Marie Angelica M. Thelmo 2001-16919 Prof.

Gwen De Vera Martial Law The Unbailable Truth: A Commentary on Garcia-Padilla v. Enrile1 and Morales v. Enrile2 “The President is answerable only to his conscience, the people, and God.” -Justice De Castro on the accountability of President Marcos As claimed by several resource persons in class, the social conditions of the time prior to Martial Law called for swift action from the government. However, the measures taken by then President Marcos, which were affirmed by the Supreme Court in many instances, demonstrated a silent connivance between the executive and judicial branches of government that left the people bereft of recourse in the legal system. Suspension of the privilege of the writ of habeas corpus The cases of Garcia-Padilla v. Enrile, and Morales v. Enrile pronounce a startling interpretion of the Constitutional provision on the right to bail vis-a-vis the suspension of the privilege of the writ of habeas corpus. In both cases, a petition for habeas corpus was filed
1 2 G..R. No. l-61016, 121 SCRA 472 (1983). G..R. No. L-61107, 121 SCRA 538 (1983).


following the detention of alleged rebels, deemed to be members of the Communist Party of the Philippines. The Supreme Court in both instances denied the issuance of the writ, saying that the arrests were valid. The Supreme Court also upheld the president's decision to suspend the privilege of the writ with respect to “persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposals to commit such crimes, and for all other crimes and offenses committed by them in furthereance or on the occasion thereof, or incident thereto, or in connection therewith.”3 In other words, the Court upheld the arrest and detention of the petitioners even after the lifting of martial law because their arrest was for rebellion, a continuing offense. However, in an article by Attorneys Roberto Dio and Teofilo Pilando4, the continued suspension of the privilege of the writ despite the lifting of martial law “appears to be tainted with two defects touching on its validity and effectivity.” The rule under the Constitution is that the privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it [...] The exercise of the president of this authority requires factual determination [...] such that an absence of such determination vitiates the suspension as invalid for lack of any Constitutional basis. [...] The enactment, in fact, declares the termination
3 4 Proc. No. 2045 (1981). Dio and Pilando, Garcia-Padilla v. Enrile: An Assault on Individual Liberty. 59 P.L.J. 59.


throughout the country of the state of martial law. The declaration of martial law is based on the same grounds as the suspension of the privilege of the writ so it follows logically that since the requisite conditions which have given rise to the imposition of martial law have been met, eradicated, overcome [...] the necessity for the continued suspension of the privilege likewise has lost its constitutional support. Based on the foregoing, it can be said that the Supreme Court erroneously intrepreted the constitutional provision on the suspension of the privilige of the writ. Under Marcos' proclamation, the suspension of the privilege applies also to persons who have commited or is committing “subversion, conspiracy or proposals to commit such crimes, and for all other crimes and offenses committed by them in furthereance thereof.” The Constitution, however, only enumerates four grounds that will justify the suspension of the privilege: invasion, insurrection or rebellion, or imminent danger thereof. As an excuse, the Supreme Court in the Garcia-Padilla v. Enrile case claims that the Lansang5 doctrine, where the test of arbitrariness was enunciated, should be abandoned and that the ruling enunciated in Barcelon v. Baker6and Montenegro v. Castañeda7 should be upheld. In these cases, the court ruled that the court cannot question the acts of the executive and legislative branches of government, and since the suspension of the privilege of the writ is a political question, courts cannot inquire into its validity. One may ask,
5 6 7 Lansang v. Garcia, 42 SCRA 448 (1971). 5 Phil. Reports 87 (1905). 91 Phil. Reports 882 (1949).


but what about the Morales v. Enrile case where the Supreme Court reinstuted the Lansang doctirne that the suspension of the privilege of the writ is a juticiable question the courts may inquire into? Although the Court in the Morales v. Enrile case reinstated the Lansang doctrine, it nonetheless upheld the president's discretion to suspend the privilege of the writ since according to the Court, the president did not act arbitrarily. The Court also ruled that the pertitioners in this case were legally detained because informations were filed against them in the proper courts. Thus, a writ of habeas corpus did not lie when an information has already been filed against those detained. However, although the Court’s positive act in reinstating the Lansang doctrine affirmed the power of the Judiciary to exercise judicial review, committed more harm by acquiescing to the actions of the president in suspending the privilege of the writ, in issuing presidential commitment orders, and in declaring that the suspension of the privilege of the writ of habeas corpus carries with it the suspension of the right to bail. In addition, the test of arbitrariness enunciated in the Lansang case fails to give teeth to the judiciary. In applying the test of arbitrariness, the Court claimed that it cannot supplant the decision of the President, but simply inquire into to the arbitrariness of his actions. Such a pronouncement steers away from the Marbury v. Madision8 doctrine which states that a court can exercise its power of check and balance by inquiring into the legality of the acts of the other branches of government. It should be noted that the only stark difference between the Garcia-Padilla case and the Morales case is the justiciability of the suspension of the privilege of the writ. In no way do these two cases
8 5 U.S. (1 Cranch) 137 (1803).


say that the caveat in Proclamation 2045 is unconstitutional. The Court therefore hinges most of its arguments on the proclamations and letters of instructions issued by then President Marcos. To the Court, these are binding and valid because such were not issued arbitrarily. Thus, since the Court does not have the capacity and the power to determine the factual antecedents that gave rise to the issuance of such proclamations and letters of instructions, the test of arbitrariness should be based on the factual findings of the executive branch. Such effectively demonstrates the detachment of the Court, and in wholly adopting the factual such effectively backdrop offered by the its weakness and government, demonstrates

dependency on the executive branch. On the suspension of the right to bail What one may find more contentious, however, is the suspension of the right to bail, which, according to the Court, was a necessary consequence of the suspension of the privilege of the writ. Thus, where the offense for which a person was arrsted is that prescribed by Proclamation No. 2045, the detainee had no right to bail even after court charges have been filed. In the cases of Garcia-Padilla and Morales, the suspension of the right to bail was found to be a necessity following the suspension of the writ of habeas corpus during a time of rebellion. As enunciated in Garcia-Padilla v. Enrile, “the suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective.” The Court reasons that those

captured, if set free or released on bail, “would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring an end to the...rebellion” (emphasis supplied). With these words, the Court disregards two very important constitutional guarantees. First, Section 18 the 1973 Constitution guarantees the right to bail: “All persons, except those charged with capital offenses when evidence of guilt is strong shall, before conviction, be bailable by sufficient sureties (emphasis supplied).” Thus, all persons who are not charged with capital offenses should be granted bail as a matter of right. It was wrong for the Court to have pronounced otherwise. As Justice Teehankee stated in his dissent, the right to bail is a separate and co-equal right with the right to habeas corpus. He also aptly explains that the right to habeas corpus cannot be suspended, only the privilege of the writ can. According to Section 15 of the 1973 Constitution, only the privilege of the writ of habeas corpus can be suspended under certain conditions: “The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it.” Second, the court disregarded the constitutional guarantee of presumption of innocence as enunciated in Section 19 of the 1973 Constitution: “In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved...” The Constitution also guarantees other rights of the accused, which include the right to a speedy, impartial, and public trial. The Court in Garcia-Padilla, in pronouncing that the petitioners “would, without the least doubt,

rejoin their comrades in the field” (emphasis supplied) presumes that the petitioners were already guilty of the crimes they were accused of. Likewise, to claim that the denial of bail is necessary in order for the State to protect itself presumes that the State can not resort to any other means in order to survive. By upholding the suspension of the right to bail, the Court did not consider that the State should have exhausted all options to protect itself. In the words of Justice Teehankee in the Garcia-Padilla case: “the argument that the purpose of the suspension of the privilege would be defeated if bail was granted ignores the overwhelming capability of the State and its military and police forces to keep suspects under surveillance and the courts' imposition of reasonable conditions in granting bail, such as periodic reports to the authorities concerned, and prohibiting their going to certain critical areas.” The right to bail and the Presidential Committment Order In both the Garcia-Padilla and Morales cases the Court hinged its arguements heavily on the validity of the various presidential issuances after martial law. Aside from Proclamation No. 2045 terminating the state of martial law in the Philippines, President Marcos also issued Letters of Instruction (LOI) No. 1211, which superseded LOI No. 1125-A. LOI No. 1211 allowed the issuance of Presidential Commitment Orders or PCOs. A PCO is issued by a military commander or head of a law enforcement agency through the Minister of National Defense if “resort to judicial process is not possible or expedient without endangering public order and safety” or the release on bail of a person under detention by virtue of a judicial

warrant “would endanger public order and safety.” To any ordinary person, a PCO prescribes an irregular method of arresting and detaining a person; however, the Court, in both cases, upheld the validity of PCOs stating that their issuances were necessary to protect the State. The Court claimed that the issuance of PCOs were necessary to effect preventive detention; therefore, a person detained by virtue of a PCO may only be released “until orderd by [...] the President or his duly authorized representative.” It thus follows that a person detained by the power of a PCO cannot be released on bail. There are several dangers the Court has failed to appreciate when it upheld the validity of the PCOs. One, the issuance of a PCO smacks with arbitrariness. There is no requirement for the Minister of Defense to determine probable cause. As Dio and Pilando stated in their article, “the result (of issuing a PCO) is to subject the personal security of every citizen and individual to executive discretion and control.” Thus, it violates the right of the people to be secure in their persons. Second, the Constitution provides that only a judge may issue a warrant of arrest or warrant for search and seizure. In no way does it authorize the President to issue PCOs. A PCO is an entirely new animal that finds no basis in any law save that which gave rise to it, or LOI No. 1211. Third, the PCO allows deprivation of liberty for an unlimited time to prevent the detainee from committing further acts that would endanger the existence of the State. Thus, it “legitimizes preventive detention as an official policy.”9 Detention should be a means to punish a person or correct his or her behavior, or prevent him or her from escaping while litigation is ongoing. However,
9 Dio, Ibid.


detention based on a PCO does not create a time limit. Since the goal is preventive detention, the detainee is assumed guilty even if no information has been filed against him or her. As earlier stated, the detainee's right to be presumed innocent is disregarded, if not outright violated. Lastly, given its arbitrary nature and protracted application, it is not far fetched from thinking that torture and other human rights violations may take place while those accused are in detention. Conclusion There are many who still view martial law as a necessary consequence of our history as a people. There are also those who view martial law as a blessing because of the alleged discipline it instilled in the people during that time. Nonetheless, it should be noted that the declaration of martial law in the country carried with it excesses that led to several human rights violations. The acquiescence of the judiciary paved the way for the declaration of martial law. Although the Lansang case declared that the president’s action in suspending the privilege of the writ is a justiciable issue, the Court still failed as a constitutional watchdog in upholding the acts of then President Marcos. The judiciary thus failed to bark hard and loud enough in defending the individual rights of the people over that of the State. In hindsight, it is not surprising that constitutional authority was inevitable. With no one to stop Marcos, he was an invited thief to the constitution that housed human liberties. Unfortunately, the doctrines pronounced in these cases have not been overturned. Still, it is with great hope that in the advent history

repeats itself, the Court will exercise not just its independence and neutrality as a separate branch of government, but its sense of righteousness and empathy in determining the validity of the acts of the executive branch.


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