Catitipan, Davao City one after the other on May 10, 11 and 13, 1985, upon mission orders issued by the prime mover and initiator of the operations, respondent General Dionisio S. Tan-Guate, Jr. (hereinafter referred to as respondent general). The mission orders (which are military orders for carrying out a specific mission or military operations) are not warrants of arrest, much less Preventive Detention Actions (PDA's). The orders did not state what were the offenses allegedly committed, although indicating that they were being issued pursuant to a PDA, which was never shown nor produced by respondent general until a xerox copy thereof dated as early as January 25, 1985 was submitted with the respondents' return to the writ. No copy thereof was given the petitioners nor were they given any reason for which the three lawyers were taken into military custody. The first lawyer, Atty. Ilagan, was picked up at 10:45 a.m. on May 10th while taking a snack with some friends at a place in front of his office at C.M. Recto St. His military arrestors denied his request to be allowed to go to his office "a few meters away" so he could give instructions to his associates about a case scheduled for hearing that afternoon. 3 The second lawyer, Atty, Arellano, a law professor at the Ateneo de Davao law school, was one of fifteen IBP Davao Chapter lawyers who insisted on visiting Atty. Ilagan at the military camp on May 11th despite the military custodians' initial refusals that no visitors could be allowed "unless first cleared by R-2 (intelligence) or Gen. Tan-Guates aide." After the visit, he was told that he was under arrest under the mission order which was merely shown to him and he was no longer all owed to leave the camp. As he told the Court: "I just (went) to visit my colleague, a member of the IBP, to render legal assistance as I'm supposed to do as an officer of the Court. I came to visit, I came to render legal assistance. I was arrested and detained." 4 On May 13th, the third lawyer, Atty. Risonar, Jr.. having received word from the military that he was wanted, presented himself at Camp Catitipan. He was not shown even the mission order, much less a PDA or warrant of arrest. He was so shaken up by the traumatic experience of being himself wanted and arrested by the military (not having been given even a traffic violation ticket in his whole life) instead of his accustomed role of

helping hapless persons who have come across their path and assisting as a member of the Human Rights Committee "not only political detainees, but workers, students, teachers and urban community" that he almost broke down at the hearing and had to be asked to take firm hold of himself. 5 After the filing of the petition at bar and the issuance of the writ of habeas corpus to produce in court the persons of the three lawyers at the scheduled May 23rd hearing, they were transferred at 10 p.m. of the night of May 20th to the Metro-Discom stockade in Davao City and herded with a fourth person in a cramped cell, "a very small cell good only for 2 people. " The next day, they were picked up by "2 PC jeeps loaded with fully armed men" and in the words of Atty. Arellano, "in the presence of the detainees in the stockade, ... many of whom are my clients and in the presence of their visitors, ... and in the presence of our wives, ... we were handcuffed like ordinary criminals, and we were transported from that stockade up to the airport and from the airport we were brought to Manila and then we were brought to Camp Bicutan." 6 They have been since detained there, their lives shattered, uprooted from their homes and families, and deprived of their livelihood and their families left to fend for themselves. The Integrated Bar of the Philippines and other petitioners complain in their verified petition that "(B)eyond the harassment and the illegal arrest and detention of these three advocates, are grave implications for the craft. Their arrest appears to be a prelude to a campaign to ultimately deprive the accused in national security cases of the services of counsel in violation of the Constitution," citing "a readily discernible pattern from events in the recent past" including the killings of FLAG Atty. Zorro C. Aguilar and newsman Jacobo Amatong who gave an antemortem statement "that it was the military that shot them" in Dipolog City on September 23, 1984 and the killing of Atty. Romraflo R. Taojo in his own home in Tagum, Davao del Norte on April 2, 1985, who had been allegedly warned by the military about the nature of the cases he was handling. The petition further cited the case of petitioner MABINI trustee and co-founder Atty. Jojo Binay who was successful in having several criminal cases against his client Dr. Nemesio Prudente dropped, but in April this year "found himself a co-respondent with his client Dr. Prudente in a new subversion charge filed by the military with the provincial fiscal of Rizal. " Also cited were the cases of Attys. Romeo Astudillo and Alberto Benesa both former IBP Abra chapter presidents and Abra FLAG chairman and member, respectively, who in the same month of April this year "were arrested by the military, charged with subversion, and presently confined at the Constabulary stockade in Bangued, Abra, Since 1979, they were the only human rights lawyers in Bangued, Abra. Since their arrest, there are no lawyers anymore handling such cases." 7 Between the two of them, they reportedly handled a total of about 120 subversion cases and "not one of their clients was even convicted due to 'lack of evidence.' " 8 The petition quoted respondent general's press statement issued on May 10th that ... the arrest of Ilagan, 'who had lately been engaged in human rights lawyering for suspected persons detained for subversion, rebellion and other charges' was 'long overdue' (Business Day, May 13, 1985, p. 11)" 9 and the exertion of pressure upon other Davao human rights lawyers in this wise: The tension mounted when another lawyer Silvestre Bello III, BAYAN national organizing committee member, got word from Jesus Dureza President of the

Integrated Bar of the Philippines, Davao del Sur chapter, that Estares was 'inviting' Bello to Camp Catitipan. Bello, in an earlier interview, said they were assured by Estares that in case they would be slapped with a PDA, they would not be picked up like what happened to Ilagan but instead just 'be invited' to Camp Catitipan as in Arellano case. Estares, on the other hard, told Business Day they were just 'inviting' Bello to 'visit his friends,' PC-INP regional commander, Dionisio Tan- Gatue also told newsmen in a phone interview that he was just inviting Bello to visit him. TanGatue however, declined to comment on whether or not there will be more arrests in the next few days. 'Just wait and see,' he said. (Business Day, May 13, 1985) "The aforesaid report has been confirmed by the IBP Davao Chapter."
10

The petition, noting that "(T)hese trends are ominous for members of the Bar especially those who are engaged inpro bono publico work who have incurred the ire of the military," 11 invoked the writ of habeas corpus as the great writ of liberty on behalf of the three lawyers. IBP President Emeritus J.B.L. Reyes made this eloquent plea against this Damocles' sword wielded by the military in that its value is not that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the defense of anybody":
That is why, if Your Honors please, we have here all the representatives of the Bar organizations because they are all threatened under this method that is being adopted by the military, that anybody who thus ran against their Ideas of what a citizen should do, becomes ipso facto suspect and ipso facto rebel or a subversive. And that is the reason why we've come to this Court, because with all this publicity. Even if only 3 or 5 lawyers are arrested all the others will be afraid. If Your Honors will recall that we are arguing the constitutionality of this PDA, we happened to quote from the United States Supreme Court, that the value of the Sword of Damocles is not that it falls but that it hangs, and it hangs over every lawyer at the present time, engaged or not in the defense of anybody 12 How do we know how many more lawyers will be in the future arrested.

Or as then Associate (now Chief) Justice Makasiar in 1980 stressed before the Philconsa against the proposal then to return the administrative supervision of inferior courts from the Supreme Court to the Ministry of Justice: "The warning has been issued that a tyrant, who wants complete and absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy must be averted." 12-a Respondents' return made the startling charge that the three lawyers (all practitioners of long good standing since 1971, 1977 and 1976, family men and without any derogatory record) "have been arrested and detained because of evidence that they are members of the Communist Party of the Philippines or its partner, the National Democratic Front, and have been active in organizing mass actions intended to further the communist cause," and "(I)n truth, the PDA against the three lawyers was issued as early as January 25, 1985, shortly after the series ofwelgas conducted late in 1984. But, with the President's knowledge and concurrence, the military in Region 11 tried to withhold its implementation

precisely in the hope that the need for such action would pass, forestalling a possible misinterpretation of the government's motive in making the arrest. The situation in Southern Mindanao has, however, deteriorated compelling the government to act swiftly, arrest the communist leaders behind thewelga and stem the tide of mass disturbance sweeping the area." 13 Ironically, while the state attorneys specifically pleaded that there is evidence that the three lawyers are communists, yet they invoke the Garcia Padilla ruling that "the Court may not inquire into it" 14 and that "because of the suspension of the writ of habeas corpus, the Courts have no authority to look into this evidence" 15 which led then Chief Justice Fernando to ask in exasperation: CHIEF JUSTICE
Q But what is the connection between them? You can always, your pleading is quite extensive, but until now according to you there is evidence but you are not at liberty to reveal that evidence. What good will it do to the Court then? What is their [the lawyers] connection with the acts that are rebellious in character or subversive? That perhaps will give the possibility [for] their 16 continued detention?

Still, at the hearing of May 23rd, it was clearly stressed that notwithstanding that the PDA had been secured since January 25, 1985 by respondent general, supposedly "on the basis of evidence and verified reports," when questioned why no information had been filed against them "considering that as early as January 25, 1985 there had been [allegedly] evidence that they had committed subversion, " respondents assured the Court that the detained lawyers would be "entitled to a hearing ... when the time comes that we file charges [which] will be decided by the prosecuting officer of the government" (upon interpellation of Mr. Justice Relova and reply of Assistant Solicitor General Eduardo G. Montenegro). 17 Respondents' counsel had at the hearing claimed that "these three lawyers companeros of mine are active members of the Communist Party of the Philippines, [as] witnesses we have captured NPA's." He said that these statements given by former NPA's were shown him by military officers, but when questioned as to whether these states were "newly prepared also or long existing, " he was specifically warned against swallowing hook, line and sinker" the assertions of such professional witnessesand of the imperative necessity of conducting an independent investigation, thus: JUSTICE CUEVAS: Q What (did) your evidence consist of ? ASST. SOLGEN: A Statements given by former members of the New People Army in Davao Your Honor, there are NPA's who surrendered and then subsequently . . . JUSTICE CUEVAS: Q And these evidences were in your possession long prior to the arrest and detention of these 3 lawyers?

ASST. SOLGEN: A In our possession, Your Honor no, sir, because I saw them only when we were preparing the return, Your Honor. JUSTICE CUEVAS: Q From whom did they come from, if you know. ASST. SOLGEN: A I was shown that by these Military Officers. JUSTICE CUEVAS: Q Newly prepared also or long existing? ASST. SOLGEN: A Your Honor please, I . . . . JUSTICE CUEVAS: Q You answer positively because I'll ask them, when they were turned over to you were they newly prepared also? When were they prepared? ASST. SOLGEN: A I do not remember the date now but I was reading it. Anyway, Your Honor, the reason why we did not attach this to our return is this, that most of those . . . . JUSTICE CUEVAS: Q That is very very material, simply because there is rebellion in the count I do not think it warrants the picking up of anybody? ASST. SOLGEN: A Yes, Your honor. JUSTICE CUEVAS: Q That is following up under your theory?

ASST. SOLGEN. A Yes, Your Honor, because the surrendered NPA's who gave those statements, at least 3 of them, have not yet been surfaced by the Government. Their Identity are still not to be divulged because the Military is not through yet in its investigation with respect to these people. So they are not to be mentioned. JUSTICE CUEVAS: Q My theory because I had been a Fiscal also, Mr. Assistant Solicitor General as you know, there are people who are, who had the appetite of giving any kind of affidavit. In fact, I had prosecuted an accused who is even willing to testify that he witnessed the shooting of Rizal in Luneta? ASST. SOLGEN: A That may be true, Your Honor. JUSTICE CUEVAS: Q You should not swallow 'hook, line, and sinker,' that is our apprehension in particular? ASST. SOLGEN: A Yes, Your Honor. May I continue, Your Honor. Now, Atty. Ilagan, in particular JUSTICE TEEHANKEE: Q This is an appropriate time I believe, what Justice Cuevas has mentioned was that, in other words, you brought these affidavits? ASST. SOLGEN: A Yes, Your Honor. JUSTICE TEEHANKEE: Q But you have to check them out? ASST. SOLGEN: A Yes, Your Honor.

JUSTICE TEEHANKEE: Q Check the background of these people and check out their assertions as against an independent investigation. As if they say on such and such a date Attorney Ilagan was in the mountains; you have to check that out, you can't just swallow on its own. There areso many of these professional witnesses? ASST. SOLGEN: A That may be true, Your Honor, there are professional witnesses, Your Honor. JUSTICE TEEHANKEE: Q There are, you know that and we all know that. ASST. SOLGEN: A Yes there are. Now, may I continue, Your Honor. CHIEF JUSTICE FERNANDO:
A Yes, but please you must go directly.
18

CHIEF JUSTICE FERNANDO: Q We've heard that before but again [what is] the connection of these people? SOLICITOR ABAD: A Well, the position of the Military is that .... CHIEF JUSTICE FERNANDO: Q They are human rights lawyers, they have been defending several persons accused of crimes of . . . . and they had been doing as members of the Bar. Now they are picked up and apprehended, at least justify that. SOLICITOR ABAD: A Well, I appreciate that, Your Honor please, anyone belonging to the middle forces who campaign in the open to organize the populace for support to the revolution must really have some front, because when it comes to a revolution .

CHIEF JUSTICE FERNANDO: Q But again you say they are the front of these people, where is the evidence to substantiate this conclusion? They are all naked assertions thus far? JUSTICE TEEHANKEE: Q Mr. Counsel, your theory seems that anybody who joins in a protest or a demonstration against grievances and abuses as perceived by them is a . . . . joining this middle force is a communist already? SOLICITOR ABAD:
A That is certainly not our theory, Your Honor, that is not the theory of the 19 Government.

After the hearing, and as already indicated, the Court ordered the immediate release of the three lawyers-detainees on recognizance of their principal counsel per its Resolution of May 23rd, which it expressly ordered to be "immediately executory. " But the camp commander at Camp Bagong Diwa did not honor the Court's release order, saying that "it had to be verified from higher authorities." So, petitioners filed their manifestation and motionon May 24th, reporting the non-release and praying that the immediate release of the three lawyers on recognizance of their principal counsel be effected in the premises of the Supreme Court, as had been done in previous past cases. On the next day thereafter, May 25th, respondents filed an urgent motion for reconsideration, invoking anew the Garcia-Padilla ruling 20 that the courts could not entertain petitions for habeas corpus of persons detained under Presidential Commitment Orders (now supplanted by PDA's), Without awaiting this Court's action on their aforesaid motion for reconsideration , respondents, particularly respondent general, somehow got th City Fiscal of Davao City to precipitately file on May 27, 1985, without any preliminary investigation, an information against the three petitioners' lawyers for the capital crime of rebellion with the Regional Trial Court of Davao, Branch X. 21 The said trial court grossly disregarding the deference that all inferior courts should accord this Court as the highest court of the land (since the military's equally gross disregard of this Court's May 23rd order for the release of petitioners-lawyers was a matter of public notice, having been prominently reported in all national and local newspapers) just as precipitately issued a warrant of arrest with no bail against said petitioners-lawyers. Respondents then filed on May 28th their Urgent Manifestation/Motion, annexing copies of the information and warrant of arrest, praying for the dismissal of the habeas corpus petition at bar on the ground that it has become moot and academic. In their required comment on the state's action, petitioners' lawyers stated that the fiscal misinvoked section 7, Rule 112 which allows the filing of an information without preliminary

investigation "when the person is lawfully arrested without a warrant," i.e. in flagrante delicto (which is not the case here). They asserted petitioners' constitutional right to due process and the right to a preliminary investigation as granted by statute and expressly assured to them in open court at the May 23rd hearing. They denounced the "cabal among military authorities and the prosecution arm of the government" with the contumacious cooperation of the trial court to deprive them of due process and to circumvent this Court's release order, as follows: 3.1. Preliminary investigation is instituted to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of public trial, and also to protect the state from useless and expensive trials. The right to preliminary investigation is a statutory grant and to withhold it would be to transgress constitutional due process. Salonga v. Hon. Ernani Cruz Pao, G.R. No. 59254, February 18, 1985, citing Trocio v. Manta, 118 SCRA 241; Hashim v. Boncam, 71 Phil. 216; People v. Oandasa, 25 SCRA 277. 3.2. Petitioners having been deprived of their constitutional right to due process by the Fiscal of Davao, therefore, the information for rebellion filed against them is void. 3.3. The information filed by the Fiscal of Davao being void, the Regional Trial Court of Davao has acquired no jurisdiction over the case of rebellion filed against petitioner. Therefore, all orders, warrants, processes, and issuances of the Court relative to the case, including the warrant for their arrest, are issued without authority and therefore null and void. 3.4. What becomes evident in the face of these developments is a cabal among military authorities and the prosecution arm of the government to bend and short circuit rules in order to deprive petitioners of their right to due process guaranteed by the Constitution, and to circumvent the order of this Court for their release. It is deplorable that the Regional Trial Court of Davao has lent itself to this conspiracy to undermine the Constitution and the authority of this Court.
3.5. All proceedings and orders in connection with the case of rebellion against petitioners being of no legal effect these cannot have the consequence of rendering the 22 case moot and academic.

II. The merits of the petition.I have gone to great lengths to restate hereinabove the antecedent facts as established by the pleadings and annexes of record and the hearing held by the Court on May 23rd. I submit that on the basis of these established facts, the "sacred constitutional rights [and] also the right to 'due process' which is fundamental fairness " as imperatively stressed by the majority decision in the recent case of Galman vs. Hon. P.J. Pamaran 23 have been grossly denied the three lawyers detainees. This Court's "immediately executory"release order of May 23rd (issued over four months ago) should be forthwith honored and complied with. Far from having rendered the petition as moot and academic, all the railroaded proceedings and orders charging the three

petitioners-lawyers with instant rebellion in gross disregard of the pendency of this case and of the assurance given in open court that the petitioners-lawyers would be entitled to a hearing and a preliminary investigation in obedience to the constitutional mandate that "no person shall be deprived of life, liberty or property without due process of law " and "no person shall be held to answer for a criminal offense without due process of law, " 24should be declared null and void. They were patently void, having been issued without jurisdiction under the well-settled rule that "a violation of a constitutional right divests the court of jurisdiction; and as a consequence its judgment [or order] is null and void and confers no rights. " 25 At the very least, all proceedings in the instant rebellion case before the Davao trial court should be suspended and enjoined until the petitioners-lawyers are granted their right to a preliminary investigation and the opportunity to confront their accusers and disprove the charges; meanwhile, it is but part of due process that they be set free as ordered by the Court and be enabled to prepare their defense. The petition under the great writ of habeas corpus to set them at liberty should accordingly be granted for the following fundamental reasons and considerations: 1. Basic Right to Due Process.The Bill of Rights expressly mandates that ... no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized ." 26This plainly means that generally no person may be held to answer for a criminal offense without a preliminary investigation. The right to a preliminary investigation is statutorily granted for serious offenses and to deny it violates the right to due process guaranteed by the Constitution. 27 Preliminary investigation has been instituted precisely to secure the innocent against hasty, malicious and oppressive prosecution. Moreover, the instant rebellion case filed against the petitioners manifestly falls under three recognized exceptions to the general rule that criminal prosecution may not be blocked by court prohibition or injunction, namely, "l. for the orderly administration of justice; 2. to prevent the use of the strong arm of the law in an oppressive and vindictive manner; ...; and 4. to afford adequate protection to constitutional rights. .... 28 2. Petitioners-lawyers denied due process.The blitzkrieg filing of precipitate, vindictive and oppressive charges against petitioners-lawyers for the capital crime of rebellion without hearing and preliminary investigation deprived them their right to due process and the rudimentary requirements of fair play. As the majority, quoting former Chief Justice Enrique M. Fernando, emphasized in the recent case of Galman vs. Pamaran, supra, 29 "due process ... is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly, it has been Identified as freedom from arbitrariness. It is the embodiment of the sporting Idea of fair play ... It exacts fealty 'to those strivings for justice' and judges the act of officialdom of whatever branch 'in the light of reason drawn from considerations of fairness that reflect (democratic) traditions of legal and political thought.' ... It is not a narrow or 'technical conception with fixed content unrelated to time, place and circumstances,' ... decisions based on such a clause requiring a 'close and

perceptive inquiry into fundamental principles of our society.' ... Questions of due process are not to be treated narrowly or pedantically in slavery to form or phrases. .... " 29-a 3. Right to preliminary investigation.-The May 23rd hearing brought out the importance of preliminary investigation to prevent hasty and baseless prosecution, since respondents could not cite concrete evidence of specific criminal acts committed by respondents. Respondent general secured the PDA on January 25, 1985 on the basis of affidavits of surrendered NPA's supposedly incriminating the petitioners, which was issued "on the basis of evidence and verified reports that the (petitioners-lawyers) have committed subversion and/or acts inimical to public safety, national security and public order." 30 Respondents would cavalierly tag the petitioners-lawyers as having gone "beyond purview of lawyering, but even to the extent of attending CPP and NPA rites, and using their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives, "as per the affidavit executed under date of January 22, 1985 by the Davao intelligence chief Lt. Col. Nelson J. Estares. 31 As pointed out by petitioners in their verified traverse, this affidavit has no probative value. It is not based on the affiant's direct knowledge but offers hearsay, on his alleged interviews with surrendered NPA's and "to the best of [this] knowledge and ability." It would have been a simple matter for the alleged witnesses to have executed their own affidavits. In turn, petitioners have categorically denied that they are members of the CCP or NDF. Attys. Ilagan and Arellano said in open court that they are chairman and secretary-general, respectively, of BAYAN-Mindanao, affiliated with the national organization of BAYAN (Bagong Alyansang Makabayan) with former Senators Lorenzo M. Taada and Ambrosio Padilla as chairman and vice-chairman, respectively, and among whose national leaders is former Manila Times publisher Joaquin "Chino" P. Roces. But strangely enough, while the aforesaid documents were executed in January, 1985 to secure the PDA for subversion against petitioners, the instant charge filed without hearing by the fiscal apparently based on the same affidavits is now for rebellion which would involve the petitioners rising in arms. The whole point is that petitioners' lawyers have squarely presented to this case the undeniable and undisputed facts that they have been denied their right to preliminary investigation and to show the utter falsity of the charge of instant rebellion against them. Such right was assured them in open court by the State's attorneys. It is this Court which must grant petitioners this right, and uphold their right to due process. The obiter dictum cited by the majority decision from the case of Medina vs. Orozco 32 that "the proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court" has no application. There, this Court found that not only was a preliminary investigation made, but also a subsequent reinvestigation upon his motion, after which the case against the accused proceeded to trial. 4. Professional witnesses of military not checked out.-As shown above, supra, 33 as admitted by the State attorneys, there are so many professional witnesses presented by the military in such cases, whose statements should not be "swallowed hook, line and sinker." The ex-parte affidavits of the alleged surrendered NPAs could be checked out as against their background and an independent investigation only in a preliminary investigation. Such affidavits and statements have been found to be completely worthless in other cases. In the habeas corpus case of Aristedes Sarmiento, he and his wife were charged with subversion on March 31, 1983, as ranking leaders of the NPA, after they had been "invited" and detained at the military camp in Gumaca, Quezon on October 9, 1982. After the prosecution rested its case, the trial court granted the defense' motion for

dismissal of the charges for utter "worthlessness of evidence." The trial court ruled that "(I)ndeed, there is nothing that the Armed Forces of the Philippines or any of the law enforcement agencies of the Government could offer to prove any connection of the Sarmiento couple with any subversive organization, even with the New People's Army, if ever it is to be considered such, and much more as leaders thereof." This led to an apparently unheeded call from the now Chief Justice that "The military establishment should inquire into whether the President was deceived into issuing the PCO and who initiated the arrest of the couple without supporting evidence." In petitioners' verified traverse, they point out that respondents' "star witness" against petitioners is one Calixto Alegado III, an alleged former NPA who is now a member of the Philippine Constabulary. They state that Calixto Alegado Ill is precisely one of those professional witnesses unworthy of credence who has testified in a number of national security cases and who should be checked out in an independent investigation as assured by the State attorneys at the May 23rd hearing, thus: "In Criminal Case No. 9198 before the Regional Trial Court of Davao entitled People of the Philippines v. Carlito Gaspar, Alegado testified that he witnessed the accused therein giving lectures for the CPP/NPA at dates when the accused Carlito Gaspar was either in Manila or out of the country, more specifically in Australia and Latin America. On the basis of this affiant's testimony together with other supposed former CPP/NPA members, the Regional Trial Court found Alegado not worthy of belief and acquitted Gaspar. It is significant to point out here that the counsel of Carlito Gaspar in that case is petitioner Atty. Laurente Ilagan." 34 5. Protective mantle of this Court.The unlawful arrest and detention of the petitionerslawyers has completely uprooted their lives. This Court must extend them its protective mantle as officers of the courts, because of the strong indications, supra, 35 of "ominous trends" for lawyers "who are engaged in pro bono publico work who have incurred the ire of the military," such as in the case of Abra, where there are no more lawyers handling subversion cases because the only two human rights lawyers handling such cases have been charged with subversion and locked up in the stockade. As formulated by Justice J.B.L. Reyes in response to a question of Mr. Justice Gutierrez why the lawyers were picked out for criminal charges (when there were non-lawyers who also led the welga), "(Y)es, precisely they pick the lawyers because I suppose they figure out that in fact the lawyers are actually social leaders in their respective communities. That is why, if Your Honors please, we are pleading this Court for the prosecution because after all the lawyers are officers of the Court and if the Court will not protect them, who will? Certainly not the military. We certainly hope that a lawyer will not, in the long run, will not be asking the NPA for protection, because nobody else wants to protect them." 36 6. People's right of assembly.-The people's right to freedom of expression and to peaceably assemble and petition the government for redress of grievances are fundamental constitutional rights. Mass demonstrations popularly termed as welgang bayan constitute a legitimate exercise of these basic constitutional rights. Indeed, as the Court stressed in Jose B. L. Reyes vs. Ramon Bagatsing 37 "The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest." The Court therein reminded the police (and the military for that matter) of their duty to extend protection to the demonstrators/participants "staying at a discreet distance, but ever ready and alert to

perform their duty." It further admonished that should any disorderly conduct or incidents occur, whether provoked or otherwise, such incidents of disorderly conduct by individual members of a crowd should not be seized "as an excuse to characterize the assembly as seditious and tumultuous rising against the authorities" and render illusory the right of peaceable assembly. 38 . The military must overcome their allergy if not aversion to such welgas. Acting AFP Chief of Staff Lt. Gen. Fidel V. Ramos recently, correctly urged those involved in law enforcement and criminal justice system to "keep themselves up-to-date on the [changing] law and jurisprudence and the intricacies of implementation" adding that "as law enforcers they must be convinced by heart that they enforce the law and never violate it. 39 Petitioners candidly state in their verified traverse that "(T)he possibility that the Communist Party of the Philippines and the National Democratic Front may have participated in or used the events for their own purposes may be assumed for purposes of argument. It is not fair inference from this assumption that all those who participated in any significant degree in the strikes and the activities held in connection therewith are members of the Communist Party of the Philippines or the National Democratic Front," 40 but they rightfully submit that "(T)o conclude that persons who participate in such mass activities are communists or subversives and to restrain them in their freedom as a consequence is the worst form of witch-hunting violative of all principles of fair play and due process." 41 In the Philippine Blooming Mills case 42 this Court set aside the industrial court's decision dismissing from employment the workers' labor union's eight officers for having led and carried out a "temporary stoppage of work" to hold a mass demonstration at Malacaang of all the workers on March 4, 1969 in protest against alleged abuses of the Pasig police. It held that such dismissal was violative of the workers' legitimate exercise of their constitutional rights of free expression, peaceable assembly and petition for redress of grievance, thus: ... Recognition and protection of such freedoms are imperative on all public officers including the courts (as well as private citizens and corporations ... when even a law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is no time limit to the exercise of these freedoms. The right to enjoy them is not exhausted by the delivery of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity, to be invoked and exercised when exigent and expedient whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. Otherwise, these guarantees in the Bill of Rights would be vitiated by a rule on procedure prescribing the period for appeal. The battle then would be reduced to a race for time. 7. Preservation of liberties and motives.Good faith must be presumed as well on the part of respondents as of petitioners-lawyers. The good motive but misplaced overzealousness of the military, particularly as headed by respondent general in the Davao area, may be noted, obsessed as they are with keeping peace and order. But it seems appropriate and

timely to cite the pointed reminder of the late Mr. Justice William Douglas as reproduced in the PBM case, as follows: The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill-good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty. ... The Motives of these men are often commendable. What we must remember, however, is thatpreservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another larger surrender. The battle over the Bill of Rights is a never ending one. ... The liberties of any person are the liberties of all of us.
... In short, the liberties of none are safe unless the liberties of all are protected.
43

The record of the May 23rd hearing highlights the imperative importance of the injunction that no matter how worthy the motive may be, the authorities, civilian or military, should not suppress the people's liberties, and push the aggrieved citizen in despair towards the NPA or the communists; and respect their constitutional rights as otherwise there would be no difference as against the outlaws or rebels. For as Brandeis called it, "Crime is contagious. If the government becomes the lawbreaker it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy." The record again underscores the utter lack of evidence to support the unlawful arrest and detention of the three petitionerslawyers, thus: JUSTICE TEEHANKEE: Q All right, I will ask one more question on that. Since it was organized, this Mindanao Chapter, in April you already had a PDA in January. Did you not or the Military exercise strict surveillance daily over the activities of these people? So that you can catch them with the goods? SOLICITOR ABAD A Well, it is not that simple, if Your Honor please, because rebellion is not a crime committed (with) not exactly with bouncing checks or similar crimes. JUSTICE TEEHANKEE Q True, that's very true, but ...?

SOLICITOR ABAD A So precisely a good rebel is one who is not caught, he was able to lose himself in the populace. How can we expect let's say a member of a front organization of the NPA will carry an Id, if Your Honor please. JUSTICE TEEHANKEE Q But you have to look into the record of the individual. SOLICITOR ABAD A I think they have, Your Honor. JUSTICE TEEHANKEE Q You have to look into the record of these individuals here, lawyers, members of the Bar of good standing, without any derogatory record, is it within the ordinary course of human conduct that they would prostitute their profession, pervert it and serve as fronts? SOLICITOR ABAD A Horacio Morales, Your Honor, was a Government Executive, in the same manner as Atty. Ocampo was a good journalist, but they admitted they have turned to the communist side. We cannot say that a background of a man is sufficient guarantee that he is not going to join the rebellion. JUSTICE TEEHANKEE Q As far as Morales is concerned he gave up on reforms, he was desperate; that is why he says there is no other way... SOLICITOR ABAD A Well, that's what I mean, if Your Honor please, an individual supplace (sic) society, the old society ... JUSTICE TEEHANKEE Q Society (should) not push the aggrieved citizen towards the NPA or the communist party as a last resort. And therefore, we must observe their Constitutional rights. Otherwise, there is no difference?

SOLICITOR ABAD A There were 3 million people who were unable to use the streets of Davao, if Your Honor please, its their constitutional rights to travel to bring their sick to the hospitals and were violated by these ... JUSTICE MAKASIAR Q Compaero, your position is that history is replete with examples of traitors and quislings from high society or high Government circles. But the question is, while you affirm the fact that the communist is not necessarily open or overt, he is usually engaged in covert activities. Now what are the examples of these covert activities of these people? What is your evidence? SOLICITOR ABAD A Well, I read from a very authoritative document of the Communist Party of the Philippines JUSTICE TEEHANKEE Q That's begging the question? JUSTICE MAKASIAR Q And they deny The communist party they accept membership... the Alyansa? SOLICITOR ABAD A Financial support, telling over the populace into supporting the rebellion; driving them away from the Government: giving financial support; harboring them in their homes. While these are not armed assistance given to the rebel, if Your Honor please, but its the duty also of the government to ... JUSTICE MAKASIAR Q ... the various dates of harboring them in their homes; the financial contributions made by them on such and such a date, how much? Those are the particulars to support the conclusion that they had contributed, they were harboring them? SOLICITOR ABAD

A Well, as I said we have the evidence, the only problem is we are not prepared to produce 43 now the evidence. -a

Indeed, in their Urgent Motion for Reconsideration of the Court's May 23rd release order, respondents, "having obtained clearance for the declassification of the needed materials" submitted their "evidence, " consisting of hearsay military reports (rather than the direct affidavits of credible witnesses) and the affidavit of a discredited and perjured professional witness, an alleged NPA, now a member of the Philippine Constabulary, supra. 43-b No concrete evidence whatever has been submitted therein against petitionerslawyers, other than to recklessly red brush their legitimate organization (BAYAN-Mindanao) as communist-led or infiltrated front organizations and to characterize the series of welgas or strikes in Mindanao as implementation of the NDF program of activities to organize and mobilize the "middle forces" of society, supra. 43-c 8. Basic concepts and principles of freedom-The PBM case, citing numerous precedents, restated basic concepts and principles which, to my mind, underlie and are determinative of the issues at bar, as follows:
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is thecentral core as well as the cardinal article of faith of our civilization. The inviolable character of man as an individual must be 'protected to the 44 largest possible extent in his thoughts and in his beliefs as the citadel of his person. (2) The Bill of Rights is designed to preserve the Ideals of liberty, equality and security 'against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with 45 general principles. In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw 'certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be 46 submitted to a vote; they depend on the outcome of no elections. Laski proclaimed that 'the happiness of the individual not the well-being of the State, was the criterion on by which its behaviour was to be judged. His interests, not its power, set the limits to the 47 authority it was entitled to exercise. (3) The freedoms of expression and of assembly as well as the right to petition are included among the immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the Ideas that we abhor or hate more than the Ideas we cherish; or as Socrates insinuated, not only to protect the minority who want to 48 talk, but also to benefit the majority who refuse to listen. And as Justice Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are 49 not safe unless the liberties of all are protected.

(4) The rights of free expression, free assembly and petition, are not only civil rights but also political rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment. Thru these freedoms the citizens can participate not merely in the periodic establishment of the government through their suffrage but also in the administration of public affairs as well as in the discipline of abusive public officers. The citizen is

accorded these rights so that he can appeal to the appropriate governmental officers or agencies for redress and protection as well as for the imposition of the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over 50 property rights is recognized. Because these freedoms are 'delicate and vulnerable, as well as supremely precious in our society' and the 'threat of sanctions may deter their exercise almost as potently as the actual application of sanctions,' they 'need breathing 51 space to survive,' permitting government regulation only 'with narrow specificity.

Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities, of the influential and powerful and of oligarchs political economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position as they are essential to the preservation and vitality of our civil and 52 political institutions; and such priority 'gives these liberties a sanctity and a sanction not 53 permitting dubious intrusions.

xxx xxx xxx

In seeking sanctuary behind their freedom of expression as well as their right of assembly and of petition against alleged persecution of local officialdom, the employees and laborers of herein private respondent firm were fighting for their very survival, utilizing only the weapons afforded them, by the Constitution-the untrammelled enjoyment of their basic human rights. ... Material loss can be repaired or adequately compensated. The debasement of the human being-broken in morale and brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is like 54 rubbing salt on bruised tissues.

9. The express teaching of the Salonga case.The express teaching on freedom of expression, based on numerous precedents, of this Court's unanimous decision (11 members with 3 abstentions) in the case of Salonga vs. Pao 55 should dispel the apparent misconception on the part of the military, us well as certain government prosecutors, that militant protests and demonstrations are seditious and subversive of the government . This Court set forth therein guiding and controlling constitutional principles and precepts governing constitutionally protected spheres and areas reserved by the Bill of Rights for the individual "where even the awesome powers of government may not enter at will," as follows: "... if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate;" that " freedom of expression is a 'preferred' right and therefore stands on a higher level than substantive economic or other liberties;" that "this must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom. Protection is especially mandated for political discussions . This Court is particularly concerned when allegations are made that restraints have been

imposed upon mere criticisms of government and public officials. Political discussion is essential to the ascertainment of political truth. It cannot be the basis of criminal indictments;" that there must be tolerance of political hyperbole since "debate on public issues should be uninhibited, robust and wide open and it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials;" that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action;" that "political discussion even among those opposed to the present administration is within the protective clause of freedom of speech and expression. The same cannot be construed as subversive activities per se or as evidence of membership in a subversive organization" in the absence of proof that "such discussion was in furtherance of any plan to overthrow the government through illegal means, " and that "the judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible evidence might later turn up during trial for this would be a flagrant violation of a basic right which the courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and not denigrating constitutional rights. So it has been before. It should continue to be so." 10. Peaceful and violent welgas.The military and the police but adhere to the aforecited basic democratic concepts and principles and recognize the people's constitutional right of assembly, protest and petition for redress of grievances and accordingly exercise forbearance and understanding, then the welgas will not and cannot erupt in violence. As emphasized in the PBM case, there is no time limit in the exercise of these basic freedoms of free expression, peaceable assembly and petition for redress of grievances. The right to enjoy them is not exhausted "by . . . . the staging of one demonstration." It is a continuing immunity, to be exercised whenever there are errors to be rectified, abuses to be denounced, inhumanities to be condemned. This is borne out by the numerous demonstrations, rallies and welgas in Manila, Bataan and many other provinces. The Welgang bayan in Bataan against, the nuclear plant which paralyzed the whole of the province for three days last June were carried out peacefully without any violence, despite certain critical moments when the provincial commander ordered his forces to advance thru a blockade manned by some 4,000 people. He later withdrew his orders after a dialogue with the protestors. The behaviour of both the military and the demonstrators merited commendations from all sectors. The President himself was quoted as saying that "the official policy of maximum tolerance in dealing with mass demonstrations paid off during the welgang Bayan in Bataan." 56 In this case, the May 2-3, 1985 welgang bayan which incurred the ire and displeasure of the military was carried out without any ugly incidents. But the aggressiveness and intolerance of the military and CHDF forces inEscalante, Negros Occidental turned the welgang bayan there into a bloodbath last September 20th. Some thirty demonstrators, including women, were reported killed when government troops who were supposed to keep order during the rally opened fire at the massed crowd when some troublemakers reportedly tried to snatch their firearms. As observed in one editorial, "once government soldiers or police open fire on a rally crowd, the result would be a virtual massacre for the enforcers are better armed." 57 "Indeed, the use of combat-ready and trigger-happy troops trained only to shootto-kill without any training in crowd control of demonstrators or rallyists should be restudied.

As stated in my separate opinion in Hildawa vs. Minister of Defense. 58 "The Supreme Court stands as the guarantor of the constitutional and human rights of all persons within its jurisdiction and cannot abdicate its basic role under the Constitution that these rights be respected and enforced. The spirit and letter of the Constitution negates as contrary to the basic precepts of human rights and freedom that a person's life be snuffedon out without due process in a split second even if he is caught in flagrante delicto-unless it was called for as an act of self-defense by the law agents using reasonable means to prevent or repel an unlawful aggression on the part of the deceased." 11. The Stale PDA.-Iwill not deal here with the serious question raised by petitioners as to the validity of the PDA issued by the President under date of January 25, 1985 for the arrest and detention of the three petitioners-lawyers for having "committed subversion and/or acts inimical to public safety, national security and public order." This question is better resolved in the separate case filed by the Integrated Bar of the Philippines for the declaration of unconstitutionality of the Presidential Decrees authorizing, among others, the issuance by the President of PDA's without the constitutional requirement that any officer issuing a warrant of arrest must personally examine the complainant and the witnesses he may present. 59 Suffice it to state that the PDA against petitioners was already inoperative and stale. It was issued on January 25, 1985. As respondent general himself states in the return, the military did not see any need to enforce it until after almost four months later on May 10 to 13 of this year. What is incomprehensible is that no copy certified or plain of the PDA could be shown to the petitioners upon their arrest, contrary to existing rules and instructions. A xerox copy of the PDA was first seen by them only with the filing of the respondents' return, in this case on last May 23rd. Be that as it may, the PDA should be held to be inoperative and ineffectual. The facts and records as hereinabove stated patently show that the President was misled into precipitately issuing the same: A. By the President's own statement, he had declared that "he would issue the controversial Preventive Detention Action (PDA) orders only when national security would require it and that there is no present need for him to do it."60 The PDA was issued on January 25, 1985. Under the implementing rules, it should have been served within forty-eight (48) hours since it covered persons outside Metro Manila (in Metro Manila, the prescribed period of service is twenty-four [24] hours). The respondent general's own admission that there was no need to serve it until after almost four months later shows that there was no necessity for the peremptory issuance of the PDA last January 25th. B. The issuance of the PDA against the three petitioners lawyers clearly do not fall within the two exceptions to the general rule provided in section I of P.D. 1877, as amended, that all cases involving national security offenses "shall be referred to the provincial or city fiscal or to the proper court for preliminary examination or investigation in accordance with existing laws. " The two exceptions provided in section 2 of the said P.D. are as follows: SEC. 2. Only upon proper warrant issued by the Court or other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and his witnesses, shall the person or persons charged with the above-mentioned crimes be arrested and

detained;Provided, however, that should a military commander or the head of a law enforcement agency ascertain that the person or persons to be arrested has/have committed, is/are actually committing, or is/are about to commit the above-mentioned crimes, or would probably escape or commit further acts which would endanger public order and safety as well as the stability of the state before proper warrant could be obtained, the said military commander or the head of law enforcement agency may apply to the President of the Philippines for a preventive detention action against the person or persons ascertained to be participants in the commission of the crimes referred to in Section I hereof, under the following circumstances: (a) When resort to judicial processes is not possible or expedient without endangering public order and safety; (b) When in the judgement of the President of the Philippines to apply for a judicial warrant may prejudice peace and order and the safety of the state like when it may jeopardize the continued covert intelligence counter insurgency operations of the Government, or endanger the lives of intelligence and undercover agents whose Identities would be revealed by the evidence against the person or persons covered by a preventive detention action. There is no question here of judicial process not being possible or expedient . It is obvious from the facts of record that it would be absurd to say that the. PDA could fall under the second exception that to apply for a judicial warrant would prejudice public order and the safety of the state. The mere gap of almost four months between its issuance on January 25th and its actual service on May 10-12 this year speaks for itself Furthermore, as succinctly stated by petitioners in their verified traverse, "(A)s members of this Court pointed out in the hearing of May 23, 1985, the alleged PDA was issued as early as January 25, 1985. Petitioners were not hiding. They were regularly discharging their functions as lawyers, including visiting their clients in military camps. There was more than ample time from the issuance of the alleged PDA up to the time when petitioners were actually arrested and detained for respondents to place them under close surveillance so that concrete, credible evidence of their supposed criminal activities and connection might be established 'to catch them with the goods' so to speak. With the manpower and the resources at the command of respondents, they have failed to produce that evidence." 61 Indeed, as the ponente, Mme. Justice Herrera, notes in her additional opinion, which failed to gain the majority's concurrence, "it is my view that individuals against whom PDAs have been issued should be furnished with the original or the duplicate original or a certified true copy issued by the official having official custody of the PDA, at the time of apprehension. Pursuant to the Rules and Regulations Implementing Presidential Decree No. 1877, as amended by Presidential Decree No. 1877-A, the PDAs should also be enforced within 24 hours in the Metro Manila area or within 48 hours outside Metro Manila, upon receipt by the unit concerned. In this case, although the record does not show such date of receipt, the fact is that the PDA was issued on January 25, 1985 but the detained attorneys were arrested only on May 10 and 13, 1985, respectively. The four-month gap can give room for doubt as to its authenticity and whether, in fact, the detained attorneys posed 'any appreciable danger to national security and public order.' " (Italics supplied)

12. Civilian Supremacy.Art II, section 8 of our Constitution's Declaration of Principles and State Policies states that "Civilian authority is at all times supreme over the military. " But the military here dragged its feet and refused to honor this Court's "immediately executory" release order of May 23rd. Without waiting for the resolution of its motion for reconsideration of the Court's release order, respondent general, who had secured the PDA, then filed the new charge of rebellion against petitioners and with the deplorable acquiescence of the city fiscal and the trial judge, the former filed the instant information for the capital crime of rebellion and the latter in tum issued the warrant of arrest without bail. Respondent general was quoted as saying that "The Supreme Court won in only one point. And that is, we had to file the the charges much sooner" 62 as if this Court were an adverse protagonist instead of the final arbiter and the third department of government vested by the Constitution with the judicial power to determine and adjudicate all justiciable disputes. The same general is quoted as replying in a letter of April 1, 1985 to Atty. Jesus G. Dureza, IBP Davao chapter (who was asking why detainees continue to languish in jail despite court decisions either releasing or acquitting them) that "To begin with, I believe it may be necessary to review our position on these cases (human rights cases). I express this need because, despite recent court decisions otherwise, I am morally convinced that some released suspected communist subversives are guilty." 63This Court's decisions and orders form part of the law of the land It is a sad day for civilian supremacy when the military do not feel bound by the verdict of the courts and would place themselves above the courts and require as a condition for executing its judgment that they be "morally convinced" by the judgment rendered. To allow such usurpation and denigration of the Court's power of judicial review is to subvert, if not destroy, the Constitution and the Rule of Law. The survival of a democratic society rests on the Rule of Law, which depends on the existence of an independent judiciary. In endorse and reproduce herein the impassioned appeal made by then Justice Makasiar in his address in 1980 before the Philconsa against the proposed return of the supervision of lower courts from the Supreme Court to the Ministry of Justice, supra, 64 as follows: On the rule of law rests the survival of a democratic state. But the rule of law depends on the existence of an independent judiciary. 'Those who (make the proposal), I hope, realize that the ill-effects of such a proposal will reach them and their children. Even at this late stage in our lives when we are about to fade from the scene, we cannot evade the tragic consequences of such a proposal; but those who will suffer more would be the succeeding generations-including the children of those proposing the subtle destruction of the foundations of the judicial system. In the evening of our lives, let us not emasculate one branch of the government that is the last sanctuary of our lives and our liberties-the judiciary. As an enduring legacy to the generations that will come after us, let us all continue to strengthen the Supreme Court and the entire judicial system.

The contemporary scene demonstrates once again that injustice breeds dissidence which seethes and finally explodes into a violent and bloody revolution. To all human beings, the denial of justice is a mortal assault on life itself. Where the human spirit is brutalized by abuses and inequities, the ultimate hope for liberation lies in the force of arms unless the courts can effectively enforce the rule of law. Our historical experience delineated the varied seeds of armed rebellion or insurrection with which all of you are familiar. The ruthless exploitation of peasants and laborers, the lust for and arrogance of power, unabated corruption, unequal application of the law. the prostitution of elections, despoliation of the national patrimony by a a favored few, as well as the monopoly and manipulation of the supply and distribution of economic goods essential to man's existence-all constitute the many facets of injustice that provide the dynamics of open defiance of the status quo. The warning has been issued that a tyrant, who wants complete and absolute control over the people, will first seduce and eliminate the lawyers and thereafter destroy the courts. This tragedy must be averted. To support any proposal that erodes the independence of the courts, abets subversion of the rule of law, undermines the stability of our democratic institutions, imperils the liberties of the individual, or gives aid and comfort to the enemies of the people-is akin to committing treason against the nation. " (Italics supplied) 13. The Supreme Court as guardian and final arbiter of the Constitution .The judiciary, as headed by the Supreme Court has neither the power of the sword nor the purse. Yet as the third great department of government, it is entrusted by the Constitution with the judicial power-the awesome power and task of determining disputes between litigants involving life, liberty and fortune and protecting the citizen against arbitrary or oppressive action of the State. The Supreme Court and all inferior courts are called upon by the Constitution "to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary [assisted by the bar] stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive as also transgression of its constitutional limitations by the legislature." 65 The Constitution is basically a charter of limitations of governmental power and enshrines a system of separation of powers and checks and balances under which no man is the law nor above the law. It ordains the weakest department, the Supreme Court, as the guardian and final arbiter of the Constitution. It postulates and requires a free and independent judiciary, sworn to defend and enforce the Constitution and the law without fear or favor. It mandates that civilian authority is at all times supreme over the military. Like His Holiness, the Pope, the Supreme Court has no battalions, tanks or guns to enforce its decisions. Its strength lies in that its verdicts would be obeyed by the sheer moral force and truth of its judgments for as long as the Court kept the faith and confidence reposed in it by the people through the Constitution to render justice and sustained their moral conviction that through

the Supreme Court, justice and the voice of reason and truth would prevail in the end. Under the Rule of Law, "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines " (Art. 8, Civil Code) and the Excutive and all its offices and agencies. and particularly the military, are called upon to execute the laws as so interpreted and adjudged by the courts and enforce obedience thereto. 65-a As restated by the late Justice Jose P. Laurel in the 1936 landmark case of Angara us. Electoral Commission, 66"The Constitution sets forth in no uncertain language the restrictions and limitations upon governmental powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if the Constitution had not provided for a mechanism by which to direct the course of government along constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights mere expressions of sentiment, and the principles of good government mere political apothegms. Certainly, the limitations and restrictions embodied in our Constitution are real as they should be in any living Constitution." Justice Laurel pointed out that in contrast to the United States Constitution, the Philippine Constitution as "a definition of the powers of government" placed upon the judiciary the great burden of "determining the nature, scope and extent of such powers" and stressed that "when the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other department ...but only asserts the solemn and sacred obligation entrusted to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which the instrument secures and guarantees to them." Let all bear ever in mind that " (I)n a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious If the Government becomes the lawbreaker it breeds contempt for the law it invites every man to become a law unto himself, it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. 67 14. Erroneous premises of the majority decision. A. The majority decision holds that under section 4, Rule 102 the writ of habeas corpus has served its purpose because of the judicial warrant of arrest issued by the Regional Trial Court. This is based on an erroneous premise that the trial court had such jurisdiction to issue the warrant of arrest, and that the denial of a preliminary investigation of petitionerslawyers was a mere informality or defect.As already emphasized hereinabove, the trial court was totally devoid and ousted of jurisdiction to issue a warrant of arrest because of the gross denial to petitioners-lawyers of their constitutional right to due process. B. The majority decision holds that the filing of the information without preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Rule 113, sec. 5 of the 1985 Rules on Criminal Procedure. 68 Again, this is erroneous premise. The fiscal misinvoked and misapplied the cited rules. The petitioners are not persons "lawfully arrested without a warrant. " The fiscal could not rely on the stale and inoperative PDA of January 25, 1985. Otherwise, the rules would be rendered nugatory, if all that was needed was to get a PDA

and then serve it at one's whim and caprice when the very issuance of the PDA is premised on its imperative urgency and necessity as declared by the President himself. The majority decision then relies on Rule 113, sec. 5 which authorizes arrests without warrant by a citizen or by a police officer who witnessed the arrestee in flagrante delicto, viz, in the act of committing the offense. Quite obviously, the arrest was not a citizen's arrest nor were they caught in flagrante delicto violating the law. In fact, this Court in promulgating the 1985 Rules on Criminal Procedure have tightened and made the rules more strict. Thus, the Rule now requires that an offense " has in fact just been committed. " This connotes immediacy in point of time and excludes cases under the old rule where an offense "has in fact been committed" no matter how long ago. Similarly, the arrestor must have "personal knowledge of facts indicating that the arrestee has committed it" (instead of just "reasonable ground to believe that the arrestee has committed it" under the old rule). Clearly, then, an information could not just be filed against the petitioners without due process and preliminary investigation. C. The majority decision's rationale that the Nolasco case invoked by petitioners is not applicable here since the trial court had granted bail to Nolasco for a number of non-capital offenses, whereas in this case petitioners are charged with the capital offense of rebellion and the trial court has not allowed bail. This is erroneously premised. As already emphasized above, the instant information for rebellion against petitioners is null and void for denial of due process. What remains is the PDA, just like in the Nolasco case. There, the trial court granted bail. Here, it is this Court that has granted bail in the form of its May 23rd "immediately executory" release order. It certainly would be judicial anathema that this Court ordered compliance with the bail order of the trial court in the Nolasco case and yet feel impotent to enforce its own "immediately executory" release order of the petitionerslawyers upon their counsel's recognizance. More so, when the petitioners are members of the Philippine Bar and officers of this Court. The irony of the situation can be thus depicted. Had this Court simply ordered the immediate enforcement without delay of its May 23rd order, by May 24th, the petitioners would have not been under detention. There would be no basis to claim that they were "lawfully arrested without warrant" and therefore could be instantly charged for the most heinous crimes without preliminary investigation. D. As stressed by the writer in German vs. Barangan, 69 "to require the citizen at every step to assert his rights and to go to court is to render illusory his rights. " Here, the flaunting and disregard of the Court's immediately executory May 23rd release order by not releasing the petitioners-lawyers so that it could be claimed that they fell under Rule 112, section 7 and considered as "lawfully arrested without warrant" wherein "the information may be filed by the ... fiscal without preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting officer or person" (which affidavit had long been executed since January, 1985 while the unlawful arrests were made on May 10-13 and in no way could be termed as in flagrante delicto would render illusory petitioners' right to due process and preliminary investigation. The majority decision should properly apply the case of Abejuela cited by it 70 that the trial court is called upon "not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. " Meanwhile, this Court's release order should be complied with without one moment's

delay. Respondents' filing two days later on May 25th of an "urgent motion for reconsideration" could in no way cause or justify suspension or non-compliance with this Court's release order. 15. Same standard in Galman case of not jeopardizing accused's constitutional rights should be applied. In the recent case of Galman vs. Pamaran, the majority held that "the only way to cure the law of its unconstitutional effects is to construe it in the manner as if IMMUNITY had in 'fact been offered [by the prosecution] ... (hence) the testimonies compelled thereby are deemed immunized under Section 5 of the same law. The applicability of the immunity granted by P.D. 1886 cannot be made to depend on a claim of the privilege against self- incrimination which the same law practically strips away from the witness." The same standard and concern of not placing the accused "in jeopardy of their constitutional rights" through denial of due process and their right to preliminary investigation should be applied here. The only way is to construe it in the manner as if this Court's release order had in fact been immediately complied with and petitioners could in no way be deemed as "lawfully arrested without warrant." Otherwise, the Rule on preliminary investigation would not be "cured of its unconstitutional effects" by allowing the railroading on May 27th of the instant information for rebellion without preliminary investigation thru respondent general's contumacious and unlawful act of disobeying the Court's May 23rd release order. This was the same standard that would have been applied in the Court's aborted decision in Eastern Broadcasting Corp. (DYRE) vs. Hon. Dans, Jr. 71 There, this Court brushed aside respondents' procedural arguments to dismiss the petition as "moot and academic" because of the non-renewal of the petitioner's radio broadcasting station's license from the time of its summary closure in 1980 up to the time of the Court's determination in July this year. Instead, as noted in the writer's separate opinion therein, this Court "serve(d) notice that in the exercise of the judicial power vested in it by the Constitution, it will issue the equitable writs of certiorari and mandamus to do substantial justice and restore the status quo. In this case, the summary closure of petitioner's radio station in 1980 having been declared null and void and no valid ground for non-renewal of its license having been shown, it is as if the said license has been duly extended up to the end of the current term or year. It is expected that respondents will forthwith return the crystal of the transmitter and place no further obstacle to the prompt reopening of the radio station so that petitioner may pick up the broken pieces and rightfully resume its operations (after almost five years of closure) in accordance with the judgment at bar." Applying this standard to the case at bar, would simply mean that the clock would simply be turned back to the day of this Court's immediately executory release order of May 23rd this year, as if the same order had been faithfully and lawfully complied with. Only thus could substantial and not paper justice be done and the petitioners be not deprived of their constitutional right to due process and be secured by preliminary investigation against hasty, oppressive and vindictive prosecution. 16. "The preservation of freedom, like its perfection is a never ending struggle." This was the exhortation of President Ferdinand Edralin Marcos at the observance at Fort Bonifacio last May 27th of American Memorial Day. He admonished the people that "democracy is a condition requiring constant vigilance. Neither totalitarianism nor authoritarianism can by themselves triumph over the democratic Ideal. But when free men shirk from their duties to society, as well as to themselves, they imperil their own liberty. When the citizens of a democracy allow themselves to be lulled into indifference, they seal their own doom. ... If we

are to remain free at all, we must show ourselves to be capable and willing to fight in defense of our way of life. " 72 17. Former Chief Justice Roberto Concepcion, who with IBP President Emeritus J.B.L. Reyes, has shunned their well-earned rest and in their eighties continue at the forefront of upholding the cause of freedom and human rights and rendering free legal aid to the poor, disadvantaged and oppressed, made this plea for the cause of the independence of the judiciary at the hall of the Court which he once presided with honor, dignity and integrity. "During the 85 years of this century, there has never been a case as transcendental as this one. We have tried and bolstered to be a democratic society which is based and predicated upon freedom of speech. But to bolster up the freedom of speech, we've established the right of every person accused and even detained to counsel. Now, any (act) tending to impair the disposition of lawyers to represent the accused, is derogatory to the democratic system, and therefore, derogatory to human rights. It is significant that at first only, I would say, only persons suspected of being subversives were being arrested and later on salvaged. I don't know how the word salvage happened to be used, because salvage from what ...Then even the priests, ... we have started from the North to the Southernmost part of the Philippines, from Abra to Davao, with lawyers. The only step higher than that echelon is the Judiciary. So it's not only the lawyers that are being involved in this case, it is the Judiciary, the independence of the Judiciary." 73 His Holiness Pope John Paul II in his address of February 17, 1981 to the President and the Nation during his Philippine visit stressed that " Even in exceptional situations that may at times arise, one can never justify any violation of the fundamental dignity of the human person or of the basic rights that safeguard this dignity Legitimate concern for the security of a nation, as demanded by the common good, could lead to the temptation of subjugating to the State the human being and his or her dignity and rights. Any apparent conflict between the exigencies of security and of the citizens' basic rights must be resolved according to the fundamental principle upheld always by the Church that social organization exists only for the service of man and for the protection of his dignity, and that it cannot claim to serve the common good when human rights are not safeguarded." 17. Petitioners'appeal for liberty should be heeded.-Petitioner Ilagan concisely stated at the May 23rd hearing that his objective as BAYAN s chairman is To achieve reforms in the government by voicing our grievances. " 74 In an open letter to his colleagues of the Integrated Bar, after expressing , 'grateful appreciation for the generous assistance, both financial and moral, which I and my family received . . . . (and) welcomed . . . . for reasons of necessity" (which hardliners would c nsider as a criminal act of the sympathizers and "assisting and aiding the enemy"), petitioner Ilagan makes this poignant appeal: ... What we are here for may not be your concern, but that we are here without due process of law should interest you all if you are true to your calling. We lawyers are adept at defending persons and interests in all the courts and forums of the land. We, particularly should be the first concerned at defending our own. But, by all means, we deserve that sacred right to do so on legitimate, fair and equitable terms. Never mind that our families have to subsist on the meager earnings of our working wines, but foremost in our

welfare is the right to be free, not only to prepare for our defense adequately but to give essence to that constitutional tenet that 'every person is presumed innocent until proven otherwise.' We cannot lay claim of a democratic society if we, lawyers, not only tolerate a lopsided view of the rule of law but ourselves fall prey to it.
That we are 'preventively detained' is pure euphemism. Deprived of liberty and entirely curtailed in the exercise of our basic rights, we are, in every sense, prisoners of the state. It is in this context that 1, on behalf of your three colleagues here, ask your whole75 hearted support in demanding justice for our cause.

Petitioners' eminent counsel make this stirring plea on their behalf: Constitutional history in republican democratic states is the story of the progressive triumph and expansion of human liberty as against the assertion of unrestrained power by monarchs, tyrants and other instrumentalities in the political community. Civilization under law has been marked by the departure from lese majeste, the strengthening of legal institutions, especially the independent courts, and the adoption of rules, substantive and procedural, so that freedom is the general and normal state of the people. Although in exceptional cases, their individual freedom could be restrained but only on serious grounds compatible with the Constitution and always upon due process. This, at any rate, is a fundamental principle of English and American constitutional law whence our own constitutional system has been derived. In the words of Justice Jugo Black . . . . From the popular hatred and abhorrence of illegal confinement, torture and extortion of confessions of violations of 'the law of the land' evolved the fundamental Idea that no man's life liberty or property be forfeited as criminal punishment for violation of that law until there had been a charge fairly made and fairly tried in public tribunal free of prejudice, passion excitement and tyrannical power. Thus, as an assurance against ancient evils, our country, in order to preserve 'the blessings of liberty,' wrote into its basic law the requirement, among others, that the forfeiture of life, liberty or property of people accused of crime can only follow if procedural safeguards of due process have been obeyed. The determination to preserve the accused's right to procedural due process sprang in large part from knowledge of historical truth that the rights and liberties of the people accused of crime could not safely be entrusted to secret inquisitorial processes. Chambers v. Florida, 309 U.S. 227. In this jurisdiction, these rules are enshrined in the Bill of Rights in the Constitution and reenforced by statutes and the Rules of Court. xxx xxx xxx

If a person is unlawfully deprived of his liberty, he can avail himself of the great writ of liberty, the privilege of the writ of habeas corpus for the purpose of regaining freedom in the shortest time possible. In its early years of practice, the privilege of the writ of habeas corpus was a puny and unavailing remedy as against the king. For judges were under the influence of the crown and refused to issue the writ for people who were detained on suspicion of disloyalty to the former but against whom there was no concrete evidence, and the people continued "to languish in extended detention. To remedy this evil, the Habeas Corpus Act was adopted in 1679. Ex Parte Watkins, 7 L. Ed. 193, 201; Ex Parte Yerger, 8 Wall. 85: MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND 314-315. Since then, the privilege of the writ of habeas corpus has become the fundamental instrument against arbitrary and lawless state action. . The suspension of the privilege of the writ of habeas corpus carries with it the derogation of the people's freedoms and liberties. Therefore, the provisions must be strictly construed and cannot be allowed to extend to situations not explicitly allowed by the Constitution. Obliquely and subliminally respondents suggest to this Court to go back in history and to dismantlethe intricate system of reenforcing rules, principles and procedures that have developed through centuries of struggle for the more efficacious protection of individual liberty. They seek a return to thelese majeste when the voice of the King was the voice of God so that those who are touched by hisabsolute powers could only pray that the King acted prudently and wisely. Similarly respondents would have this Court and the people accept the proposition that the State's designation of persons as rebels and subversives without more is adequate basis for their immediate and indefinite detention. And that regardless of the quality or absence of evidence, the courts are powerless to intervene in behalf of the persons so designated. The Rule of Law and constitutionalism mean precisely the existence and the efficacy of legal institutions to protect and defend the rights and liberties of the people so they no longer have todepend upon prayers for the purpose.
Petitioners invoke the power of this Court to uphold the Constitution and to protect the rights of the people and to reject the basically undemocratic proposition suggested by 76 respondents.

I submit that the Court should heed petitioners' appeal for liberty. An editorial after the Court's stillborn May 23rd Resolution graphically articulates the compelling reasons for granting their plea for liberty: The government is not only the Chief Executive and the Batasang Pambansa. It necessarily includes the Supreme Court and the other courts. And time and

again it has been shown that the performance of the judiciary affects the complexion of the two other branches. The en banc resolution of the Supreme Court ordering the release from confinement of the three Davao lawyers who have acted as defense counsel in national security cases illustrates the point. The resolution shows the power of the judicial review and affirms the supremacy of the Constitution. It shows the independence of the judiciary and allays the fear of the opposition that, the judiciary is an instrument of the Chief Executive. xxx xxx xxx Where the Constitution of the democracy is not supreme, the Supreme Court weakens as the Chief Executive becomes stronger. Where that situation obtains, the people no longer trust the courts nor the Constitution. In the democracies, the judiciary is usually the 'weakest' of the branches. But here and at this time, the exclusion of the judiciary from an analysis of the kind of government that obtains would make a big difference.
A government without an independent Supreme Court would be like an automobile 77 without brakes.

I vote to grant the petition for habeas corpus and to set the petitioners immediately at liberty. Petitioners must be granted their constitutional right to due process and the right to preliminary investigation, as granted by statute and expressly assured to them by respondents in open court at the May 23rd hearing. The railroaded ex-parteproceedings and orders in the instant rebellion case should be declared null and void for lack of jurisdiction in having deprived petitioners of their sacred constitutional right to due process. CONCEPCION, JR., J., dissenting: 1. I dissent. The petition is not moot and academic. 2. Petitioners should be set free immediately because they were arrested unlawfully, and the information filed against them dismissed for being null and void. However, the authorities may, if they choose to do so, file a case against petitioners in the Fiscal's Office of Davao. The fiscal should conduct a preliminary investigation as required by law. If he finds the existence of a prima facie case, then he should file the necessary information in court. After the court issues a warrant of arrest against petitioners, only then may they be placed in custody. 3. Petitioners have a right to a preliminary investigation, and infringement of this right is a denial of due process.

4. The instances when a person may be arrested without a warrant are clearly laid down by Rule 113 of the 1985 Rules on Criminal Procedure as follows: SEC. 5. Arrest without warrant when lawful.-A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 1 1 2, Section 7. (6a, 17a). " 5. From the facts brought out by the pleadings and at the hearing, petitioners' arrest does not fall under any of the instances enumerated above. Their arrest without a warrant is therefore patently and undeniably illegal and contrary to law. 6. Just as a spring polluted at its source cannot produce a flow of clean water, the unlawful arrest of petitioners cannot give rise to a valid information. The information filed in court against them necessarily is and must remain null and void. 7. In Morales, 1 this Court cautioned against arrests without warrant in this wise: 14. Care should be exercised in making an arrest without a warrant. Where there is no justification for the arrest, the public officer could be criminally liable for arbitrary detention or unlawful arrest or for some other offense." 8. It is the responsibility of the judiciary to define and maintain the delicate balance between individual freedom and the security of the State. In the fulfillment of this mission, the active participation and assistance of dedicated human rights lawyers are indispensable. They sacrifice time and effort, and take grave risks to defend the rights of their clients. I salute them and say, "May their tribe increase." 9. At a time when the Armed Forces of the Philippines has to play a salient role in our affairs of government in view of the existence of a rebellion in our midst, there is all the more a greater need for lawyers to defend the rights of individuals against actual or possible abuses of agents of the State.

10. We must strengthen and solidify the Rule of Law. It is the only way to the survival of democracy in our land. Patajo J., concur ABAD SANTOS, J., dissenting : It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the early Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was replaced by substance. The development of the law did not stop there. The Roman praetorian law enlarged, supplemented and over-rode law which became narrow and rigid in scope. Finally, common law produced equity jurisprudence. It is a formal set of legal and procedural rules and doctrines to aid and even override common and statute law in order to protect rights and enforce duties fixed by substantive law. The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on the letter of the law. Upon the other hand the dissenting opinion of Justice Teehankee which is his article of faith appeals both to the mind and the heart for it is based not only on law but on equity also. I believe that Justice Teehankee's opinion better serves the ends of justice and I gladly subscribe to it. I also subscribe to Justice Concepcion's separate opinion
US vs Samonte
Republic of the Philippines SUPREME COURT Manila EN BANC DECISION September 6, 1910 G.R. No. 5649 THE UNITED STATES, plaintiff-appellee, vs. ISAAC SAMONTE, defendant-appellant. Godofredo Reyes, for appellant. Attorney-General Villamor, for appellee. Trent, J.: The defendant, Isaac Samonte, was tried in the Court of First Instance of the Province of Tayabas on a charge of criminal attempt against an agent of the authorities, and sentenced to one year eight months and twenty-one days of prision correccional, to pay a fine of P65, in case of insolvency to suffer the corresponding subsidiary imprisonment, to the accessory

penalties provided in article 61 of the Penal Code, and to pay the costs. He appealed to this court. Counsel for appellant insists, first, that the prosecution has failed to establish beyond a reasonable doubt that the policeman, Gregorio Glindo, attempted to arrest the accused in Verdales Street, the place where the trouble occurred; and, second that if said policeman did attempt to arrest the defendant at this place he, not having a judicial warrant, was not, under the circumstances, authorized to make the arrest which he attempted to make. About 8 oclock on the night of September 6, 1908, the appellant, Isaac Sa monte, and Basilio Rabe were together in the house of one Demetrio Pandeio in the barrio of Macalalong, jurisdiction of Pitogo, Province of Tayabas. They both left the house and met shortly afterwards in the street (Verdades) in said barrio. On meeting there they became engaged in a quarrel, the appellant knocking or pushing Rabe down, then proceeded to maltreat him. At this moment Rabe called police! police! Gregorio Glindo, a municipal policeman of Pitogo, being a patrol duty that night in said barrio, hearing these words went to the scene, arriving just as the offended party was getting up, and attempted to arrest the appellant, saying to him: In the name of the United States, dont move. The appellant, on seeing the policeman and hearing this command, said: Dont come near, because I will take your life. The policeman continued toward the appellant and when very near him the appellant struck at the policeman with a knife. On account of this resistance the policeman could not arrest the appellant at that time, so he went immediately to the house of the councilman of that barrio, Demetrio Pandenio, and reported the matter. Pandenio ordered him to arrest the appellant. He returned to obey this order, being followed by Pandenio. They found the appellant in a place called Mutingbayan. The policeman attempted to take hold of the appellant, but he resisted, striking at the policeman again with his knife. The councilman then ordered the appellant to submit himself, and on receiving this order the appellant said: I do not recognize anyone, and struck at the councilman with the knife. The appellant was not arrested on that night on account of this resistance. He did not lay hands on to touch with his knife either the policeman or the councilman, but he did refuse to submit himself to the authorities, and resisted arrest. The policeman did not see the appellant knock the priest down, neither did he see him kick the said priest, but we heard the cries of the priest calling for help, saying police! police! and w hen he arrived on the scene the priest was getting up and freeing himself from the appellant. When the policeman heard these cries for help he was only a very short distance some 6 or 8 brazas away, and when arrived the trouble had not terminated, although no active fighting took place after his arrival. Under these facts and circumstances it was the duty if this police officer to stop this disturbance by placing the defendant under arrest. Any officer in charged with the preservation of the public peace may arrest, without a warrant, any person who is committing, or has committed, a breach of the peace in his presence. (3 Cyc. 881; Carolina vs. McAfee, 10 L.R.A. 607; Commonwealth vs. Tobin, 11 Am. Rep. 375; People vs. Rounds, 35 N.W. 77; Douglas vs. Barber, 28 Atl. Rep. 805.)

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof; of the offense is continuing, or has not been consummated, at the time the arrest is made. (3 Cyc. 886; Ramsey vs. State, 17 S.E. 613; Dilger vs. Com., 11 S.W. 651; State vs. McAfee, 12 S.E. 435; State vs. Williams, 15 S.E. 554; and Hawkins vs. Lutton, 70 N.W. 483.) In the case at bar Gregorio Glindo, being a peace officer, not only had authority to arrest the defendant at that time, but it was his duty to do so, he having heard the priest call for help and having arrived on the scene before the disturbance had finally ended. Article 249 of the Penal Code provides that the following commit criminal attempt: xxx xxx xxx 2. Those who attack the authorities or their agents or employ force against them, or gravely intimidate them, or offer an equally grave resistance while they are discharging the functions of their office or on the occasion thereof. Article 250 of the same code fixes the penalty to be imposed for those guilty of an attempt against the authorities or their agents, as provided in the above article. The accused in this case, after an attempt had been made to arrest him by duly authorized police officer in the discharge of his duty a such, offered grave resistance by refusing to submit himself to arrest and by striking at the policeman with a knife, thereby attempting to a personal injury. Although the policeman was not wounded or touched by the accused, these facts do not receive him from criminal responsibility. The penalty imposed by the court below being in accordance with the law and the proofs presented, the same is hereby affirmed, with costs against the appellant. So ordered. Arellano, C. J., Torres, Johnson and Moreland, JJ., concur.

Prudente vs Dayrit

Prudente vs. Dayrit, GR No.82870

Posted by Pius Morados on November 11, 2011

(Constitutional Law Search Warrant, Probable Cause) Facts: Based on an information from a verified source that petitioner violated the Dangerous Drug Act of 1972, police officers applied for a search warrant which was subsequently issued by respondent judge. Petitioner assailed the validity of the search warrant on the ground that there was no probable cause for the issuance of search warrant.

Issue: Whether or not a warrant issued based on verified information to the police is valid. Held: No. Probable cause must be shown to be within the personal knowledge of the complainant or the witnesses and not simply on hearsay

Prudente G.R. December Facts:

vs

Executive No. 14,

Judge

Dayrit 82870 1989

The case is a petition for certiorari to annul and set aside the order of respondent Judge dated 9 March 1988 which denied Dr. Nemesis E. Prudentes (PUP President) motion to quash Search Warrant No. 87 14, as well as his order dated 20 April 1988 denying petitioner's motion for reconsideration of the earlier order. It appears that on 31 October 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court (RTC) of Manila, Branch 33, presided over by respondent Judge Abelardo Dayrit, now Associate Justice of the Court of Appeals, an application for the issuance of a search warrant, docketed therein as SEARCH WARRANT NO. 87-14, for VIOLATION OF PD NO. 1866 (Illegal Possession of Firearms, etc.) entitled "People of the Philippines, Plaintiff, versus Dr. Nemesis E. Prudente, Defendant." In his application for search warrant, P/Major Alladin Dimagmaliw alleged the following: that in PUP he has in his control or possession firearms, explosives handgrenades and ammunition which are illegally possessed or intended to be used as the means of committing an offense. That the undersigned has verified the report and found it to be a fact, and therefore, believes that a Search Warrant should be issued to enable the undersigned or any agent of the law to take possession and bring to the Honorable Court. Issue: Whether or not the application for Search Warrant No. 87-14 filed is legal against the defendant in violation of PD No. 1866? Held: No. The questioned orders dated 9 March 1988 and 20 April 1988 as well as Search Warrant No. 87-14 were annulled and set aside. Search Warrant

In Alvarez vs. Court of First Instance, the Court laid the following test in determining whether the allegations in an application for search warrant or in a supporting deposition, are based on personal knowledge or not, stating that true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant for search warrant, and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable.

Petitioner also assails the validity of the search warrant on the ground that it failed to particularly describe the place to be searched, contending that there were several rooms at the ground floor and the second floor of the PUP. In the present case, however, the application for search warrant was captioned: "For Violation of PD No. 1866 (Illegal Possession of Firearms, etc.) While the said decree punishes several offenses, the alleged violation in this case was, qualified by the phrase "illegal possession of firearms, etc." As explained by respondent Judge, the term "etc." referred to ammunitions and explosives. In other words, the search warrant was issued for the specific offense of illegal possession of firearms and explosives. Probable Cause

Manifestly, in the case at bar, the evidence failed to show the existence of probable cause to justify the issuance of the search warrant. The Court also notes post facto that the search in question yielded, no armalites, handguns, pistols, assorted weapons or ammunitions as stated in the application for search warrant, the supporting deposition, and the search warrant the supporting hand grenades were itself only three (3) live fragmentation found in the searched premises of the PUP, according to the affidavit of an alleged member of the searching party. The Court avails of this decision to reiterate the strict requirements for determination of "probable cause" in the valid issuance of a search warrant, as enunciated in earlier cases. True, these requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective. Under Oath

Finally, in connection with the petitioner's contention that the failure of the applicant to state, under oath, the urgent need for the issuance of the search warrant, his application having been filed on a Saturday, rendered the questioned warrant invalid for being violative of this Court's Circular No. 19, dated 14 August 1987, which reads: That applications filed after office hours, during Saturdays, Sundays and holidays shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, that the issuance is urgent.

Sayo vs chief of Police

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION DIRECTOR EPIMACO A. VELASCO, as Director of the National Bureau of Investigation [NBI], NATIONAL BUREAU

OF INVESTIGATION SPECIAL OPERATIONS GROUP [SOG], SPECIAL INVESTIGATORS III FLOR L. RESURRECCION and ANTONIO M. ERUM, JR. and THE PEOPLE OF THE PHILIPPINES, Petitioners, G. R. No. 118644
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July 7, 1995 -versusCOURT OF APPEALS, FELICITAS S. CUYAG, for and in behalf of LAWRENCE A. LARKINS, Respondents. DECISION DAVIDE, JR., J.: The high prerogative of the writ of habeas corpus whose origin is lost in antiquity, [1] was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint and as the best and only sufficient defense of personal freedom. [2] More specifically, its vital purposes are to obtain immediate relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause and to deliver them from unlawful custody. It is then essentially a writ of inquiry and is granted to test the right under which a person is detained. [3] Under our Constitution, the privilege of the writ of habeas corpus cannot be suspended except in cases of invasion or rebellion when the public safety requires it. [4] Pursuant to Section 1, Rule 102 of the Rules of Court, it extends, except as otherwise provided by law, to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto. It is not available, however, under the instances enumerated in Section 4 of the said Rule which reads:

Sec. 4. When writ not allowed or discharge authorized.- If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. In this petition for review, the petitioners want us to set aside and reverse the decision of 1 February 1995 of the Court of Appeals in CA-G. R. SP No. 36273, [5] a petition for habeas corpus and certiorari with a prayer for a temporary restraining order, ordering the herein petitioners to immediately release Lawrence A. Larkins from their custody and declaring moot the alternative relief of certiorari. The antecedent facts of the case as culled from the challenged decision and the pleadings of the parties are neither complicated nor disputed. On 16 September 1993, a warrant of arrest was issued by Judge Manuel Padolina of Branch 162 of the Regional Trial Court [RTC] of Pasig, Metro Manila, against accused Lawrence Larkins in Criminal Cases Nos. 101189-92 for violation of B.P. Blg. 22. On 20 November 1994, a certain Desiree Alinea executed and filed before the National Bureau of Investigation [NBI], a complaint-affidavit accusing Larkins of the crime of rape allegedly committed against her on 19 November 1994 at 2:00 a.m. in Victoria Valley Subdivision, Valley Golf, Antipolo, Rizal. [6] Acting on the basis of the complaint of Alinea, petitioners Special Investigators Flor L. Resurreccion and Antonio M. Erum, Jr., proceeded to the office of Larkins in Makati, Metro Manila, on 21 November 1994 and arrested the latter, who was thereupon positively identified by Alinea as her rapist. [7]Larkins was then detained at the Detention Cell of the NBI, Taft Avenue, Manila.
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On 22 November 1994, Larkins posted his bail of P4,000.00 in Criminal Cases Nos. 101189-92. Judge Padolina forthwith issued an order recalling and setting aside the warrant of arrest issued on 16 September 1993 and directing the Jail Warden of the NBI Detention Cell to release Larkins from confinement "unless otherwise detained for some other cause." Special Investigators Resurreccion and Erum refused to release Larkins because he was still detained for another cause, specifically for the crime of rape for which he would be held for inquest. On 23 November 1994, a complaint against Larkins for rape was executed by Alinea. [8] It contains a certification by Assistant Provincial Prosecutor Ma. Paz Reyes Yson that it is "filed pursuant to Section 7, Rule 112 of the 1985 Rules on Criminal Procedure, as amended, the accused not having opted to avail of his right to preliminary investigation and not having executed a waiver pursuant to Article 125 of the RPC." The complaint was filed with the RTC of Antipolo on 2 December 1994, docketed therein as Criminal Case No. 9411794 and assigned to Branch 71 of the court, presided by Judge Felix S. Caballes. On 2 December 1994, Larkins, through his counsel Mauricio C. Ulep, filed an Urgent Motion for Bail [9] wherein he alleged, inter alia, that the evidence of guilt against him for rape is not strong as he had no carnal knowledge of the complainant and the medical report indicates that her hymen was neither lacerated nor ruptured; that he is entitled as a matter of right to bail; and that he has no intention of going out of the country or hiding away from the law. On 6 December 1994, Larkins, through his new counsel, Atty. Theodore O. Te, filed in Criminal Case No. 94-11794 an Urgent Omnibus Motion for the Dismissal of the Complaint and for Immediate Release, [10] principally based on the alleged illegality of his warrantless arrest. This motion met vigorous opposition from the private complainant. [11] In the Order of 5 January 1995,[12] the trial court denied the aforesaid motions, thus: After a careful appreciation of the arguments of the prosecution and the defense, the Court finds no legal or valid grounds to dismiss the complaint or release the accused, or to grant him bail. The filing of this case against the accused, which is [a] very serious offense,
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justifies the grant of the motion of the prosecution for the issuance of a hold-departure order. WHEREFORE, the motions of the accused are hereby denied for lack of merit and as prayed for by the prosecution, the Bureau of Immigration and Deportation is hereby directed to include the name of the accused, Lawrence A. Larkins, in its hold-order departure list until further order from this Court. Unable to accept the ruling, Larkins' common-law wife, Felicitas S. Cuyag, filed before the Court of Appeals a petition for habeas corpus with certiorari. Impleaded as respondents were the herein petitioners and Judge Felix S. Caballes. Subsequently, the Court of Appeals issued a Resolution [13] ordering the respondents therein to appear and produce Lawrence A. Larkins before the Court on 31 January 1995 at 10:30 a.m. and to show cause why Larkins' liberty is being restrained. On the said date, Special Investigators Resurreccion and Erum appeared and produced Larkins at the hearing. Atty. Orlando Dizon of the NBI acted as their counsel. [14] The Office of the Solicitor General representing the People of the Philippines made no appearance. [15] Neither did Judge Caballes, for he had not received a copy of the Resolution. On the other hand, the petitioner therein, Felicitas S. Cuyag, appeared with her counsel, who manifested that should the Court order the release of Larkins the alternative prayer forcertiorari would be deemed abandoned. [16] After hearing the arguments of the parties, the Court of Appeals rendered the challenged decision holding that: From the arguments presented by the parties, We resolve to order the immediate release of Larkins from his present confinement on the ground that the complaint presented to the NBI by complainant Desiree Alinea on the basis of which, Larkins was detained without a warrant of arrest for rape did not meet the legal requirements provided for in Rule 113 of the Rules of Court. Furthermore, on the day the detention of Larkins commenced, i.e., immediately after the NBI was served with the Order of the Pasig RTC for his release on bail in connection with the B.P. 22 cases, no other criminal complaint or information had been filed or pending in any court. It was only sometime between November 25, 1994

[when filing of the complaint was approved by the Rizal Provincial Prosecutor] and November 29, 1994 [the date appearing on the Urgent Motion for Bail filed by Larkins's former counsel, said Atty. Ulep] that the complaint for rape was filed with the Antipolo RTC. The petitioners insist that the respondent court erred in granting the petition for habeas corpus because Larkins had already been charged with the crime of rape and the trial court had denied his application for bail. They further claim that the warrantless arrest in this case is valid for it was made under Section 5[b], Rule 113 of the Rules of Court. On the other hand, the private respondent contends that habeas corpus is rendered unavailing not by the mere filing of an information, but by the issuance of a warrant of arrest or warrant of commitment, which are the only two processes recognized by law to justify deprivation of liberty, and the order of Judge Caballes of 5 January 1995 denying the petition for bail does not qualify as such. She asserts that the petitioners have miscomprehended Paredes vs. Sandiganbayan [17] because that case did not rule that the writ is no longer available after an information [or criminal complaint for rape as in this case] is filed against the person detained; what it stated is that the writ of habeas corpus will not issue when the person alleged to be restrained of his liberty is in the custody of an officer under a process issued by the court which has jurisdiction to do so. She submits that the controlling doctrine is that enunciated in Ilagan vs. Ponce Enrile, [18] adverted to in Sanchez vs. Demetriou, [19] that "[t]he filing of charges and the issuance of the corresponding warrant of arrest against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect." We find for the petitioners. But, before We take up the substantive merits of this petition, We shall first delve into the propriety of the petition for habeas corpus and certiorari filed by private respondent Cuyag with the Court of Appeals. Concededly, the private respondent has the personality to institute on behalf of her common-law spouse, Lawrence Larkins, the habeas corpus aspect of the petition, as she falls within the purview of the term "some person" under Section 3,
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Rule 102 of the Rules of Court which means any person who has a legally justified interest in the freedom of the person whose liberty is restrained or who shows some authorization to make the application. [20] She is not, however, the real party in interest in the certiorari aspect of the petition. Only Larkins could institute a petition for certiorari to set aside the order denying his motions for bail and for the dismissal of the complaint against him. It does not, however, follow that if certiorari is available to Larkins, an application for a writ of habeas corpus will absolutely be barred. While ordinarily, the writ of habeas corpus will not be granted when there is an adequate remedy by writ of error or appeal or by writ of certiorari, it may, nevertheless, be available in exceptional cases, for the writ should not be considered subservient to procedural limitations which glorify form over substance. [21] It must be kept in mind that although the question most often considered in both habeas corpus and certiorari proceedings is whether an inferior court has exceeded its jurisdiction, the former involves a collateral attack on the judgment and "reaches the body but not the record," while the latter assails directly the judgment and "reaches the record but not the body." [22] And now on the merits of the petition. The Court of Appeals granted the writ of habeas corpus because it found that the warrantless arrest of Larkins for the crime of rape "did not meet the legal requirements provided for in Rule 113 of the Rules of Court." It could have in mind Section 5 thereof on lawful warrantless arrest. Even if the arrest of a person is illegal, supervening events may bar his release or discharge from custody. What is to be inquired into is the legality of his detention as of, at the earliest, the filing of the application for a writ ofhabeas corpus, for even if the detention is at its inception illegal, it may, by reason of some supervening events, such as the instances mentioned in Section 4 of Rule 102, be no longer illegal at the time of the filing of the application. Among such supervening events is the issuance of a judicial process preventing the discharge of the detained person. Thus, in Sayo vs. Chief of Police of Manila, [23] this Court held: We hold that petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now
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detained by virtue of a process issued by a competent court of justice. [emphasis supplied]. Another is the filing of a complaint or information for the offense for which the accused is detained, as in the instant case. By then, the restraint of liberty is already by virtue of the complaint or information and, therefore, the writ of habeas corpus is no longer available. Section 4 of Rule 102 reads in part as follows: "nor shall anything in this rule be held to authorize the discharge of a person charged with an offense in the Philippines." Thus, in Matsura vs. Director of Prisons, [24] where petitioners Macario Herce and Celso Almadovar claimed to have been illegally detained for more than one year without any complaint or information filed against them, this Court denied the petition for a writ of habeas corpus for at the time they filed the petition, they had already been charged with the crime of treason and confined by reason thereof. Harvey vs. Defensor-Santiago [25] reiterates Matsura. In Cruz vs. Montoya, [26] this Court dismissed the petition for habeas corpusfor having become academic because the information for estafa against the party whose liberty was allegedly illegally restrained had already been filed and a warrant for his arrest had been issued and whatever illegality might have originally infected his detention had been cured. In Umil vs. Ramos, [27] this Court, applying the last sentence of Section 4 of Rule 102, held that the writ of habeas corpus should not be allowed after the party sought to be released had been charged before any court. Thus: It is to be noted that in all the petitions here considered, criminal charges have been filed in the proper courts against the petitioners. The rule is that if a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, and that the court or judge had jurisdiction to issue the process or make the order, or if such person is charged before any court, the writ of habeas corpus will not be allowed. Section 4, Rule 102, Rules of Court, as amended is quite explicit in providing that: Sec. 4. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the
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Philippines or of a person suffering from imprisonment under lawful judgment. [28] [Emphasis supplied]. It may also be said that by filing his motion for bail, Larkins admitted that he was under the custody of the court and voluntarily submitted his person to its jurisdiction. In De Asis vs. Romero, [29] this Court stated: De Asis could have, right after his arrest, objected to the regularity of the issuance of the warrant of arrest in question. Instead he not only filed a petition for bail with the lower court, thereby accepting the court's jurisdiction over his person, but he also pleaded, on arraignment, to the information filed against him. [Emphasis supplied]. The filing of a petition or motion for bail in cases where no bail is recommended has the same legal import and effect as the posting of bail in cases where bail is recommended. It is settled that the giving or posting of bail by the accused is tantamount to submission of his person to the jurisdiction of the court. In the case of Carrington vs. Peterson, [30] this Court declared: When a defendant in a criminal case is brought before a competent court by virtue of a warrant of arrest or, otherwise, in order to avoid the submission of his body to the jurisdiction of the court, he must raise the question of the court's jurisdiction over his person at the very earliest opportunity. If he gives bail, demurs to the complaint or files any dilatory plea or pleads to the merits, he thereby gives the court jurisdiction over his person. [State ex rel.John Brown vs. Fitzgerald, 51 Minn., 534]. In United States vs. Grant, [31] this Court held: Conceding again that the warrant issued in this case was void for the reason that no probable cause was found by the Court before issuing it, the defendant waived all his rights to object to the same by appearing and giving bond.
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While it may be true that on 6 December 1994, or four days after the filing of the Urgent Motion for Bail, Larkins, thru a new counsel, filed an Urgent Omnibus Motion for Dismissal of the Complaint and for Immediate Release based on the alleged illegality of his

warrantless arrest, the said motion was a mere afterthought which came too late in the day. By then, the trial court had firmly acquired jurisdiction over his person. Moreover, the trial court's order of 5 January 1995 denying the Urgent Motion for Bail was an unequivocal assertion of its authority to keep in custody the person of Larkins. This order comes under the purview of the word Order under the first sentence of Section 4 of Rule 102 reading: "If it appears that the person alleged to be restrained of his liberty is in the custody of an officer by virtue of [an] order of a court of record, and that the court or judge had jurisdiction to make the order, the writ shall not be allowed." The foregoing renders untenable private respondent's claim that it is the rule in Ilagan vs. Enrile [32] which must govern that the writ may not be allowed only where the person alleged to be restrained of his liberty is in the custody of an officer under process issued by the court or judge and that there are only two recognized processes which justify deprivation of liberty, viz.: [1] commitment order; and [2] warrant of arrest. The contention is not only a deliberate misreading of Section 4 of Rule 102 limiting its application to the first part of the first sentence and disregarding the rest but is also an undue and unwarranted restriction of the term process. A commitment order and a warrant of arrest are but species of judicial process. In Malaloan vs. Court of Appeals, [33] this Court stated: Invariably a judicial process is defined as a writ, warrant, subpoena or other formal writing issued by authority of law; also, the means of accomplishing an end, including judicial proceedings or all writs, warrants, summonses and orders of courts of justice or judicial officers. It is likewise held to include a writ, summons or order issued in a judicial proceeding to acquire jurisdiction of a person or his property, to expedite the cause or enforce the judgment, or a writ, warrant, mandate or other processes issuing from a court of justice.
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In Macondray & Co., Inc. vs. Bernabe, [34] this Court quoted Corpus Juris' definition of the term "process," to wit: As a legal term, process is a generic word of very comprehensive signification and many meanings. In its broadest sense, it is

equivalent to, or synonymous with "proceedings" or procedure and embraces all the steps and proceedings in a cause from its commencement to its conclusion. Sometimes the term is also broadly defined as the means whereby a court compels a compliance with its demands. [50 C.J. 441]. We, thus, rule that the order of 5 January 1995 of the trial court also qualifies as a process within the meaning of Section 4 of Rule 102. Hence, even granting that Larkins was illegally arrested, still the petition for a writ ofhabeas corpus will not prosper because his detention has become legal by virtue of the filing before the trial court of the complaint against him and by the issuance of the 5 January 1995 order. Even as We, thus, decide in favor of the petitioners, We are, nevertheless, disturbed by certain incidents relative to the warrantless arrest of Larkins. Firstly, assuming that it was lawful, the facts before Us disclose that the arresting officers failed to strictly comply with the last paragraph of Section 5, Rule 113 of the Rules of Court requiring that the person lawfully arrested without a warrant shall forthwith be delivered to the nearest police station or jail and shall be proceeded against in accordance with Section 7, Rule 112; and (2) Article 125 of the Revised Penal Code, as amended, providing that he be delivered to the proper judicial authorities within thirty-six hours, the crime with which Larkins was charged being punishable by an afflictive penalty. Although the arrest was made in Makati where there is a police station and a municipal [now city] jail, Larkins was brought to the NBI Detention Cell at Taft Avenue, Manila, and though the complaint of the offended party was executed on 23 November 1994, it was not until 2 December 1994 that the said complaint was actually filed in court. Unless satisfactorily explained, the non-compliance by the arresting officers with the said provisions merits nothing but disapproval from the Court. In the performance of their duty and in their commendable pursuit to stamp out crimes and bring criminals to the bar of justice, law enforcement authorities should make no shortcuts, but must comply with all procedures to safeguard the constitutional and statutory rights of accused persons. The rule of law must always be upheld. What this Court said in Beltran vs. Garcia [35] needs to be repeated:

It certainly does not speak well of officialdom, whether civilian or military, if a person deprived of his liberty had to go to court before his rights are respected. The good name of the administration is jeopardized, without any fault on its part, by such inefficiency or inattention to duty. Every precaution should be taken against its repetition. Otherwise, the parties responsible for this state of affairs would justly lay themselves open to the accusation that the greatest danger to constitutional rights comes from public officials, men of zeal, concededly well-meaning, but without sufficient understanding of the implication of the rule of law. We also note that the trial court did not conduct a hearing of the Urgent Motion for Bail as required under Section 5, Rule 114 of the Rules of Court. The grant or denial of bail must be based upon the court's determination as to whether or not the evidence of guilt is strong. This discretion may only be exercised after evidence is submitted at the hearing conducted for that purpose. [36] The court's order granting or refusing bail must contain a summary of the evidence for the prosecution followed by its conclusion whether or not the evidence of guilt is strong; otherwise, the order would be defective and voidable. [37] In fact, even if the prosecutor refuses to adduce evidence in opposition to the application to grant and fix bail, the court may ask the prosecution such questions as would ascertain the strength of the State's evidence or judge the adequacy of the amount of bail. [38] It was, thus, incumbent upon the trial court to receive the evidence for the prosecution on the urgent motion for bail. For this procedural shortcoming, Larkins should also be partly blamed. He did not press for a hearing after the scheduled hearing on 5 December 1994 was cancelled because, as he claimed, the Presiding Judge was out of the country. [39] WHEREFORE, the instant petition is granted, and the Decision of the Court of Appeals of 1 February 1995 in CA-G. R. SP No. 36273 is hereby set aside and annulled. No pronouncement as to costs. SO ORDERED.
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