EN BANC

[G.R. No. L-1800. January 27, 1948.]

CIPRIANO P. PRIMICIAS, General Campaign Manager of Coalesced Minority

Parties, Petitioner, v. VALERIANO E. FUGOSO, Mayor of City of
Manila, Respondent.

Ramon Diokno for Petitioner.

City Fiscal Jose P. Bengzon and Assistant City Fiscal Julio Villamor
for Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT TO FREEDOM OF SPEECH AND TO PEACEFULLY

ASSEMBLE AND PETITION GOVERNMENT FOR REDRESS OF GRIEVANCES, NOT ABSOLUTE;
REGULATION UNDER POLICE POWER; POLICE POWER, BY WHOM EXERCISED. — The right
to freedom of speech, and to peacefully assemble and petition the government for redress
of grievances, are fundamental personal rights of the people recognized and guaranteed by
the constitutions of democratic countries. But it is a settled principle growing out of the
nature of well-ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society. The power to regulate
the exercise of such and other constitutional rights is termed the sovereign "police power,"
which is the power to prescribe regulations, to promote the health, morals, peace,
education, good order or safety, and general welfare of the people. This sovereign police
power is exercised by the government through its legislative branch by the enactment of
laws regulating those and other constitutional and civil rights, and it may be delegated to
political subdivisions, such as towns, municipalities and cities by authorizing their legislative
bodies called municipal and city councils to enact ordinances for the purpose.

2. ID.; ID.; ID.; ID.; SCOPE OF POLICE POWER DELEGATED TO MUNICIPAL BOARD OF
MANILA. — The Philippine Legislature has delegated the exercise of the police power to the
Municipal Board of the City of Manila, which according to section 2439 of the Administrative
Code is the legislative body of the City. Section 2444 of the same Code grants the Municipal
Board, among others, the following legislative powers, to wit:" (p) to provide for the
prohibition and suppression of riots, affrays, disturbances, and disorderly assemblies, (u) to
regulate the use of streets, avenues, . . . parks, cemeteries and other public places" and
"for the abatement of nuisances in the same," and" (ee) to enact all ordinances it may deem
necessary and proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general welfare of the
city and its inhabitants."cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; ID.; MEETING AND ASSEMBLY IN STREET OR PUBLIC PLACE IN
MANILA, REGULATION OF. — As there is no express and separate provision in the Revised
Ordinance of the City of Manila regulating the holding of public meeting or assembly at any
streets or public places, the provision of section 1119 of said Ordinance to the effect, among
others, "that the holding of any parade or procession in any streets or public places is
prohibited unless a permit therefor is first secured from the Mayor, who shall, on every such
occasion, determine or specify the streets or public places for the formation, route, and
dismissal of such parade or procession," may be applied by analogy to meeting and
assembly in any street or public places.
4. ID.; ID.; ID.; ID.; ID.; ID.; POWER OF MAYOR TO GRANT PERMIT FOR HOLDING
ASSEMBLY OR MEETING, PARADE OR PROCESSION, SCOPE OF. — Section 1119 of the
Revised Ordinance of the City of Manila is susceptible of two constructions: one is that the
Mayor of the City of Manila is vested with unregulated discretion to grant or refuse to grant
permit for the holding of a lawful assembly or meeting, parade, or procession in the streets
and other public places of the City of Manila; and the other is that the applicant has the
right to a permit which shall be granted by the Mayor, subject only to the latter’s reasonable
discretion to determine or specify the streets or public places to be used for the purpose,
with a view to prevent confusion by overlapping, to secure convenient use of the streets and
public places by others, and to provide adequate and proper policing to minimize the risk of
disorder. This court has adopted the second construction, namely, that said provision does
not confer upon the Mayor the power to refuse to grant the permit, but only the discretion,
in issuing the permit, to determine or specify the streets or public places where the parade
or procession may pass or the meeting may be held. The ordinance cannot be construed as
conferring upon the Mayor power to grant or refuse to grant the permit, which would be
tantamount to authorizing him to prohibit the use of the streets and other public places for
holding of meetings, parades or processions, because such a construction would make the
ordinance invalid and void or violative of the constitutional limitations. As the Municipal
Board is empowered only to regulate the use of streets, parks and other public places, and
the word "regulate," as used in section 2444 of the Revised Administrative Code, means and
includes the power to control, to govern and to restrain, but can not be construed as
synonymous with "suppress" or "prohibit" (Kwong Sing v. City of Manila, 41 Phil., 103), the
Municipal Board cannot grant the Mayor a power which it does not have. Besides, as the
powers and duties of the Mayor as the Chief Executive of the City are executive, and one of
them is "to comply with and enforce and give the necessary orders for the faithful
performance and execution of the laws and ordinances (section 2434 [b] of the Revised
Administrative Code), the legislative police power of the Municipal Board to enact
ordinances regulating reasonably the exercise of the fundamental personal right of the
citizens in the streets and other public places, cannot be delegated to the Mayor or any
other officer by conferring upon him unregulated discretion or without laying down rules to
guide and control his action by which its impartial execution can be secured or partiality and
oppression prevented.

5. ID.; ID.; ID.; ID.; ID.; ID.; ID.; SECTION 2434 OF ADMINISTRATIVE CODE GRANTING
MAYOR POWER TO GRANT OR REFUSE MUNICIPAL LICENSES OR PERMITS OF ALL CLASSES,
NOT APPLICABLE. — Section 2434 of the Administrative Code, a part of the Charter of the
City of Manila, which provides that the Mayor shall have the power to grant and refuse
municipal licenses or permits of all classes, cannot be cited as an authority for the Mayor to
deny the application of the petitioner, for the simple reason that said general power is
predicated upon the ordinances enacted by the Municipal Board requiring licenses or permits
to be issued by the Mayor, such as those found in Chapters 40 to 87 of the Revised
Ordinances of the City of Manila. It is not a specific or substantive power independent from
the corresponding municipal ordinances which the Mayor, as Chief Executive of the City, is
required to enforce under the same section 2434. Moreover "one of the settled maxims in
constitutional law is that the power conferred upon the Legislature to make laws cannot be
delegated by that department to any other body or authority," except certain powers of
local government, specially of police regulations which are conferred upon the legislative
body of a municipal corporation. Taking this into consideration, and that the police power to
regulate the use of streets and other public places has been delegated or rather conferred
by the Legislature upon the Municipal Board of the City (section 2444 [u] of the
Administrative Code), it is to be presumed that the Legislature has not, in the same breath,
conferred upon the Mayor in section 2434 (m) the same power, specially in view of the fact
that its exercise may be in conflict with the exercise of the same power by the Municipal
Board.

6. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; NULLITY OF UNLIMITED POWER OF MAYOR TO
GRANT OR REFUSE PERMIT FOR USE OF STREET AND PUBLIC PLACE FOR PROCESSIONS,
PARADES OR MEETINGS. — Assuming arguendo that the Legislature has the power to
confer, and in fact has conferred, upon the Mayor the power to grant or refuse licenses and
permits of all classes, independent from ordinances enacted by the Municipal Board on the
matter, and the provisions of section 2444 (u) of the same Code and of section 1119 of the
Revised Ordinances to the contrary notwithstanding, such grant of unregulated and
unlimited power to grant or refuse a permit for the use of streets and other public places for
processions, parades, or meetings, would be null and void, for the same reasons stated in
the decisions in the cases cited in the opinion, specially in Willis Cox v. State of New
Hampshire (312 U. S., 569), wherein the question involved was also the validity of a similar
statute of New Hampshire. Because the same constitutional limitations applicable to
ordinances apply to statutes, and the same objections to a municipal ordinance which
grants unrestrained discretion upon a city officer are applicable to a law or statute that
confers unlimited power to any officer either of the municipal or state governments. Under
the democratic system of government in the Philippines, no such unlimited power may be
validly granted to any officer of the government, except perhaps in cases of national
emergency. As stated in State ex rel. Garrabad v. Dering (84 Wis., 585; 54 N. W., 1104)
"The discretion with which the council is vested is a legal discretion to be exercised within
the limits of the law, and not a discretion to transcend it or to confer upon any city officer
an arbitrary authority making in its exercise a petty tyrant."cralaw virtua1aw library

7. ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — The reason alleged by the
respondent in his defense for refusing the permit is, "that there is a reasonable ground to
believe, basing upon previous utterances and upon the fact that passions, specially on the
part of the losing groups, remain bitter and high, that similar speeches will be delivered
tending to undermine the faith and confidence of the people in their government, and in the
duly constituted authorities, which might threaten breaches of the peace and a disruption of
public order." As the request of the petition was for a permit "to hold a peaceful public
meeting," and there is no denial of that fact or any doubt that it was to be a lawful
assemblage, the reason given for the refusal of the permit can not be given any
consideration. It does not make comfort and convenience in the use of streets or parks the
standard of official action. It enables the Mayor to refuse the permit on his mere opinion
that such refusal will prevent riots, disturbances or disorderly assemblage. It can thus, as
the record discloses, be made the instrument of arbitrary suppression of free expression of
views on national affairs, for the prohibition of all speaking will undoubtedly prevent such
eventualities. (Hague v. Committee on Industrial Organization, 307 U. S., 496; 83 Law. ed.,
1423.)

DECISION

FERIA, J.:

This is an action of mandamus instituted by the petitioner Cipriano Primicias, a campaign

manager of the Coalesced Minority Parties against Valeriano Fugoso, as Mayor of the City of
Manila, to compel the latter to issue a permit for the holding of a public meeting at Plaza
Miranda on Sunday afternoon, November 16, 1947, for the purpose of petitioning the
government for redress to grievances on the ground that the respondent refused to grant
such permit. Due to the urgency of the case, this Court, after mature deliberation, issued a
writ of mandamus, as prayed for in the petition on November 15, 1947, without prejudice to
writing later an extended and reasoned decision.

The right to freedom of speech, and to peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of the people recognized and
guaranteed by the constitutions of democratic countries. But it is a settled principle growing
out of the nature of well-ordered civil societies that the exercise of those rights is not
absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is termed the
sovereign "police power," which is the power to prescribe regulations, to promote the
health, morals, peace, education, good order or safety, and general welfare of the people.
This sovereign police power is exercised by the government through its legislative branch by
the enactment of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and cities by authorizing
their legislative bodies called municipal and city councils to enact ordinances for the
purpose.

The Philippine Legislature has delegated the exercise of the police power to the Municipal
Board of the City of Manila, which according to section 2439 of the Administrative Code is
the legislative body of the City. Section 2444 of the same Code grants the Municipal Board,
among others, the following legislative powers, to wit:" (p) to provide for the prohibition
and suppression of riots, affrays, disturbances and disorderly assemblies, (u) to regulate the
use of streets, avenues, . . . parks, cemeteries and other public places" and "for the
abatement of nuisances in the same," and" (ee) to enact all ordinances it may deem
necessary and proper for sanitation and safety, the furtherance of prosperity and the
promotion of morality, peace, good order, comfort, convenience, and general welfare of the
city and its inhabitants."cralaw virtua1aw library

Under the above delegated power, the Municipal Board of the City of Manila, enacted
sections 844 and 1119. Section 844 of the Revised Ordinances of 1927 prohibits as an
offense against public peace, and section 1262 of the same Revised Ordinance penalizes as
a misdemeanor, "any act, in any public place, meeting, or procession, tending to disturb the
peace or excite a riot; or collect with other persons in a body or crowd for any unlawful
purpose; or disturb or disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:jgc:chanrobles.com.ph

"SEC. 1119. Free for use of public. — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by ordinance or
regulation: Provided, That the holding of athletic games, sports, or exercises during the
celebration of national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit issued by the
Mayor, who shall determine the streets or public places, or portions thereof, where such
athletic games, sports, or exercises may be held: And provided, further, That the holding of
any parade or procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor, who shall, on every such occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such
parade or procession."cralaw virtua1aw library
As there is no express and separate provision in the Revised Ordinance of the City
regulating the holding of public meeting or assembly at any street or public places, the
provisions of said section 1119 regarding the holding of any parade or procession in any
street or public places may be applied by analogy to meeting and assembly in any street or
public places.

Said provision is susceptible of two constructions: one is that the Mayor of the City of Manila
is vested with unregulated discretion to grant or refuse to grant permit for the holding of a
lawful assembly or meeting, parade, or procession in the streets and other public places of
the City of Manila; and the other is that the applicant has the right to a permit which shall
be granted by the Mayor, subject only to the latter’s reasonable discretion to determine or
specify the streets or public places to be used for the purpose, with a view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by
others, and to provide adequate and proper policing to minimize the risk of disorder.

After a mature deliberation, we have arrived at the conclusion that we must adopt the
second construction, that is, construe the provisions of the said ordinance to mean that it
does not confer upon the Mayor the power to refuse to grant the permit, but only the
discretion, in issuing the permit, to determine or specify the streets or public places where
the parade or procession may pass or the meeting may be held.

Our conclusion finds support in the decision in the case of Willis Cox v. State of New
Hampshire, 312 U. S., 569. In that case, the statute of New Hampshire P. L. chap. 145,
section 2, providing that "no parade or procession upon any ground abutting thereon, shall
be permitted unless a special license therefor shall first be obtained from the selectmen of
the town or from licensing committee," was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfettered discretion to refuse to
grant the license, and held valid. And the Supreme Court of the United States, in its decision
(1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court,
held that "a statute requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an unconstitutional
abridgment of the rights of assembly or of freedom of speech and press, where, as the
statute is construed by the state courts, the licensing authorities are strictly limited, in the
issuance of licenses, to a consideration of the time, place, and manner of the parade or
procession, with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary discretion to
issue or refuse license, . . ."cralaw virtua1aw library

We cannot adopt the other alternative construction or construe the ordinance under
consideration as conferring upon the Mayor power to grant or refuse to grant the permit,
which would be tantamount to authorizing him to prohibit the use of the streets and other
public places for holding of meetings, parades or processions, because such a construction
would make the ordinance invalid and void or violative of the constitutional limitations. As
the Municipal Board is empowered only to regulate the use of streets, parks, and other
public places, and the word "regulate," as used in section 2444 of the Revised
Administrative Code, means and includes the power to control, to govern, and to restrain,
but can not be construed as synonymous with "suppress" or "prohibit" (Kwong Sing v. City
of Manila, 41 Phil., 103), the Municipal Board can not grant the Mayor a power which it does
not have. Besides, as the powers and duties of the Mayor as the Chief Executive of the City
are executive, and one of them is "to comply with and enforce and give the necessary
orders for the faithful performance and execution of the laws and ordinances" (section 2434
[b] of the Revised Administrative Code), the legislative police power of the Municipal Board
to enact ordinances regulating reasonably the exercise of the fundamental personal right of
the citizens in the streets and other public places, can not be delegated to the Mayor or any
other officer by conferring upon him unregulated discretion or without laying down rules to
guide and control his action by which its impartial execution can be secured or partiality and
oppression prevented.

In City of Chicago v. Trotter, 136 Ill., 430, it was held by the Supreme Court of Illinois that,
under Rev. St. Ill. c. 24, article 5 section 1, which empowers city councils to regulate the
use of the public streets, the council has no power to ordain that no processions shall be
allowed upon the streets until a permit shall be obtained from the superintendent of police,
leaving the issuance of such permits to his discretion, since the powers conferred on the
council cannot be delegated by them.

The Supreme Court of Wisconsin in State ex rel. Garrabad v. Dering, 84 Wis., 585; 54 N.
W., 1104, held the following:jgc:chanrobles.com.ph

"The objections urged in the case of City of Baltimore v. Radecke, 49 Md., 217, were also, in
substance, the same, for the ordinance in that case upon its face committed to the
unrestrained will of a single public officer the power to determine the rights of parties under
it, when there was nothing in the ordinance to guide or control his action, and it was held
void because ’it lays down no rules by which its impartial execution can be secured, or
partiality and oppression prevented,’ and that ’when we remember that action or nonaction
may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and
other improper influences and motives easy of concealment and difficult to be detected and
exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of
being wrought under cover of such a power, for that becomes apparent to every one who
gives to the subject a moment’s consideration. In fact, an ordinance which clothes a single
individual with such power hardly falls within the domain of law, and we are constrained to
pronounce it inoperative and void.’ . . . In the exercise of the police power, the common
council may, in its discretion, regulate the exercise of such rights in a reasonable manner,
but can not suppress them, directly or indirectly, by attempting to commit the power of
doing so to the mayor or any other officer. The discretion with which the council is vested is
a legal discretion, to be exercised within the limits of the law, and not a discretion to
transcend it or to confer upon any city officer an arbitrary authority, making him in its
exercise a petty tyrant."cralaw virtua1aw library

In re Frazee, 63 Michigan 399, 30 N. W., 72, a city ordinance providing that "no person or
persons, or associations or organizations shall march, parade, ride, or drive, in or upon or
through the public streets of the City of Grand Rapids with musical instrument, banners,
flags, . . . without having first obtained the consent of the mayor or common council of said
city;" was held by the Supreme Court of Michigan to be unreasonable and void. Said
Supreme Court in the course of its decision held:jgc:chanrobles.com.ph

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as
it is not plainly unconstitutional, as only conferring such power over the subjects referred to
as will enable the city to keep order, and suppress mischief, in accordance with the
limitations and conditions required by the rights of the people themselves, as secured by
the principles of law, which cannot be less careful of private rights under a constitution than
under the common law.

"It is quite possible that some things have a greater tendency to produce danger and
disorder in the cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogether can be granted at all. . . .

"It has been customary, from time immemorial, in all free countries, and in most civilized
countries, for people who are assembled for common purposes to parade together, by day
or reasonable hours at night, with banners and other paraphernalia, and with music of
various kinds. These processions for political, religious, and social demonstrations are
resorted to for the express purpose of keeping unity of feeling and enthusiasm, and
frequently to produce some effect on the public mind by the spectacle of union and
numbers. They are a natural product and exponent of common aims, and valuable factors in
furthering them. . . . When people assemble in riotous mobs, and move for purposes
opposed to private or public security, they become unlawful, and their members and
abettors become punishable. . . .

"It is only when political, religious, social, or other demonstrations create public
disturbances, or operate as nuisance, or create or manifestly threaten some tangible public
or private or private mischief, that the law interferes.

"This by-law is unreasonable, because it suppresses what is in general perfectly lawful, and
because it leaves the power of permitting or restraining processions, and their courses, to
an unregulated official discretion, when the whole matter, if regulated at all, must be by
permanent, legal provisions, operating generally and impartially."cralaw virtua1aw library

In Rich v. Napervill, 42 Ill., App. 222, the question was raised as to the validity of the city
ordinance which made it unlawful for any person, society or club, or association of any kind,
to parade any of the streets, with flags, banners, or transparencies, drums, horns, or other
musical instruments, without the permission of the city council first had and obtained. The
appellants were members of the Salvation Army, and were prosecuted for a violation of the
ordinance, and the court in holding the ordinance invalid said, "Ordinances to be valid must
be reasonable; they must not be oppressive; they must be fair and impartial; they must not
be so framed as to allow their enforcement to rest in official discretion . . . Ever since the
landing of the Pilgrims from the Mayflower the right to assemble and worship according to
the dictates of one’s conscience, and the right to parade in a peaceable manner and for a
lawful purpose, have been fostered and regarded as among the fundamental rights of a free
people. The spirit of our free institutions allows great latitude in public parades and
demonstrations whether religious or political . . . If this ordinance is held valid, then may
the city council shut off the parades of those whose nations do not suit their views and
tastes in politics or religion, and permit like parades of those whose notions do. When men
in authority are permitted in their discretion to exercise power so arbitrary, liberty is
subverted, and the spirit of our free institutions violated. . . . Where the granting of the
permit is left to the unregulated discretion of a small body of city eldermen, the ordinance
cannot be other than partial and discriminating in its practical operation. The law abhors
partiality and discrimination. . . ." (19 L. R. A., p. 861.)

In the case of Trujillo v. City of Walsenburg, 108 Col., 427; 118 P. [2d], 1081, the Supreme
Court of Colorado, in construing the provision of section 1 of Ordinance No. 273 of the City
of Walsenburg, which provides: "That it shall be unlawful for any person or persons or
association to use the street of the City of Walsenburg, Colorado, for any parade, procession
or assemblage without first obtaining a permit from the Chief of Police of the City of
Walsenburg so to do," held the following:jgc:chanrobles.com.ph

" [1] The power of municipalities, under our state law, to regulate the use of public streets
is conceded.’35 C.S.A., chapter 163, section 10, subparagraph 7.’The privilege of a citizen
of the United States to use the streets . . . may be regulated in the interest of all; it is not
absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.’ Hague, Mayor, v. Committee for Industrial Organization,
307 U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law. ed., 1423.

[2, 3] An excellent statement of the power of a municipality to impose regulations in the use
of public streets is found in the recent case of Cox v. New Hampshire, 312 U. S., 569; 61 S.
Ct., 762, 765; 85 Law. ed., 1049; 133 A.L.R., 1936, in which the following appears: ’The
authority of a municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding the good
order upon which they ultimately depend. The control of travel on the streets of cities is the
most familiar illustration of this recognition of social need. Where a restriction of the use of
highways in that relation is designed to promote the public convenience in the interest of
all, it cannot be disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in ignoring the
familiar red traffic light because he thought it his religious duty to disobey the municipal
command or sought by that means to direct public attention to an announcement of his
opinions. As regulation of the use of the streets for parades and processions is a traditional
exercise of control by local government, the question in a particular case is whether that
control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places. Lovell v. Criffin, 303 U.S., 444, 451;
58 S. Ct., 666, 668, 82 Law. ed., 949 [953]; Hague v. Committee for Industrial
Organization, 307 U.S., 496, 515, 516; 59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436,
1437]; Scheneider v. State of New Jersey [Town of Irvington]; 308 U. S., 147, 160; 60 S.
Ct., 146, 150; 84 Law. ed., 155 [164]; Cantwell v. Connecticut, 310 U.S., 296, 306, 307;
60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352.’

[4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the
uncontrolled official discretion of the chief of police of a municipal corporation to say who
shall, and who shall not, be accorded the privilege of parading on its public streets. No
standard of regulation is even remotely suggested. Moreover, under the ordinance as
drawn, the chief of police may for any reason which he may entertain arbitrarily deny this
privilege to any group. This is authorization of the exercise of arbitrary power by a
governmental agency which violates the Fourteenth Amendment. People v. Harris, 104
Colo., 386, 394; 91 P. [2d], 989; 122 A.L.R. 1034. Such an ordinance is unreasonable and
void on its face. City of Chicago v. Troter, 136 Ill., 430; 26 N. E., 359. See, also, Anderson
v. City of Wellington, 40 Kan. 173; 19 P., 719; 2 L.R.A., 110; 10 Am. St. Rep., 175; State
ex rel. v. Dering, 84 Wis., 585; 54 N. W., 1104: 19 L. R. A., 858, 36 Am. St. Rep., 948;
Anderson v. Tedford, 80 Fla., 376; 85 So., 673; 10 A. L. R., 1481; State v. Coleman, 96
Conn., 190; 113 A. 385, 387; 43 C. J., p. 419, section 549; 44 C. J., p. 1036, section 3885.
. . .

"In the instant case the uncontrolled official suppression of the privilege of using the public
streets in a lawful manner clearly is apparent from the face of the ordinance before us, and
we therefore hold it null and void."cralaw virtua1aw library

The Supreme Court of the United States in Hague v. Committee for Industrial Organization,
307 U. S., 496, 515, 516; 83 Law. ed., 1423, declared that a municipal ordinance requiring
the obtaining of a permit for a public assembly in or upon the public streets, highways,
public parks, or public buildings of the city and authorizing the director of public safety, for
the purpose of preventing riots, disturbances, or disorderly assemblage, to refuse to issue a
permit when after investigation of all the facts and circumstances pertinent to the
application he believes it to be proper to refuse to issue a permit, is not a valid exercise of
the police power. Said Court in the course of its opinion in support of the conclusion
said:jgc:chanrobles.com.ph

". . . Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such
use of the streets and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to
use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and
good order; but it must not, in the guise of regulation, be abridged or denied.

"We think the court below was right in holding the ordinance quoted in Note 1 void upon its
face. It does not make comfort or convenience in the use of streets or parks the standard of
official action. It enables the Director of Safety to refuse a permit on his mere opinion that
such refusal will prevent ’riots, disturbances or disorderly assemblage.’ It can thus, as the
record discloses, be made the instrument of arbitrary suppression of free expression of
views on national affairs for the prohibition of all speaking will undoubtedly ’prevent’ such
eventualities. But uncontrolled official suppression of the privilege cannot be made a
substitute for the duty to maintain order in connection with the exercise of the right."cralaw
virtua1aw library

Section 2434 of the Administrative Code, a part of the Charter of the City of Manila, which
provides that the Mayor shall have the power to grant and refuse municipal licenses or
permits of all classes, cannot be cited as an authority for the Mayor to deny the application
of the petitioner, for the simple reason that said general power is predicated upon the
ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the
Mayor, such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of
Manila. It is not a specific or substantive power independent from the corresponding
municipal ordinances which the Mayor, as Chief Executive of the City, is required to enforce
under the same section 2434. Moreover "one of the settled maxims in constitutional law is
that the power conferred upon the Legislature to make laws cannot be delegated by that
department to any other body or authority," except certain powers of local government,
specially of police regulation which are conferred upon the legislative body of a municipal
corporation. Taking this into consideration, and that the police power to regulate the use of
streets and other public places has been delegated or rather conferred by the Legislature
upon the Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to
be presumed that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m) the same power, specially if we take into account that its exercise may be
in conflict with the exercise of the same power by the Municipal Board.

Besides, assuming arguendo that the Legislature has the power to confer, and in fact has
conferred, upon the Mayor the power to grant or refuse licenses and permits of all classes,
independent from ordinances enacted by the Municipal Board on the matter, and the
provisions of section 2444 (u) of the same Code and of section 1119 of the Revised
Ordinances to the contrary notwithstanding, such grant of unregulated and unlimited power
to grant or refuse a permit for the use of streets and other public places for processions,
parades, or meetings, would be null and void, for the same reasons stated in the decisions
in the cases above quoted, specially in Willis Cox v. New Hampshire, supra, wherein the
question involved was also the validity of a similar statute of New Hamsphire. Because the
same constitutional limitations applicable to ordinances apply to statutes, and the same
objections to a municipal ordinance which grants unrestrained discretion upon a city officer
are applicable to a law or statute that confers unlimited power to any officer either of the
municipal or state governments. Under our democratic system of government no such
unlimited power may be validly granted to any officer of the government, except perhaps in
cases of national emergency. As stated in State ex rel. Garrabad v. Dering, supra, "The
discretion with which the council is vested is a legal discretion to be exercised within the
limits of the law, and not a discretion to transcend it or to confer upon any city officer an
arbitrary authority making in its exercise a petty tyrant."cralaw virtua1aw library

It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of the
Administrative Code apparently in support of the decision in the case of Evangelista v.
Earnshaw, 57 Phil., 255- 261, but evidently the quotation of said provision was made by the
writer of the decision under a mistaken conception of its purview and is an obiter dictum, for
it was not necessary for the decision rendered. The popular meeting or assemblage
intended to be held therein by the Communist Party of the Philippines was clearly an
unlawful one, and therefore the Mayor of the City of Manila had no power to grant the
permit applied for. On the contrary, had the meeting been held, it was his duty to have the
promoters thereof prosecuted for violation of section 844, which is punishable as
misdemeanor by section 1262 of the Revised Ordinances of the City of Manila. For,
according to the decision, "the doctrine and principles advocated and urged in the
Constitution and by-laws of the said Communist Party of the Philippines, and the speeches
uttered, delivered, and made by its members in the public meetings or gatherings, as above
stated, are highly seditious, in that they suggest and incite rebelious conspiracies and
disturb and obstruct the lawful authorities in their duty."cralaw virtua1aw library

The reason alleged by the respondent in his defense for refusing the permit is, "that there is
a reasonable ground to believe, basing upon previous utterances and upon the fact that
passions, specially on the part of the losing groups, remains bitter and high, that similar
speeches will be delivered tending to undermine the faith and confidence of the people in
their government, and in the duly constituted authorities, which might threaten breaches of
the peace and a disruption of public order." As the request of the petition was for a permit
"to hold a peaceful public meeting," and there is no denial of that fact or any doubt that it
was to be a lawful assemblage, the reason given for the refusal of the permit can not be
given any consideration. As stated in the portion of the decision in Hague v. Committee on
Industrial Organization, supra, "It does not make comfort and convenience in the use of
streets or parks the standard of official action. It enables the Director of Safety to refuse the
permit on his mere opinion that such refusal will prevent riots, disturbances or disorderly
assemblage. It can thus, as the record discloses, be made the instrument of arbitrary
suppression of free expression of views on national affairs, for the prohibition of all speaking
will undoubtedly ’prevent’ such eventualities." To this we may add the following, which we
make our own, said by Mr. Justice Brandeis in his concurring opinion in Whitney v.
California, 71 U. S. (Law. ed.) , 1105-1107:jgc:chanrobles.com.ph

"Fear of serious injury cannot alone justify suppression of free speech and assembly. Men
feared witches and burned women. It is the function of speech to free men from the
bondage of irrational fears. To justify suppression of free speech there must be reasonable
ground to fear that serious evil will result if free speech is practiced. There must be
reasonable ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious one . . .

"Those who won our independence by revolution were not cowards. They did not fear
political change. They did not exalt order at the cost of liberty. . . .

"Moreover, even imminent danger cannot justify resort to prohibition of these functions
essential effective democracy, unless the evil apprehended is relatively serious. Prohibition
of free speech and assembly is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to a society. . . . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen, the deterrents
ordinarily to be applied to prevent crimes are education and punishment for violations of the
law, not abridgment of the rights of free speech and assembly." Whitney v. California, U. S.
Sup. Ct. Rep., 71 Law., ed., pp. 1106-1107.)

In view of all the foregoing, the petition for mandamus is granted and, there appearing no
reasonable objection to the use of the Plaza Miranda, Quiapo, for the meeting applied for,
the respondent is ordered to issue the corresponding permit, as requested. So ordered.

Moran, C.J., Pablo, Perfecto, Bengzon and Briones, JJ., concur.

Separate Opinions

PARAS, J., concurring:chanrob1es virtual 1aw library

The subject-matter of the petition is not new in this jurisdiction. Under Act No. 2774,
section 4, amending section 2434, paragraph (m) of the Revised Administrative Code, the
Mayor has discretion to grant or deny the petition to hold the meeting. (See Evangelista v.
Earnshaw, 57 Phil., 255.) And, in the case of U. S. v. Apurado, 7 Phil., 422, 426, this Court
said:jgc:chanrobles.com.ph

"It is rather to be expected that more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary, because on such occasions
feeling is always wrought to a high pitch of excitement, and the greater the grievance and
the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted to seize upon
every instance of such disorderly conduct by individual members of a crowd as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities, then
the right to assemble and to petition for redress of grievances would become a delusion and
snare and the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the severest and most
unmerited punishment, if the purposes which they sought to attain did not happen to be
pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished therefor."cralaw
virtua1aw library

The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista
Party in the House of Representatives; he was the chief campaigner of the said party in the
last elections. As the petition comes from a responsible party, in contrast to Evangelista’s
Communist Party which was considered subversive, I believe that the fear which caused the
Mayor to deny it was not well founded and his action was accordingly far from being a
sound exercise of his discretion.

BRIONES, M., conforme:chanrob1es virtual 1aw library

En nombre del Partido Nacionalista y de los grupos oposicionistas aliados, Cipriano P.
Primicias, director general de campaña de las minorias coaligadas en las ultimas elecciones
y "Floor Leader" de dichas minorias en la Camara de Representantes, solicito del Alcalde de
Manila en comunicacion de fecha 14 de Noviembre, 1947, permiso "para celebrar un mitin
publico en la Plaza Miranda el Domingo, 16 de Noviembre, 1947, desde las 5:00 p.m. hasta
la 1:00 a.m., a fin de pedir al gobierno el remedio de ciertos agravios." Tambien se pedia en
la comunicacion licencia para usar la plataforma ya levantada en dicha Plaza.

El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso
tanto para la celebracion del mitin como para el uso de la plataforma, "en la inteligencia de
que no se pronunciaran discursos subversivos, y ademas, de que usted (el solicitante) sera
responsable del mantenimiento de la paz y orden durante la celebracion del mitin."cralaw
virtua1aw library

Sin embargo, al dia siguiente, 15 de Noviembre, el Alcalde Valeriano E. Fugoso revoco el

permiso concedido, expresandose los motivos de la revocacion en su carta de tal fecha
dirigida al Rep. Primicias.

"Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que despues de haber
leido los periodicos metropolitanos da esta mañana en que aparece que vuestro mitin va a
ser un ’rally’ de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes
electorales perpetrados en varias partes de Filipinas para anular la voluntad popular, por la
presente se revoca dicho permiso.

"Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran daño en dicho ’rally’
considerando que las pasiones todavia no se han calmado y la tension sigue alta como
resultado de la ultima contienda politica.

"Segun los mismos periodicos, delegados venidos de provincias y estudiantes de las

universidades locales participaran en el ’rally,’ lo cual, a mi juicio, no haria mas que causar
disturbios, pues no se puede asegurar que concurriran alli solamente elementos de la
oposicion. Desde el momento en que se mezclen entre la multitud gentes de diferentes
matices politicos, que es lo que probablemente va a ocurrir, el orden queda en peligro una
vez que al publico se le excite, como creo que sera excitado, teniendo en cuenta los fines
del mitin tal como han sido anunciados en los periodicos mencionados.

"Se dice que los resultados de las ultimas elecciones seran protestados. No hay base para
este proceder toda vez que los resultados todavia no han sido oficialmente anunciados.

"Por tanto — termina el Alcalde su orden revocatoria — la accion de esta oficina se toma en
interes del orden publico y para prevenir la perturbacion de la paz en Manila."cralaw
virtua1aw library

De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que
expida inmediatamente el permiso solicitado. Se pide tambien que ordenemos al Procurador
General para que investigue la fase criminal del caso y formule la accion que justifiquen las
circunstancias.

Dada la premura del asunto, se llamo inmediatamente a vista arguyendo extensamente los
abogados de ambas partes ante esta Corte en sus informes orales. 1

El recurso se funda, respecto de su aspecto civil, en el articulo III, seccion 1, inciso 8 de la

Constitucion de Filipinas, el cual preceptua "que no se aprobara ninguna ley que coarte la
libertad de la palabra, o de la prensa, o el derecho del pueblo de reunirse pacificamente y
dirigir petiticiones al gobierno para remedio de sus agravios." Con respecto al posible
aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado, el cual
dispone que "la pena de prision correccional en su periodo minimo, se impondra al
funcionario publico o empleado que, sin fundamento legal, prohibiere o interrumpiere una
reunion pacifica, o disolviere la misma."cralaw virtua1aw library

La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten
como guardian legal de las plazas, calles y demas lugares publicos. Se alega que como
Alcalde de la Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la
Plaza Miranda, que es una plaza publica, para la celebracion de un mitin o reunion, de
conformidad con las exigencias del interes general tal como el las interpreta.
Especificamente se citan dos disposiciones, a saber: el articulo 2434 (b), inciso (m) del
Codigo Administrativo Revisado, y el articulo 1119, capitulo 118 de la Compilacion de las
Ordenanzas Revisadas de la Ciudad de Manila, edicion de 1927. El articulo aludido del
Codigo Administrativo Revisado se lee como sigue:chanrob1es virtual 1aw library

x x x

"(m) To grant and refuse municipal license or permits of all classes and to revoke the same
for violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinance are being committed under the protection of such licenses or in the
premises in which the business for which the same have been granted is carried on, or for
any other good reason of general interest." La ordenanza municipal indicada reza lo
siguiente:chanrob1es virtual 1aw library

La ordenanza municipal indicada reza lo siguiente:jgc:chanrobles.com.ph

"SEC. 1119. Free for use of public. — The streets and public places of the city shall be kept
free and clear for the use of the public, and the sidewalks and crossings for the pedestrians,
and the same shall only be used or occupied for other purposes as provided by the
ordinance or regulation: Provided, That the holding of athletic games, sports, or exercises
during the celebration of national holidays in any streets or public places of the city and on
the patron saint day of any district in question, may be permitted by means of a permit
issued by the Mayor, who shall determine the streets or public places, or portions thereof,
where such athletic games, sports, or exercises may be held: And provided, further, That
the holding of any parade or procession in any streets or public places is prohibited unless a
permit therefor is first secured from the Mayor, who shall, on every occasion, determine or
specify the streets or public places for the formation, route, and dismissal of such parade or
procession: And provided, finally, That all applications to hold a parade or procession shall
be submitted to the Mayor not less than twenty-four hours prior to the holding of such
parade or procession."cralaw virtua1aw library

Parece conveniente poner en claro ciertos hechos. El mitin o "rally" de indignacion de que
habla el Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la
peticion del recurrente ni en ningun documenmento o manifestacion verbal atribuida al
mismo, sino solamente en las columnas informativas de la prensa metropolitana. El
recurrente admite, sin embargo, que el objeto del mitin era comunicar al pueblo la infinidad
de telegramas y comunicaciones que como jefe de campaña de las oposiciones habia
recibido de varias partes del archipielago denunciando tremendas anomalias, escandalosos
fraudes, actos vandalicos de terrorismo politico, etc., etc., ocurridos en las elecciones de 11
de Noviembre; llamar la atencion del Gobierno hacia tales anomalias y abusos; y pedir su
pronta, eficaz y honrada intervencion para evitar lo que todavia se podia evitar, y con
relacion a los hechos consumados urgir la pronta persecucion y castigo inmediato de los
culpables y malhechores. De esto resulta evidente que el objeto del mitin era
completamente pacifico, absolutamente legal. No hay ni la menor insinuacion de que el
recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de
utilizar el mitin para derribar violentamente al presente gobierno, o provocar una rebelion o
siquiera un motin. En realidad, teniendo en cuenta las serias responsabilidades del
recurrente como jefe de campaña electoral de las minorias aliadas y como "Floor Leader" en
el Congreso de dichas minorias, parecia que esta consideracion debia pesar decisivamente
en favor de la presuncion de que el mitin seria una asamblea pacifica, de ciudadanos
conscientes, responsables y amantes de la ley y del orden. 2

Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las

Ordenanzas Revisadas de Manila no figura el mitin entre las materias reglamentadas, sino
solo la procesion o parada por las calles. Esto demuestra, se sostiene, que cuando se trata
de un mitin en una plaza o lugar publico, la concesion del permiso es ineludible y el Alcalde
no tiene ninguna facultad discrecional. Pareceme, sin embargo, que no es necesario llegar a
este extremo. Creo no debe haber inconveniente en admitir que el mitin esta incluido en la
reglamentacion, por razones de conveniencia publica. Verbigracia, es perfectamente licito
denegar el permiso para celebrar un mitin en una plaza publica en un dia y una hora
determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar a
otro a la misma hora. La prevencion de esta clase de conflictos es precisamente uno de los
ingredientes que entran en la motivacion de la facultad reguladora del Estado o del
municipio con relacion al uso de calles, plazas y demas lugares publicos. Por ejemplo, es
tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el
movimiento general del trafico tanto de peatones como de vehiculos. Estas consideraciones
de comfort y conveniencia publica son por lo regular la base, el leit-motif de toda ley u
ordenanza encaminada a reglamentar el uso de parques, plazas y calles. Desde luego que la
regla no excluye la consideracion a veces de la paz y del buen orden, pero mas adelante
veremos que este ultimo, para que sea atendible, requiere que exista una situacion de
peligro verdadero, positivo, real, claro, inminente y substancial. La simple conjetura, la
mera aprension, el temor mas o menos exagerado de que el mitin, asamblea o reunion
pueda ser motivo de desorden o perturbacion de la paz no es motivo bastante para denegar
el permiso, pues el derecho constitucional de reunirse pacificamente, ya para que los
ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre
ellos, ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos
agravios, es infinitamente superior a toda facultad reguladora en relacion con el uso de los
parques, plazas y calles.

La cuestion, por tanto, que tenemos que resolver en el presente recurso es bien sencilla.
¿Tenia razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente, ora
bajo los terminos de la ordenanza pertinente, ora bajo la carta organica de Manila, y sobre
todo, bajo el precepto categorico, terminante, expresado en el inciso 8, seccion 1, del
Articulo III de la Constitucion? ¿No constituye la denegacion del permiso una seria
conculcacion de ciertos privilegios fundamentales garantizados por la Constitucion al
ciudadano y al pueblo?

Resulta evidente, de autos, que el recurrido denego el permiso bajo lo que el mismo llama
"all-pervading power of the state to regulate," temiendo que el mitin solicitado iba a poner
en peligro la paz y el orden publico en Manila. No se fundo la denegacion en razones de
"comfort" o conveniencia publica, vgr., para no estorbar el trafico, o para prevenir un
conflicto con otro mitin ya previamente solicitado y concedido, sino en una simple conjetura,
en un mero temor o aprension — la aprension de que, dado el tremendo hervor de los
animos resultante de una lucha electoral harto reñida y apasionada, un discurso violento,
una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. La cuestion
en orden es la siguiente: ¿se puede anular o siquiera poner en suspenso el derecho
fundamentalisimo de reunion o asamblea pacifica, garantizado por la Constitucion, por
razon de esta clase de conjetura, temor o aprension? Es obvio que la contestacion tiene que
ser decididamente negativa. Elevar tales motivos a la categoria de razon legal equivaldria
practicamente a sancionar o legitimar cualquier pretexto, a colocar los privilegios y
garantias constitucionales a merced del capricho y de la arbitrariedad. Si la vigencia de tales
privilegios y garantias hubiera de depender de las suspicacias, temores, aprensiones, o
hasta humor del gobernante, uno podria facilmente imaginar los resultados desastrosos de
semejante proposicion; un partido mayoritario dirigido por caudillos y liders sin escrupulos y
sin conciencia podria facilmente anular todas las libertades, atropellar todos los derechos
incluso los mas sagrados, ahogar todo movimiento legitimo de protesta o peticion,
estrangular, en una palabra, a las minorias, las cuales — como sabe todo estudiante de
ciencia politica — en el juego y equilibrio de fuerzas que integran el sistema democratico
son tan indispensables como las mayorias. ¿Que es lo que todavia podria detener a un
partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de
sus adversarios si se le dejara abiertas las puertas para que, invocando probables peligros o
amagos de peligro, pudiera de una sola plumada o de un solo gesto de repulsa anular o
poner en suspenso los privilegios y garantias constitucionales? ¿No seria esto retornar a los
dias de aquel famoso Rey que dijo: "El Estado soy yo," o de aquel notorio cabecilla politico
de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto
pronunciamiento: "I am the only Constitution around here" ? Es inconcebible que la facultad
de reglamentar o el llamado poder de policia deba interpretarse en el sentido de justificar y
autorizar la anulacion de un derecho, privilegio o garantia constitucional. Sin embargo, tal
seria el resultado si en nombre de un concepto tan vago y tan elastico como es el "interes
general" se permitiera in terdecir la libertad de la palabra, de la cual los derechos de
reunion y de peticion son nada mas que complemento logico y necesario. Una mujer famosa
de Francia 3 en la epoca del terror, momentos antes de subir al cadalso y colocar su
hermoso cuello bajo la cuchilla de la guillotina, hizo historica esta exclamacion:" ¡Libertad,
cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso
legitimando la accion del recurrido y consiguientemente autorizando la supresion de los
mitines so pretexto de que la paz y el orden publico corren peligro con ellos, un
desengañado de la democracia en nuestro pais acaso exprese entonces su suprema
desilusion parafraseando la historica exclamacion de la siguiente manera:" ¡Interes general,
paz, orden publico, cuantos atentados se cometen en vuestro nombre contra la libertad!"

El consenso general de las autoridades en los paises constitucionalmente regidos como

Filipinas, particularmente en Estados Unidos, es que el privilegio del ciudadano de usar los
parques, plazas y calles para el intercambio de impresiones y puntos de vista sobre
cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que se puede
regular, pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague
v. Committee for Industrial Organization, 307 U. S., 515-517). Este asunto, planteado y
decidido en 1938, ha venido a ser clasico en la jurisprudencia americana sobre casos del
mismo tipo que el que nos ocupa. La formidable asociacion obrera Committee for Industrial
Organization conocida mas popularmente por la famosa abreviatura CIO, planteo una queja
ante los tribunales de New Jersey contra las autoridades de Jersey City, (a) atacando, por
fundamentos constitucionales, la validez de una ordenanza municipal que regulaba y
restringia el derecho de reunion; y (b) tachando de inconstitucionales los metodos y medios
en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades.

Los hechos del caso, brevemente expuestos, son, a saber: La CIO trataba de celebrar
mitines y asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos
de vista sobre la "National Labor Relations Act." Las autoridades de la ciudad, comenzando
por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de New Jersey,
rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa
alegacion de que los miembros de la organizacion obrera solicitante eran comunistas y del
orden publico corria peligro de grave perturbacion; es decir, casi, casi la misma alegacion
que en el presente caso. La denegacion de la licencia se fundaba en una ordenanza
municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea
pacifica.

Los tribunales de New Jersey, declarando inconstitucionales la ordenanza en cuestion y los

metodos por los cuales se trataba de poner en vigor, sentenciaron a favor de la CIO
permitiendole celebrar los mitines solicitados. Elevado el asunto en casacion e la Corte
Suprema Federal, esta confirmo la sentencia con solo una ligera modificacion. Entre otros
pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles,
parques y plazas, desde tiempo inmemorial los mismos siempre se han considerado como
un fideicomiso para uso del publico, y desde tiempos remotos que la memoria no alcanza se
han usado siempre para fines de reunion y de intercambio de impresiones y puntos de vista
entre los ciudadanos, asi como para la libre discusion de los asuntos publicos; (b) que el uso
de las calles y plazas publicas para tales fines ha sido siempre, desde la antiguedad, una
parte importante y esencial de los privilegios, inmunidades, derechos y libertades de los
ciudadanos; (c) que el privilegio del ciudadano de los Estados Unidos de usar las calles,
plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones
nacionales puede ser regulado en interes de todos; es en tal sentido absoluto pero relativo,
y debe ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia
con la paz y el buen orden; pero no puede ser coartado o denegado so pretexto y forma de
regulacion; (d) que el tribunal inferior estuvo acertado al declarar invalida la ordenanza en
su faz, pues no hace del "comfort" o conveniencia en el uso de calles y plazas la norma y
patron de la accion official; por el contrario, faculta al Director de Seguridad a rehusar el
permiso en virtud de su simple opinion de que la denegacion es para prevenir motines,
trastornos o reuniones turbulentas y desordenadas; (e) que, de esta manera, y conforme lo
demuestra el record, la denegacion puede ser utilizada como instrumento para la supresion
arbitraria de la libre expression de opiniones sobre asuntos nacionales, pues la prohibicion
de hablar producira indudablemente tal efecto: (f) y, por ultimo, que no puede echarse
mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de mantener
el orden en relacion con el ejercicio del derecho. En otras palabras, traduciendo literalmente
la fraseologia de la sentencia, aun a riesgo de incurrir en un anglicismo, "no puede hacerse
de la supresion official incontrolada del privilegio un sustituto del deber de mantener el
orden en relacion con el ejercicio del derecho." He aqui ad verbatim la
doctrina:jgc:chanrobles.com.ph

"5. Regulation of parks and streets. — "Wherever the title of streets and parks may rest,
they have immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient
times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of the citizen of the United States to use the streets and parks for communication
of views on national questions may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but it must not in the guise of regulation be
abridged or denied. We think the court below was right in holding the ordinance . . . void
upon its face. It does not make comfort or convenience in the use of streets or parks the
standard of official action. It enables the Director of Safety to refuse a permit on his mere
opinion that such refusal will prevent riots, disturbances, or disorderly assemblage. It can
thus, as the record discloses, be made the instrument of arbitrary suppression of free
expression of views on national affairs for the prohibition of all speaking will undoubtedly
’prevent’ such eventualities. But uncontrolled official suppression of the privilege cannot be
made a substitute for the duty to maintain order in connection with the exercise of the
right." (Hague v. Committee for Industrial Organization, 307 U. S. 496, 515-516.)

Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra
Earnshaw, 57 Jur. Fil., 255, como un precedente en apoyo de la accion del Alcalde
recurrido. Pero la similitud es solo en el hecho de que el entonces Alcalde D. Tomas
Earnshaw tambien revoco el permiso previamente concedido al partido comunista que
representaba Crisanto Evangelista para celebrar mitines en Manila, pero las circunstancias
en ambos casos son enteramente diferentes. El Alcalde Earnshaw revoco el permiso
despues de una minuciosa investigacion en que se habian encontrado pruebas indubitables
no solo de que en los estatutos y documentos del partido comunista se preconizaba como
uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas — gobierno
que ellos calificaban de imperialista y capitalistico — sino que de hecho en mitines
celebrados con anterioridad los comunistas habian pronunciado discursos clara y
positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para
liberar, segun ellos, al proletariado filipino de las garras del imperialismo capitalista. La
accion, por tanto, del Alcalde Earnshaw se fundo no en una simple conjetura, en un mero
temor o aprension, sino en la existencia de un peligro inminente, claro, real, sustantivo —
ingrediente unico y excepcionalisimo que permite una salvedad suspensiva singularisima en
el ejercicio de los privilegios constitucionales de que se trata.

¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. Ni siquiera se ha
hecho la mas pequeña insinuacion de que las minorias coaligadas en cuyo nombre se ha
pedido la celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por
metodos y procedimientos violentos. El mismo Fiscal Villamor, en su informe oral, admitio
francamente la legalidad de la coalicion y de sus fines. Podemos tomar conocimiento judicial
de que esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas
presentando candidatos para todos los cargos — nacionales, provinciales y locales, y de que
su candidatura senatorial triunfo en 21 provincias de las 50 que componen el mapa
electoral, y en 5 ciudades con carta especial de las 8 que existen, incluyendose entre dichas
5 la de Manila, capital del archipielago.

Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en
el caso de Evangelista contra Earnshaw, sino que por el contrario propugna la balota, no la
bala, como el instrumento normal y democratico para cambiar los gobiernos y las
administraciones, lo demuestra, ademas del hecho ya apuntado de que lucho en las ultimas
elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los
medios de que disponia frente a la natural superioridad del partido gobernante, lo
demuestra, repito, la circunstancia de que despues de hechas las votaciones y mientras se
estaban contando los votos y cuando vio que, segun ella, se habia escamoteado o se estaba
escamoteando la voluntad popular en varias partes mediante engaños, abusos y anomalias
de diferentes clases, no busco la violencia ni recurrio a la accion directa para hallar remedio
a sus agravios o vengarlos, sino que trato de cobijarse bajo la Constitucion reuniendo al
pueblo en asamblea magna al aire libre para comunicar y discutir sus quejas y recabar del
gobierno el correspondiente remedio. Y esto lo hizo la coalicion oficialmente, con todas las
rubricas del protocolo, formulando la peticion del mitin el hombre que mejor podia
representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos — el
recurrente en este caso, cuya solvencia moral y politica esta doblemente garantida por su
condicion de lider de las minorias en el Congreso y jefe de campaña de las mismas en las
pasadas elecciones. ¿Que mejor prueba de legalidad y de propositos pacificos y ordenados?
Por tanto, las circunstancias han venido a situar al gobierno en una encrucijada: por un
lado, el camino angosto de la represion, de una politica de fuerza y de cordon ferreo
policiaco; por otro lado, la amplia avenida de la libertad, una politica que consista en abrir
espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la
indignacion del pueblo, previniendo de esta manera que los vapores mal reprimidos hagan
estallar la caldera, o que la desesperacion lo arrastre a conspirar en la sombra o a confiar su
suerte a los azares de una cruenta discordia civil. Creo que entre ambas politicas la eleccion
no es dudosa.

Se alega que antes del 11 de Noviembre, dia de las elecciones, el Alcalde recurrido habia
concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en
diferentes sitios de Manila; que en dichos mitines se habian pronunciado discursos
altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios
funcionarios del gobierno nacional y de la Ciudad de Manila, entre ellos el Presidente de
Filipinas, el Presidente del Senado y el mismo recurrido, suscitandose contra ellos la
animadversion y el desprecio del pueblo mediante la acusacion de que han estado
malversando propiedades y fondos publicos con grave detrimento del bienestar e interes
generales; que, dado este antecedente, habia motivo razonable para creer que semejantes
discursos se pronunciarian de nuevo, minandose de tal manera la fe y la confianza del
pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias
perturbaciones, teniendo en cuenta la temperatura elevadisima de las pasiones, sobre todo
de parte de los grupos perdidosos y derrotados.

Estas alegaciones son evidentemente insostenibles. Darles valor equivaldria a instituir aqui
un regimen de previa censura, el cual no solo es extraño sino que es enteramente repulsivo
e incompatible con nuestro sistema de gobierno. Nuestro sistema, mas que de prevencion,
es de represion y castigo sobre la base de los hechos consumados. En otras palabras, es un
sistema que permite el amplio juego de la libertad, exigiendo, sin embargo, estricta cuenta
al que abusase de ella. Este es el espiritu que informa nuestras leyes que castigan
criminalmente la calumnia, la difamacion oral y escrita, y otros delitos semejantes. Y
parafraseando lo dicho en el citado asunto de Hague v. Committee for Industrial
Organization, la supresion incontrolada del privilegio constitucional no puede utilizarse como
sustituto de la operacion de dichas leyes.

Se temia — dice el recurrido en su contestacion — que la probable virulencia de los

discursos y la fuerte tension de los animos pudiesen alterar seriamente la paz y el orden
publico. Pero — cabe preguntar — ¿de cuando aca la libertad, la democracia no ha sido un
peligro, y un peligro perpetuo? En realidad, de todas las formas de gobierno la democracia
no solo es la mas dificil y compleja, sino que es la mas peligrosa. Rizal tiene en uno de sus
libros inmortales una hermosa imagen que es perfectamente aplicable a la democracia.
Puede decirse que esta es como la mar: serena, inmovil, sin siquiera ningun rizo que
arrugue su superficie, cuando no lo agita ningun viento. Pero cuando sopla el huracan —
lease, Vientos de la Libertad — sus aguas se alborotan, sus olas se encrespan, y entonces
resulta horrible, espantosa, con la espantabilidad de las fuerzas elementales que se
desencadenan liberrimamente.

¿Ha dejado, sin embargo, el hombre de cruzar los mares tan solo porque pueden
encresparse y enfurecerse a veces? Pues bien; lo mismo puede decirse de la democracia:
hay que tomarla con todos sus inconvenientes, con todos sus peligros. Los que temen la
libertad no merecen vivirla. La democracia no es para pusilanimes. Menos cuando de la
pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo.
Porque entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. Ejemplo:
los Zares de Rusia. Y ya se sabe como terminaron.

El Magistrado Sr. Carson describio con mano maestra los peligros de la libertad y
democracia y previno el temor a ellos con las luminosas observaciones que se transcriben a
continuacion, expuestas en la causa de Estados Unidos contra Apurado, 7 Fur. Fil., 440
(1907), a saber:jgc:chanrobles.com.ph

"Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para
protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos
siempre estan excesivamente exaltados, y mientras mayor sea el agravio y mas intenso el
resentimiento, tanto menos perfecto sera por regla general el control disciplinario de los
directores sobre sus secuaces irresponsables. Pero si se permitiese al ministerio fiscal
agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una
multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y
tumultuoso contra las autoridades, entonces el derecho de asociacion, y de pedir reparacion
de agravios seria completamente ilusorio, y el ejercicio de ese derecho en la ocasion mas
propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella, al mas
severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los
representantes del ministerio fiscal. Si en tales asociaciones ocurren casos de desorden
debe averiguarse quienes son los culpables y castigarseles por este motivo, pero debe
procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la
sedicion, y entre la reunion esencialmente pacifica y un levantamiento tumultuoso."cralaw
virtua1aw library

En el curso de los informes se pregunto al Fiscal, defensor del recurrido, si con motivo de
los discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la
oposicion antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa.
Como se dice mas arriba, en el mitin monstruo que despues se celebro en virtud de nuestra
decision en el presente asunto tampoco ocurrio nada. ¿Que demuestra esto? Que los
temores eran exagerados, por no llamarlos fantasticos; que el pueblo de Manila, con su
cordura, tolerancia y amplitud de criterio, probo ser superior a las aprensiones, temores y
suspicacias de sus gobernantes.

La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las

garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes — el
de reunion y peticion. Se trata de derechos demasiado sagrados, harto metidos en el
corazon y alma de nuestro pueblo para ser tratados negligentemente, con un simple
encogimiento de hombros. Fueron esas libertades las que inspiraron a nuestros antepasados
en sus luchas contra la opresion y el despotismo. Fueron esas libertades la base del
programa politico de los laborantes precursores del ’96. Fueron esas libertades las que
cristalizaron en la carta organizacional de Bonifacio, generando luego el famoso Grito de
Balintawak. Fueron esas libertades las que despues informaron los documentos politicos de
Mabini y la celebre Constitucion de Malolos. Y luego, durante cerca de medio siglo de
colaboracion filipino — americana, fueron esas mismas libertades la esencia de nuestras
instituciones, la espina dorsal del regimen constitucional y practicamente republicano aqui
establecido. Nada mejor, creo yo, para historiar el proceso de esas libertades que los
atinados y elocuentes pronunciamientos del Magistrado Sr. Malcolm en la causa de Estados
Unidos contra Bustos, 37 Jur. Fil., 764 (1918). Es dificil mejorarlos; asi que opto por
transcribirlos ad verbatim a continuacion:jgc:chanrobles.com.ph

"Hojeando las paginas de la historia, no decimos nada nuevo al afirmar que la libertad de la
palabra, tal y como la han defendido siempre todos los paises democraticos, era
desconocida en las Islas Filipinas antes de 1900. Por tanto, existia latente la principal causa
de la revolucion. Jose Rizal en su obra ’Filipinas Dentro de Cien Años’ (paginas 62 y
siguientes) describiendo ’las reformas sine quibus non,’ en que insistian los filipinos,
dijo:jgc:chanrobles.com.ph

"El ministro, . . . que quiera que sus reformas sean reformas, debe principiar por declarar la
prensa libre en Filipinas, y por crear diputados filipinos.

"Los patriotas filipinos que estaban en España, por medio de las columnas de La Solidaridad
y por otros medios, al exponer los deseos del Pueblo Filipino, pidieron invariablemente la
’libertad de prensa, de cultos y de asociacion.’ (Vease Mabini, ’La Revolucion Filipina.’) La
Constitucion de Malolos, obra del Congreso Revolucionario, en su Bill de Derechos,
garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y
de peticion.

"Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una
reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida, debe
ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia
el derecho a la libertad.

"Despues sigue el periodo de la mutua colaboracion americano-filipina. La Constitucion de

los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la
libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto,
no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del
Presidente McKinley, sus Instrucciones a la Segunda Comision de Filipinas, de 7 de abril de
1900, que sientan el siguiente inviolable principio:jgc:chanrobles.com.ph

"Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los
derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para
remedio de sus agravios."cralaw virtua1aw library

"El Bill de Filipinas, o sea la Ley del Congreso de 1. ° de Julio de 1902, y la Ley Jones, o sea
la Ley del Congreso de 29 de Agosto de 1916, que por su naturaleza son leyes organicas de
las Islas Filipinas, siguen otorgando esta garantia. Las palabras entre comillas no son
extrañas para los estudiantes de derecho constitucional, porque estan calcadas de la
Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio
antes de otorgar su aprobacion a la Constitucion.

"Mencionamos los hechos expuestos tan solo para deducir la afirmacion, que no debe
olvidarse por un solo instante, de que las mencionadas garantias constituyen parte
integrante de la Ley Organica — La Constitucion — de las Islas Filipinas.

"Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera
palabreria. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de
aplicacion a los grandes casos constitucionales de Inglaterra y America. (Kepner v. U. S.
[1904], 195 U. S., 100; Serra v. Mortiga [1917], 214 U. S., 470.) Y ¿cuales son estos
principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. Pero entre
aquellos estan los siguientes:jgc:chanrobles.com.ph

"Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion

plena de los asuntos publicos. Completa libertad de comentar los actos de los funcionarios
publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra. La penetrante
incision de la tinta libra a la burocracia del absceso. Los hombres que se dedican a la vida
publica podran ser victimas de una acusacion injusta y hostil; pero podra calmarse la herida
con el balsamo que proporciona una conciencia tranquila. El funcionario publico no debe ser
demasiado quisquilloso con respecto a los comentarios de sus actos oficiales. Tan solo en
esta forma puede exaltarse la mente y la dignidad de los individuos. Desde luego que la
critica no debe autorizar la difamacion. Con todo, como el individuo es menos que el Estado,
debe esperarse que sobrelleve la critica en beneficio de la comunidad. Elevandose a mayor
altura que todos los funcionarios o clases de funcionarios, que el Jefe Ejecutivo, que la
Legislatura, que el Poder Judicial — que cualesquiera o sobre todas las dependencias del
Gobierno — la opinion publica debe ser el constante manantial de la libertad y de la
democracia. (Veanse los casos perfectamente estudiados de Wason v. Walter, L. R. 4 Q. B.,
73, Seymour v. Butterworth, 3 F. & F., 372; The Queen v. Sir R. Carden, 5 Q. B. D., 1.)

Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos
celosa que la antigua colonia en la tenencia y conservacion de esas libertades, sino que, por
el contrario, tiene que ser muchisimo mas activa y militante. Obrar de otra manera seria
como borrar de una plumada nuestras mas preciosas conquistas en las jornadas mas
brillantes de nuestra historia. Seria como renegar de lo mejor de nuestro pasado: Rizal;
Marcelo H. del Pilar, Bonifacio, Mabini, Quezon, y otros padres inmortales de la patria. Seria,
en una palabra, como si de un golpe catastrofico se echara abajo la recia fabrica de la
democracia filipina que tanta sangre y tantos sacrificios ha costado a nuestro pueblo, y en
su lugar se erigiera el tinglado de una dictadura de opera bufa, al amparo de caciquillos y
despotillas que pondrian en ridiculo el pais ante el mundo . . . Es evidente que no hemos
llegado a estas alturas, en la trabajosa ascension hacia la cumbre de nuestros destinos,
para permitir que ocurra esa tragedia.

No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales

que la coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del
gobierno y del pueblo el propio y correspondiente remedio. Pudieran ser reales o pudieran
ser imaginarios, en todo o en parte. Pero de una cosa estamos absolutamente seguros y es
que la democracia no puede sobrevivir a menos que este fundada sobre la base de un
sufragio efectivo, sincero, libre, limpio y ordenado. El colegio electoral es el castillo, mejor
todavia, el baluarte de la democracia. Suprimid eso, y la democracia resulta una farsa.

Asi que todo lo que tienda a establecer un sufragio efectivo 4 no solo no debe ser reprimido,
sino que debe ser alentado. Y para esto, en general para la salud de la republica, no hay
mejor profilaxis, no hay mejor higiene que la critica libre, la censura desembarazada.
Solamente se pueden corregir los abusos permitiendo que se denuncien publicamente sin
trabas sin miedo. 5 Esta es la mejor manera de asegurar el imperio de la ley por encima de
la violencia.

HILADO, J., dissenting:chanrob1es virtual 1aw library

Because the constitutional right of assembly and petition for redress of grievances has been
here invoked on behalf of petitioner, it has been considered doubly necessary to expound at
length the grounds of my dissent. We are all ardent advocates of this right, whenever and
wherever properly exercisable. But, in considering the legal problem here presented
serenely and dispassionately, as I had to, I arrived at a different conclusion from that of the
majority.

(a) Right not absolute but subject to regulation. — It should be recognized that this right is
not absolute and is subject to reasonable regulations. (Philippine Constitutional Law by
Malcolm and Laurel, 3d ed., p. 407; Commonwealth v. Abrahams, 156 Mass., 57, 30 N.E.
79.)
Messers. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one.
Assemblies are subject to reasonable regulations."cralaw virtua1aw library

In the above cited case of Commonwealth v. Abrahams, which is cited in support of the text
on page 407 of the above cited work on Philippine Constitutional Law by Malcolm and
Laurel, the Supreme Judicial Court of Massachusetts considered and decided a case
involving a regulation by the Board of Park Commissioners forbidding all persons "to make
orations, harangues, or loud outcries" in a certain park, under penalty of $20, except upon
prior consent of the board. The defendant requested permission to deliver an oration in the
park, which was refused by the board, and thereafter entered the park, and delivered an
"oration or harangue" about ten or fifteen minutes in length. In a criminal trial of said
defendant for violating the rules promulgated by the Board of Park Commissioners, said
rules were held valid and reasonable, and not inconsistent with article 19 of the Bill of
Rights (of the Massachusetts Constitution), providing that "the people have a right, in an
orderly and peaceable manner, to assemble to consult upon the common good, give
instructions to their representatives, and to request of the legislative body, by the way of
addresses, petitions, or remonstrances, redress of the wrongs done them, and of the
grievances they suffer." In that case the defendant admitted that the people would not have
the right to assemble for the purposes specified in the public streets, and might not have
such right in the public gardens or on the common, because such an assembly would or
might be inconsistent with the public use for which these places are held. And the Supreme
Court of Massachusetts said:jgc:chanrobles.com.ph

". . . . The same reasons apply to any particular park. The parks of Boston are designed for
the use of the public generally; and whether the use of any park or a part of any park can
be temporarily set aside for the use of any portion of the public, is for the park
commissioners to decide, in the exercise of a wise discretion."cralaw virtua1aw library

In the above-quoted case it appears from the statement of facts preceding the opinion that
within the limits of Franklin Park, there involved, were large areas not devoted to any
special purpose and not having any shrubbery that would be injured by the gathering
thereon of a large concourse of people; that defendant’s speech contained nothing
inflammatory or seditious, and was delivered in an ordinary oratorical tone; that at the close
of the oration the audience quietly dispersed; and that no injury of any kind was done to the
park. Still, it was held that the regulation under which the Board of Park Commissioners
denied the permission to deliver said oration requested by the defendant was valid and was
not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the
people the "right, in an orderly and peaceable manner, to assemble to consult upon the
common good, give instructions to their representatives, and to request of the legislative
body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done
them, and of the grievances they suffer."cralaw virtua1aw library

In the case at bar, the Mayor of Manila had the duty and the power, inter alia, "to grant and
refuse municipal . . . permits of all classes . . . for any (other) good reason of general
interest" (Rev. Ad. Code, section 2434 [b]-[m]; italics ours); and "to comply with and
enforce and give the necessary orders for the faithful enforcement and execution of the laws
and ordinances in effect within the jurisdiction of the city." [Ibid., section 2434 (b)-(a)]; and
among the general powers and duties of the Municipal Board, whose ordinances the said
Mayor was at once bound and empowered to comply with and enforce, were such as
"regulate the use of streets, . . . parks, . . . and other public places." [Ibid., section 2444
(u); italics ours.]

Another legal doctrine which should not be lost sight of is that, without abridging the right
of assembly and petition, the government may regulate the use of places — public places —
wholly within its control, and that the state or municipality may require a permit for public
gatherings in public parks and that, while people have the right to assemble peaceably on
the highways and to parade on streets, nevertheless the state may regulate the use of the
streets by requiring a permit (16 C. J. S., p. 642). In our government the state, through the
Charter of Manila, has conferred certain powers pertinent to the subject under consideration
upon the City Mayor, and upon the Municipal Board. Among these is the duty and power of
said Mayor "to grant and refuse municipal . . . permits of all classes . . . for any good reason
of general interest" (italics ours), and the power and duty of the Municipal Board "to
regulate the use . . . of street, . . . parks, . . . and other public places . . ." (italics ours),
already above discussed.

Plaza Miranda in a way is a public square or plaza, and in another sense, in view of its more
frequent public use, is a public place devoted to traffic between several streets which empty
into it within the district of Quiapo. It is a fact of common knowledge and within the judicial
notice of this Court that said plaza is one of the public places constantly used by an usually
great number of people during all hours of the day and up to late hours of the night, both
for vehicular and for pedestrian traffic. It is one of the centers of the city where a heavy
volume of traffic during those hours converges and from which it again proceeds in all
directions; and the holding during those hours of a meeting, assembly or rally of the size
and nature of that contemplated by petitioner and those belonging to the Coalesced Minority
Parties when the permit in question was requested from the City Mayor, must have been
expected to greatly inconvenience and interfere with the right of the public in general to
devote said plaza to the public uses for which it has been destined since time immemorial.

The rule may perhaps be more aptly stated by saying that the right of peaceful assembly
and petition is not absolute but subject to regulation as regards the time, place, and
manner of its exercise. As to time, it seems evident, for example, that the State, directly or
through the local government of the city or municipality, by way of regulation of the right of
free speech, may validly prohibit the delivery of speeches on public streets near private
residences between midnight and dawn. As to place, we have the example of the instant
case involving Plaza Miranda or any other public place. And as to manner, it is a familiar
rule that the freedom of speech does not authorize the speaker to commit slander or
defamation, and that laws and ordinances aimed at preventing such abuses are valid
regulations of the right. Among other cases which may be cited on the same point, we have
that of Hague v. Committee on Industrial Organization, 307 U. S., 496, 83 Law. ed., 1423,
cited in the majority opinion and from which the following passage is copied from the
quotation therefrom in the said opinion:jgc:chanrobles.com.ph

". . . The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is
not absolute, but relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it must not, in the
guise of regulation, be abridged or denied." (Italics ours.)

I construe this declaration of principles by the United States Supreme Court to imply that
where the regulatory action is predicated upon the "general comfort and convenience," and
is "in consonance with peace and good order," as in the instant case, such action is
regulation and not "guise of regulation," and therefore does not abridge or deny the right.

(b) No constitutional right to use public places under government control, for exercise of
right of assembly and petition, etc. —
Indeed, carefully analyzed, the action taken by the City Mayor was not even a regulation of
the constitutional right of assembly and petition, or free speech, claimed by petitioner, but
rather of the use of a public place under the exclusive control of the city government for the
exercise of that right. This, I submit, is a distinction which must be clearly maintained
throughout this discussion. No political party or section of our people has any constitutional
right to freely and without government control make use of such a public place as Plaza
Miranda, particularly if such use is a deviation from those for which said public places have
been by their nature and purpose immemorially dedicated. In other words, the City Mayor
did not attempt to have anything to do with the holding of the "indignation rally" or the
delivery of speeches thereat on the date desired at any place over which said mayor had no
control — his action was exclusively confined to the regulation of the use of Plaza Miranda
for such a purpose and at such a time. Chief Justice Hughes, speaking for a unanimous
court in Cox v. New Hampshire, 312 U. S., 569, 85 Law. ed., 1049, 1054,
said:jgc:chanrobles.com.ph

"If a municipality has authority to control the uses of its public streets for parades or
processions, as it undoubtedly has, it can not be denied authority to give consideration,
without unfair discrimination, to time, place, and manner in relation to the other proper
uses of the streets. We find it impossible to say that the limited authority conferred by the
licensing provisions of the statute in question as thus construed by the state court
contravened any constitutional right." (Italics ours.)

That case was concerned with a prosecution of sixty-eight "Jehovah’s Witnesses" in a

municipal court in the State of New Hamsphire for violation of a state statute prohibiting a
"parade or procession" upon a public street without a special license. The appellants invoked
the constitutional right of free speech and press, as well as that of assembly. The judgment
of the municipal court was affirmed by the Supreme Court of New Hamsphire and that of
the latter was affirmed by the United States Supreme Court. Among other things, the United
States Supreme Court said that the appellants were not prosecuted for distributing leaflets,
or for conveying information by placards or otherwise, or for issuing invitations to a public
meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs.
Their right to do any of these things apart from engaging in a "parade or procession," upon
a public street was not involved in the case. The question of the validity of a statute
addressed to any other sort of conduct than that complained of was declared not to be
before the court (85 Law. ed., 1052). By analogy, I may say that in the instant case the
constitutional rights of free speech, assembly and petition are not before the court but
merely the privilege of petitioner and of the Coalesced Minorities to exercise any or all of
said rights by using Plaza Miranda, a public place under the complete control of the city
government. In the same case of Cox v. New Hampshire, supra, Chief Justice Hughes, in his
opinion, used the following eloquent language:jgc:chanrobles.com.ph

"Civil liberties, as guaranteed by the Constitution, imply the existence of an organized

society maintaining public order without which liberty itself would be lost in the excesses of
unrestrained abuses. The authority of a municipality to impose regulations in order to
assure the safety and convenience of the people in the use of public highways has never
been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this recognition of social need. Where
a restriction of the use of highways in that relation is designed to promote the public
convenience in the interest of all, it can not be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection. One would not
be justified in ignoring the familiar red traffic light because he thought it his religious duty
to disobey the municipal command or sought by that means to direct public attention to an
announcement of his opinion. . . ." (85 Law. ed., 1052-1053.)

In other words, when the use of public streets or places is involved, public convenience,
public safety and public order take precedence over even particular civil rights. For if the
citizen asserting the civil right were to override the right of the general public to the use of
such streets or places, just because it is guaranteed by the constitution, it would be hard to
conceive how upon the same principle that citizen be prevented from using the private
property of his neighbor for the exercise of the asserted right. The constitution, in
guaranteeing the right of peaceful assembly and petition, the right of free speech, etc., does
not guarantee their exercise upon public places, any more than upon private premises,
without government regulation in both cases, or the owner’s consent in the second.

In Davis v. Commonwealth, 167 U. S. 43, 42 Law. ed., 71, 72, the United States Supreme
Court, in affirming the decision of the Supreme Judicial Court of Massachusetts written by
Justice Oliver Wendell Holmes, then of the latter tribunal, quoted from said decision as
follows:jgc:chanrobles.com.ph

". . . As representative of the public it (legislature) may and does exercise control over the
use which the public may make of such places (public parks and streets), and it may and
does delegate more or less of such control to the city or town immediately concerned. For
the legislature absolutely or conditionally to forbid public speaking in a highway or public
park is no more an infringement of the rights of a member of the public than for the owner
of a private house to forbid it in his house. When no proprietary right interferes the
legislature may end the right of the public to enter upon the public place by putting an end
to the dedication to public uses. So it may take the lesser step of limiting the public use to
certain purposes. See Dill. Mun. Corp. secs. 393, 407, 651, 656, 666; Brooklyn Park Comrs.
v. Armstrong, 45 N. Y. 234, 243, 244 (6 Am. Rep. 70) . . ."cralaw virtua1aw library

(c) Authorities cited. —

I have examined the citations of authorities in the majority opinion. Most of the cases
therein cited are, I think, inapplicable to the one under consideration, and those which may
have some application, I believe reinforce this dissent. None of them was for mandamus to
compel the granting of a permit for holding a meeting, assembly, or the like, upon a public
place within the control of the general or local government.

The fact that a law or municipal ordinance under which a person had been prosecuted for
delivering a speech without the required permit, for example, was declared unconstitutional
or otherwise void for delegating an unfettered or arbitrary discretion upon the licensing
authority, thus completely failing to confer the discretion, does not mean that such person
has the right by mandamus to force said authority to grant him the permit. If, in such a
case, the law or ordinance, conferring the discretion, is unconstitutional or void, the
mandamus suit becomes entirely idle. Such a suit would involve a self- contradictory
proposition, for the very idea of a permit is something which may be granted or withheld.
He who has the power to grant permission for the doing of an act necessarily has the
correlative power to deny the permission. A "permit" which under no conditions or
circumstances and at no time can be refused needs a different name.

Willis Cox v. State of New Hampshire, 312 U. S., 569, was concerned with a statute of the
State of New Hampshire which was construed by the Supreme Court of the same State as
not conferring upon the licensing board unfettered discretion to refuse the license, and was
held valid both by said Supreme Court and the Supreme Court of the United States.
In our case, section 2434 (b)-(m) of the Revised Administrative Code does not confer upon
the Mayor of Manila an unfettered discretion to grant or to refuse the permit — his power to
grant or to refuse the permit is controlled and limited by the all-important requirement of
the same section that whatever his determination, it should be "for any good reason of
general interest."cralaw virtua1aw library

In City of Chicago v. Trotter, 136 Ill., 430, the Supreme Court of the State of Illinois held
that the power of city councils under the state laws to regulate the use of the public streets
could not be delegated by them, and therefore could not be delegated to the superintendent
of police. But in our case the power of the City Mayor under the Revised Administrative
Code has not been delegated by the Municipal Board of Manila but has been directly
conferred by the State through its legislature.

In State ex rel. Garrabad v. Dering, 84 Wis., 585, what was involved was a city ordinance
committing to the unrestrained will of a public officer the power to determine the rights of
parties under the ordinance without anything "to guide or control his action." In our case, as
already stated, the City Mayor received his power from the State through the Legislature
which enacted the Revised Administrative Code, and moreover, his action was therein
provided to be guided and controlled by the already mentioned requirement that whether he
grants or refuses a municipal permit of any class, it shall be for some "good reason of
general interest," and not as his unfettered will may dictate.

The case of In re Fradzee, 63 Mich., 399, involved a city ordinance declared unreasonable
and void by the Supreme Court of Michigan, the ordinance prohibiting certain uses of the
public streets of the City of Grand Rapids "without having first obtained the consent of the
mayor or common council of said city." The ordinance did not prescribe any guide, control
or limitation for, of, and to, the exercise of the power thus conferred upon the mayor or
common council. The following passage from the quotation from the decision of the
Supreme Court of Michigan made in the majority opinion would seem to reinforce the stand
taken in this dissent.

". . . We must therefore construe this charter, and the powers it assumes to grant, so far as
it is not plainly unconstitutional, as only conferring such power over the subjects referred to
as will enable the city to keep order, and suppress mischief, in accordance with the
limitations and conditions required by the rights of the people themselves, as secured by
the principles of law, which can not be less careful of private rights under a constitution
than under the common law.

"It is quite possible that some things have a greater tendency to produce danger and
disorder in the cities than in smaller towns or in rural places. This may justify reasonable
precautionary measures, but nothing further; and no inference can extend beyond the fair
scope of powers granted for such a purpose, and no grant of absolute discretion to suppress
lawful action altogether can be granted at all . . . ." (Italics ours.)

The instant case is concerned with an "indignation rally" to be held at one of the busiest and
most frequented public places in this big cosmopolitan city, with a present population
estimated to be 150 per cent larger than its prewar population, and the public officer who
was being called upon to act on the petition for permit was the chief executive of the city
who was by reason of his office the officer most directly responsible for the keeping and
maintenance of peace and public order for the common good. And as stated elsewhere in
this dissent, his power in the premises was not without control, limitation or guide and,
lastly, the action taken by him was not an absolute suppression of the right claimed but was
merely a postponement of the use of a public place for the exercise of that right when
popular passions should have calmed down and public excitement cooled off sufficiently to
better insure the avoidance of public peace and order being undermined.

Rich v. Mapervill, 42 Ill. Ap., 222 had to do with another city ordinance. The court there
held that when men in authority are permitted in their discretion to exercise "power so
arbitrary, liberty is subverted, and the spirit of our free institution violated." (Italics ours.)
This is not our case, as the power of the Manila Mayor now under consideration is not at all
arbitrary. It was further held in that case that where the granting of the permit is left to the
unregulated discretion of a small body of city alderman, the ordinance can not be other than
partial and discriminating in its practical operation. The case at bar is radically different for,
as already shown, the discretion of the City Mayor here is not unregulated, for the phrase
"any good reason of general interest" is certainly an effective regulatory condition precedent
to the exercise of the power one way or the other. And just as certainly the reasons alleged
by the respondent Mayor for his action stated in his letters dated November 15 and 17,
1947, addressed to petitioner and in his affidavit Annex 1, seem entirely well founded and
well taken, consideration being had of his grave responsibilities as the immediate keeper of
peace and public order in the city. Elsewhere in this dissent we quote from said documents
textually.

On page 13 of the majority opinion there is a quotation of another passage from the case of
Cox v. New Hampshire, supra, which says:jgc:chanrobles.com.ph

"As regulation of the use of the streets for parades and processions is a traditional exercise
of control by local government, the question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge the right of assembly and the
opportunities for the communication of thought and the discussion of public questions
immemorially associated with resort to public places."cralaw virtua1aw library

The above rule means that if the control exerted does not deny or unwarrantedly abridge
the right of assembly, such control is legally valid. This is precisely our case, since the
respondent Mayor neither denied nor unwarrantedly abridged the right asserted by
petitioner and his companions. If the postponement of the granting of the permit should be
taken as a denial of the right, then we would be practically denying the discretion of the
proper official for it would be tantamount to compelling him to grant the permit outright,
which would necessarily mean that he can never refuse the permit, for one who cannot even
postpone the granting of such permit much less can altogether refuse it.

Hague v. Committee for Industrial Organization, 307 U. S. 496, 83 Law. ed., 1423, apart
from being clearly distinguishable from the instant case as later demonstrated, contains the
passage quoted on page 7 of this dissent, which decidedly supports it. The distinction
between that case and this is that there "the ordinance deals only with the exercise of the
right of assembly for the purpose of communicating views entertained by speakers, and is
not a general measure to promote the public convenience in the use of the streets or parks"
(83 Law. ed., 1436); while in the instant case section 2434 (b)-(m) of the Revised
Administrative Code is not solely aimed at prohibition of any particular act for it likewise
provides for permission, and in both cases is expressly aimed at promoting the "general
interest."cralaw virtua1aw library

Cox v. State of New Hampshire, 312 U. S., 569, 95 Law, ed., 1049, is equally in solid
support of this dissent as appears from No. 2 of the syllabus therein:jgc:chanrobles.com.ph

"A statute requiring persons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional abridgment of
the rights of assembly or of freedom of speech and press, where, as the statute is construed
by the state courts, the licensing authorities are strictly limited, in the issuance of licenses,
to a consideration of the time, place, and manner, of the parade or procession, with a view
to conserving the public convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or refuse licenses, but are
required to exercise their discretion free from improper or inappropriate considerations and
from unfair discrimination." (Italics ours)

In empowering and directing the City Mayor to grant or refuse permits "for any . . . good
reason of general interest," the Revised Administrative Code plainly has in view only the
common good and excludes all "improper or inappropriate considerations" and "unfair
discrimination" in the exercise of the granted discretion.

Lastly, as between Hague v. Committee for Industrial Organization, supra, and Cox v. State
of New Hampshire supra, the choice is obvious with regard to their authoritative force, when
it is considered that in the former out of the nine Justices of the United States Supreme
Court two did not take part and of the seven who did only two, Justices Roberts and Black,
subscribed the opinion from which the majority here quote, while in the latter (Cox v. State
of New Hampshire) the decision was unanimous.

(d) Mandamus unavailable. —

McQuillin on Municipal Corporations, 2nd ed., Revised, Volume 6, p. 848, section 2714,
expresses the rule obtaining in the United States that the immunity from judicial control
appertaining to the Office of the Governor of the State, or to the Presidency of the United
States, does not attach to the mayoralty of a city. But on page 878, section 2728, he has
the following to say on the unavailability of mandamus to compel the granting of licenses
and permits by municipal officers:jgc:chanrobles.com.ph

"Sec. 2728. To compel the granting of licenses and permits. — If the issuance of the license
or permit is discretionary with the officer or municipal board, it is clear that it cannot be
compelled by mandamus. The cases rarely, if ever, depart from this well established rule,
and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the
remedy. As already stated, the fundamental condition is that the petition must show a clear
legal right to the writ and a plain neglect of duty on the part of the public officer to perform
the act sought to be enforced. For example, one who seeks to compel a city to issue to him
a permit for the erection of a building must show compliance with all the valid requirements
of the building ordinances and regulations.

"The granting of licenses or permits by municipal or other public authorities, as mentioned,

is usually regarded as a discretionary duty, and hence, ordinarily, mandamus will not lie to
compel them to grant a license or issue a permit to one claiming to be entitled thereto,
especially where it is not alleged and shown that the exercise of such discretion was
arbitrary. All the court can do is to see that the licensing authorities have proceeded
according to law. Their decision will not be reviewed on its merits. Where, however, refusal
to grant a license or to issue a permit, as said above, is arbitrary or capricious mandamus
will lie to compel the appropriate official action. . . ." To my mind, the following reasons,
alleged by the respondent Mayor, negative all element of arbitrariness in his official action. .
. ."cralaw virtua1aw library

To my mind, the following reasons, alleged by the respondent Mayor, negative all element
of arbitrariness in his official action:jgc:chanrobles.com.ph
". . . please be advised that upon reading the metropolitan newspapers this morning
wherein it appears that your meeting will be an indignation rally at which all the supposed
election frauds allegedly perpetrated in many parts of the Philippines for the purpose of
overriding the popular will, will be bared before the people, this office hereby revokes the
said permit.

"It is believed that public peace and order in Manila will be undermined at the proposed rally
considering that passions have not as yet subsided and tension remains high as an
aftermath of the last political contest.

"According to the same newspapers, delegates from the provinces and students from local
universities will participate in the said rally which, in my opinion, would only precipitate
trouble since no guarantee can be given that only the opposition elements will be there. The
moment the crowd becomes mixed with people of different political colors which is most
likely to happen, public order is exposed to danger once the people are incited, as they will
be incited, considering the purposes for which the meeting will be held as reported in the
newspapers above mentioned.

". . ." (Mayor’s letter dated November 15, 1947.)

"I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for
a permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22,
1947, for the purpose of denouncing the alleged fraudulent manner in which the last
elections have been conducted and the alleged nationwide flagrant violation of the Election
Law, and of seeking redress therefor. It is regretted that for the same reasons stated in my
letter of November 15, 1947, your request can not be granted for the present. This Office
has adopted the policy of not permitting meetings of this nature which are likely to incite
the people and disrupt the peace until the results of the elections shall have been officially
announced. After this announcement, requests similar to yours will be granted.

". . ." (Mayor’s letter dated November 17, 1947.)

"That according to Congressman Primicias, the meeting will be an indignation rally for the
purpose of denouncing the alleged fraudulent manner the said elections were conducted and
the nationwide flagrant violations of the Election Law;

"2. That it is a fact that the returns of the last elections are still being recounted in the City
of Manila in the Commission on Elections, and pending the final announcement of the results
thereof, passions, especially on the part of the losing groups, remain bitter and high;

"3. That allusions have been made in the metropolitan newspapers that in case of defeat,
there will be minority resignations in Congress, rebellion and even revolution in the country;

"4. That I am sure that the crowd that will attend the said meeting will be a multitude of
people of different and varied political sentiments;

"5.x x x

"6. That judging from the tenor of the request for permit and taking into consideration the
circumstances under which said meeting will be held, it is safe to state that once the people
gathered thereat are incited, there will surely be trouble between the opposing elements,
commotion will follow, and then peace and order in Manila will be disrupted; and
"7. That the denial of said request for permit has been made for no other reasons except to
perform my duty as Mayor of Manila to maintain and preserve peace and order in this City.

"8. That I have assured Congressman Primicias that immediately after the election returns
shall have been officially announced, the Nacionalista Party or any party will be granted
permit to hold meetings of indignation and to denounce alleged frauds." (Annex 1,
Answer.)

For these and other reasons which could be advanced in corroboration, I am of the
considered opinion that the respondent Mayor had under the law the requisite discretion to
grant or to refuse the permit requested, and therefore to revoke that which had previously
been granted, and that the reasons for such revocation alleged in his letters dated
November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient
to justify his last action. And be it distinctly observed that this last action was not an
absolute denial of the permit, but a mere postponement of the time for holding the "rally"
for good reasons "of general interest" in the words of section 2434 (b) — (m) of the Revised
Administrative Code.

TUASON, J., dissenting:chanrob1es virtual 1aw library

I join in Mr. Justice Hilado’s dissent and wish to add a few remarks.

As Mr. Justice Hilado says, freedom of speech, of the press, and of peaceable assemblage, is
only an incidental issue in this case. No one will contest the proposition that the mayor or
the Congress itself may not stop the petitioner and his men from meeting peaceably and
venting their grievances in a private place. The main issue rather is the extent of the right
of any group of people to use a public street or a public plaza for a purpose other than that
for which it is dedicated.

The constitutional guaranty of free speech does not prevent the government from regulating
the use of places within its control. A law or ordinance may forbid the delivery of addresses
on the public parks, or on the streets as a valid exercise of the police power. (12 C. J., 954.)
Rights of assembly and of petition are not absolute rights and are to be construed with
regard to the general law. (16 C. J. S., 640.) Indeed, "the privileges of a citizen of the
United States to use the streets and parks for communication of views on national questions
. . . must be exercised in subordination to the general comfort and convenience." (Hague v.
Committee for Industrial Organization, 307 U. S., 496, 83 Law. ed., 1433.) And so long as
the municipal authorities act within the legitimate scope of their police power their
discretion is not subject to outside interference or judicial revision or reversal. (44 C. J.,
1101.) Of necessity a municipality must be allowed reasonable latitude in this regard. (14
C. J., 931.)

The mayor did not act capriciously or arbitrarily in withholding or postponing the permit
applied for by the petitioner. His reasons were real, based on contemporary events of public
knowledge, and his temporary refusal was reasonably calculated to avoid possible
disturbances as well as to advance and protect the public in the proper use of the most
congested streets and public plaza in an overcrowded city. There was reason to fear
disturbances, not from the petitioner and his men but from elements who had no connection
with the holding of the meeting but who, having gripes, might be easily excited to violence
by inflammatory harangues when nerves were on edge.

The fact that no untoward incident occurred does not prove the judiciousness of this Court’s
resolution. The court is not dealing with an isolated case; it is laying down a rule of
transcendental importance and far-reaching consequences, in the administration of cities
and towns. If nothing happened, it is well to remember that, according to newspapers, 500
policemen were detailed to prevent possible disorder at the gathering. It should also be
borne in mind that vehicular traffic in the vicinity of Plaza Miranda had to be suspended and
vehicles had to be rerouted before, during and after the meeting. All of which entailed
enormous expense by the city and discomforts to the general public.

No individual citizen or group of citizens certainly has a right to claim the use of a public
plaza or public streets at such great expense and sacrifice on the part of the city and of the
rest of the community. Yet, by virtue of this Court’s resolution any person or group of
persons invoking political, civil or religious freedom under the constitution is at liberty to
stage a rally or parade or a religious procession, with the mayor powerless to do anything
beyond seeing to it that no two meetings or parades were held in the same place or close to
each other. No precedent in the United States, after whose institutions ours are modelled,
approaches this Court’s resolution in its disregard of the government’s authority to control
public streets and to maintain peace and order. In an infant republic where the state of
peace and order is still far from normal, where the forces of law are far from adequate to
cope with lawlessness; in a city where conditions of traffic are among the worst if not the
worst on earth, this Court sets down a principle that outstrips its prototype in "liberality,"
forgetting that personal rights can only exist in a properly regulated society. As Mr. Chief
Justice Hughes said in Cox v. New Hampshire, 61 S. Ct., 762, "Civil liberties, as guaranteed
by the Constitution, imply the existence of an organized society maintaining public order
without which liberty itself would be lost in the excesses of unrestrained abuses. The
authority of the municipality to impose regulations in order to assure the safety and
convenience of the people in the use of public highways has never been regarded as
inconsistent with civil liberties, but rather as one of the means of safeguarding the good
order upon which they ultimately depend." To be logical, peddlers and merchants should be
given, as a matter of right, the freedom to use public streets and public squares to ply their
trade, for the freedom of expression and of assemblage is no more sacred than the freedom
to make a living. Yet no one has dared make such claim.

The cases cited in the resolution are not applicable. It will be seen that each of those cases
involved the legality of a law or municipal ordinance. And if in some of said cases a law or
an ordinance was declared void, the grounds of invalidation were either discrimination or
lack of authority of the Legislature or the municipal council under the state constitution or
under the law to adopt the contested measure.

As applied to Manila, there are both a law and an ordinance regulating the use of public
places and the holding of meetings and parades in such places. As long as this law and this
ordinance are in force the mayor does not only have the power but it is his sworn duty to
grant or refuse a permit according to what he believes is in consonance with peace and
order or is proper to promote the general comfort and convenience of the inhabitants.

The Court says that section 2434 (m) of the Revised Administrative Code "is not a specific
of substantive power independent from the corresponding municipal ordinance which the
Mayor, as Chief Executive of the City, is required to enforce under the same section 2434."
The Court advances the opinion that because section 2444 confers upon the municipal board
"the police power to regulate the use of streets and other public places," "it is to be
presumed that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434(m), the same power, specially if we take into account that its exercise may be
in conflict with the exercise of the same power by the municipal board."cralaw virtua1aw
library
Section 2434(m) is written in the plainest language for any casual reader to understand,
and it is presumed that it means what it says. This provision certainly was not inserted in
the city charter, which must have been drawn with painstaking care, for nothing. And I am
aware of no constitutional provision or constitutional maxim which prohibits the delegation
by the Legislature of part of its police power affecting local matters, directly upon the mayor
instead of through the municipal board. Nor is there incompatibility between section 2434
(m) and section 2444 or the ordinance enacted under the latter. At any rate, section
2434(m) is of special character while section 2444 is general, so that, if there is any conflict
between section 2434(m) and the ordinance passed under section 2444, the former is to
prevail.

This Court has already set at rest the validity, meaning and scope of section 2434 (m) in a
unanimous decision with all the nine members voting, when it sustained the mayor’s refusal
to grant a permit for a public meeting on a public plaza to be followed by a parade on public
streets. (Evangelista v. Earnshaw, 57 Phil., 255.) The reference to section 2434(m) in that
decision was not an obiter dictum as the majority say. The sole question presented there, as
we gather from the facts disclosed, was the legality of the mayor’s action, and the court
pointed to section 2434(m) as the mayor’s authority for his refusal. The fact that the mayor
could have denied the petitioner’s application under the general power to prohibit a meeting
for unlawful purposes did not make the disposition of the case on the strength of section
2434 (m) obiter dictum. An adjudication on any point within the issues presented by the
case cannot be considered a dictum; and this rule applies as to all pertinent questions,
although only incidentally involved, which are presented and decided in the regular course
of the consideration of the case, and lead up to the final conclusion, and to any statement in
the opinion as to a matter on which the decision is predicated. Accordingly, a point
expressly decided does not lose its value as a precedent because the disposition of the case
is or might have been made on some other ground, or even though, by reason of other
points in the case, the result reached might have been the same if the court had held, on
the particular point, otherwise than it did. (1 C. J. S. 314-315.)

But the Court asserts that if the meaning of section 2434(m) is what this Court said in the
Evengelista-Earnshaw case, then that section is void. I do not think that that provision is
void — at least not yet. Until it is invalidated in the proper case and in the proper manner,
the mayor’s authority in respect of the issuance of permits is to be measured by section
2434(m) and by the municipal ordinance in so far as the ordinance does not conflict with
the law. The validity of that provision is not challenged and is nowhere in issue. It is highly
improper, contrary to the elementary rules of practice and procedure for this Court to say or
declare that that provision is void. Moreover, Article VIII, section 10, of the Constitution
provides that "all cases involving the constitutionality of a treaty or law shall be heard and
decided by the Supreme Court in banc, and no treaty or law may be declared
unconstitutional without the concurrence of two-thirds of all the members of the Court."
Only seven members voted in favor of the resolution.

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.
MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the one which this application
for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch
of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the
forefront of our minds the basic principles of popular government, and if we give expression to the
paramount purpose for which the courts, as an independent power of such a government, were
constituted. The primary question is — Shall the judiciary permit a government of the men instead of a
government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable
reading for other departments of the government, the facts are these: The Mayor of the city of Manila,
Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women
of ill repute, which had been permitted for a number of years in the city of Manila, closed. Between
October 16 and October 25, 1918, the women were kept confined to their houses in the district by the
police. Presumably, during this period, the city authorities quietly perfected arrangements with the Bureau
of Labor for sending the women to Davao, Mindanao, as laborers; with some government office for the
use of the coastguard cutters Corregidor and Negros, and with the Constabulary for a guard of soldiers.
At any rate, about midnight of October 25, the police, acting pursuant to orders from the chief of police,
Anton Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon the houses, hustled
some 170 inmates into patrol wagons, and placed them aboard the steamers that awaited their arrival.
The women were given no opportunity to collect their belongings, and apparently were under the
impression that they were being taken to a police station for an investigation. They had no knowledge that
they were destined for a life in Mindanao. They had not been asked if they wished to depart from that
region and had neither directly nor indirectly given their consent to the deportation. The involuntary guests
were received on board the steamers by a representative of the Bureau of Labor and a detachment of
Constabulary soldiers. The two steamers with their unwilling passengers sailed for Davao during the night
of October 25.

The vessels reached their destination at Davao on October 29. The women were landed and receipted for
as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yñigo and Rafael Castillo.
The governor and the hacendero Yñigo, who appear as parties in the case, had no previous notification
that the women were prostitutes who had been expelled from the city of Manila. The further happenings
to these women and the serious charges growing out of alleged ill-treatment are of public interest, but are
not essential to the disposition of this case. Suffice it to say, generally, that some of the women married,
others assumed more or less clandestine relations with men, others went to work in different capacities,
others assumed a life unknown and disappeared, and a goodly portion found means to return to Manila.

To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao,
the attorney for the relatives and friends of a considerable number of the deportees presented an
application for habeas corpus to a member of the Supreme Court. Subsequently, the application, through
stipulation of the parties, was made to include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the application will be considered as including
them. The application set forth the salient facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared for the respondents, Lukban and Hohmann, admitted certain facts
relative to sequestration and deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the
women under their custody or control, and because their jurisdiction did not extend beyond the
boundaries of the city of Manila. According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on the haciendas of Yñigo and Governor Sales. In
open court, the fiscal admitted, in answer to question of a member of the court, that these women had
been sent out of Manila without their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of Manila,
Francisco Sales, governor of the province of Davao, and Feliciano Yñigo, an hacenderoof Davao, to bring
before the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion
of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as
commissioners. On the day named in the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the respondents. It has been shown that three of
those who had been able to come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to the original petition copied a
telegram from the Mayor of the city of Manila to the provincial governor of Davao and the answer thereto,
and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in
Davao, and offered certain affidavits showing that the women were contained with their life in Mindanao
and did not wish to return to Manila. Respondents Sales answered alleging that it was not possible to
fulfill the order of the Supreme Court because the women had never been under his control, because they
were at liberty in the Province of Davao, and because they had married or signed contracts as laborers.
Respondent Yñigo answered alleging that he did not have any of the women under his control and that
therefore it was impossible for him to obey the mandate. The court, after due deliberation, on December
10, 1918, promulgated a second order, which related that the respondents had not complied with the
original order to the satisfaction of the court nor explained their failure to do so, and therefore directed
that those of the women not in Manila be brought before the court by respondents Lukban, Hohmann,
Sales, and Yñigo on January 13, 1919, unless the women should, in written statements voluntarily made
before the judge of first instance of Davao or the clerk of that court, renounce the right, or unless the
respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.

Before January 13, 1919, further testimony including that of a number of the women, of certain detectives
and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court
sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented before the Court the women who had
returned to the city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further
endeavored to account for all of the persons involved in the habeas corpus. In substance, it was stated
that the respondents, through their representatives and agents, had succeeded in bringing from Davao
with their consent eight women; that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation fee, renounced the right through sworn statements;
that fifty-nine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the
police force of the city of Manila, Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney
for the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal
requested that the replica al memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.

In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the
final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and seventy women were isolated
from society, and then at night, without their consent and without any opportunity to consult with friends or
to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown.
Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of the police and the constabulary was deemed necessary
and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed,
this is a fact impossible to refute and practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By authority of what law did the
Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to
another distant locality within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No.
519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide
for the conviction and punishment by a court of justice of any person who is a common prostitute. Act No.
899 authorizes the return of any citizen of the United States, who may have been convicted of vagrancy,
to the homeland. New York and other States have statutes providing for the commitment to the House of
Refuge of women convicted of being common prostitutes. Always a law! Even when the health authorities
compel vaccination, or establish a quarantine, or place a leprous person in the Culion leper colony, it is
done pursuant to some law or order. But one can search in vain for any law, order, or regulation, which
even hints at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of
the Philippine Islands — and these women despite their being in a sense lepers of society are
nevertheless not chattels but Philippine citizens protected by the same constitutional guaranties as are
other citizens — to change their domicile from Manila to another locality. On the contrary, Philippine penal
law specifically punishes any public officer who, not being expressly authorized by law or regulation,
compels any person to change his residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found
in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a
principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to
require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President
of the United States, who has often been said to exercise more power than any king or potentate, has no
such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a
municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines
have the same privilege. If these officials can take to themselves such power, then any other official can
do the same. And if any official can exercise the power, then all persons would have just as much right to
do so. And if a prostitute could be sent against her wishes and under no law from one locality to another
within the country, then officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No freeman shall be taken, or
imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any
other wise destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or
by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how high, is
above the law. The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the
United States, "is the only supreme power in our system of government, and every man who by accepting
office participates in its functions is only the more strongly bound to submit to that supremacy, and to
observe the limitations which it imposes upon the exercise of the authority which it gives." (U.S. vs. Lee
[1882], 106 U.S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another
case, "that one man may be compelled to hold his life, or the means of living, or any material right
essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where
freedom prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356,
370.) All this explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the
very beginning that the primary question was whether the courts should permit a government of men or a
government of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party may recoup money
damages. It may still rest with the parties in interest to pursue such an action, but it was never intended
effectively and promptly to meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:

Any public officer not thereunto authorized by law or by regulations of a general character in force
in the Philippines who shall banish any person to a place more than two hundred kilometers
distant from his domicile, except it be by virtue of the judgment of a court, shall be punished by a
fine of not less than three hundred and twenty-five and not more than three thousand two
hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulation of a general
character in force in the Philippines who shall compel any person to change his domicile or
residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-
five and not more than six thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any
public officer has violated this provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that
the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to — "It
would be a monstrous anomaly in the law if to an application by one unlawfully confined, ta be restored to
his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be
continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal
procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus 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. Any further rights of the parties are left untouched by
decision on the writ, whose principal purpose is to set the individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the
Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of
their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that perforce they could not bring the women
from Davao.

The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends
of the deportees. The way the expulsion was conducted by the city officials made it impossible for the
women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The
law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ
of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.)
Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao
or should have been made returnable before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made
returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme
Court and is dependent on the particular circumstances. In this instance it was not shown that the Court
of First Instance of Davao was in session, or that the women had any means by which to advance their
plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the
two original respondents with their attorney, were in Manila; it was shown that the case involved parties
situated in different parts of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken
cognizance of and decided immediately by the appellate court. The failure of the superior court to
consider the application and then to grant the writ would have amounted to a denial of the benefits of the
writ.

The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for,
says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed,
were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city
limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found
to be perversive of the first principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed
in Davao without either money or personal belongings, they were prevented from exercising the liberty of
going when and where they pleased. The restraint of liberty which began in Manila continued until the
aggrieved parties were returned to Manila and released or until they freely and truly waived his right.

Consider for a moment what an agreement with such a defense would mean. 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 called upon 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.

It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous
case. Certain decisions of respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an early date as to whether or not
a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the
State to bring into the State a minor child under guardianship in the State, who has been and continues to
be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It
was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the
writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with
whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell
was predicated to a large extent on his conception of the English decisions, and since, as will hereafter
appear, the English courts have taken a contrary view, only the following eloquent passages from the
opinion of Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on
the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have
been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its
many confirmations, until Coke could declare in his speech on the petition of right that "Magna
Charta was such a fellow that he will have no sovereign," and after the extension of its benefits
and securities by the petition of right, bill of rights and habeas corpus acts, it should now be
discovered that evasion of that great clause for the protection of personal liberty, which is the life
and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be
determined without delay, that the legislature may apply the proper remedy, as I can not doubt
they would, on the subject being brought to their notice. . . .

The second proposition — that the statutory provisions are confined to the case of imprisonment
within the state — seems to me to be based upon a misconception as to the source of our
jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction
to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to
compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is
directed to and served upon, not the person confined, but his jailor. It does not reach the former
except through the latter. The officer or person who serves it does not unbar the prison doors,
and set the prisoner free, but the court relieves him by compelling the oppressor to release his
constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the
means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the
ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to
those which are usual. The place of confinement is, therefore, not important to the relief, if the
guilty party is within reach of process, so that by the power of the court he can be compelled to
release his grasp. The difficulty of affording redress is not increased by the confinement being
beyond the limits of the state, except as greater distance may affect it. The important question is,
where the power of control exercised? And I am aware of no other remedy. (In the matter of
Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex
parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a child had been taken out of
English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to produce the child. The judge at
chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated
that the child before the issuance of the writ had been handed over by him to another; that it was no
longer in his custody or control, and that it was impossible for him to obey the writ. He was found in
contempt of court. On appeal, the court, through Lord Esher, M. R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ
commanded the defendant to have the body of the child before a judge in chambers at the Royal
Courts of Justice immediately after the receipt of the writ, together with the cause of her being
taken and detained. That is a command to bring the child before the judge and must be obeyed,
unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be
 shown that by reason of his having lawfully parted with the possession of the child before the
issuing of the writ, the defendant had no longer power to produce the child, that might be an
answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does
not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts
have been made in argument to shift the question of contempt to some anterior period for the
purpose of showing that what was done at some time prior to the writ cannot be a contempt. But
the question is not as to what was done before the issue of the writ. The question is whether
there has been a contempt in disobeying the writ it was issued by not producing the child in
obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the
same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The
Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes
as slaves in the city of Washington; that, as he believed, they were removed beyond the District of
Columbia before the service of the writ of habeas corpus, and that they were then beyond his control and
out of his custody. The evidence tended to show that Davis had removed the negroes because he
suspected they would apply for a writ of habeas corpus. The court held the return to be evasive and
insufficient, and that Davis was bound to produce the negroes, and Davis being present in court, and
refusing to produce them, ordered that he be committed to the custody of the marshall until he should
produce the negroes, or be otherwise discharged in due course of law. The court afterwards ordered that
Davis be released upon the production of two of the negroes, for one of the negroes had run away and
been lodged in jail in Maryland. Davis produced the two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See also Robb vs. Connolly [1883],
111 U.S., 624; Church on Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.

There remains to be considered whether the respondent complied with the two orders of the Supreme
Court awarding the writ of habeas corpus, and if it be found that they did not, whether the contempt
should be punished or be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yñigo to present the persons named in the writ before the court on December 2, 1918. The order was
dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial governor of Davao. According to the response of
the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to do so because of having contracted debts.
The half-hearted effort naturally resulted in none of the parties in question being brought before the court
on the day named.

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. (Code of Criminal Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to show that the women were contended with their life in
Davao, some of which have since been repudiated by the signers, were appended to the return. That
through ordinary diligence a considerable number of the women, at least sixty, could have been brought
back to Manila is demonstrated to be found in the municipality of Davao, and that about this number
either returned at their own expense or were produced at the second hearing by the respondents.

The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the order.
Their excuses for the non-production of the persons were far from sufficient. The, authorities cited herein
pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must
be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision of the
Court, said: "We thought that, having brought about that state of things by his own illegal act, he must
take the consequences; and we said that he was bound to use every effort to get the child back; that he
must do much more than write letters for the purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that mortal man could do in the matter; and that
the court would only accept clear proof of an absolute impossibility by way of excuse." In other words, the
return did not show that every possible effort to produce the women was made by the respondents. That
the court forebore at this time to take drastic action was because it did not wish to see presented to the
public gaze the spectacle of a clash between executive officials and the judiciary, and because it desired
to give the respondents another chance to demonstrate their good faith and to mitigate their wrong.

In response to the second order of the court, the respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment
with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this
effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any
particular individual is still restrained of her liberty, it can be made the object of separate habeas
corpus proceedings.

Since the writ has already been granted, and since we find a substantial compliance with it, nothing
further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yñigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ
of habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex
parte Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot
say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yñigo appears to
have been drawn into the case through a misconstruction by counsel of telegraphic communications. The
city fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal
representative of the city government. Finding him innocent of any disrespect to the court, his counter-
motion to strike from the record the memorandum of attorney for the petitioners, which brings him into this
undesirable position, must be granted. When all is said and done, as far as this record discloses, the
official who was primarily responsible for the unlawful deportation, who ordered the police to accomplish
the same, who made arrangements for the steamers and the constabulary, who conducted the
negotiations with the Bureau of Labor, and who later, as the head of the city government, had it within his
power to facilitate the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city
of Manila. His intention to suppress the social evil was commendable. His methods were unlawful. His
regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates
to the penalty for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to
the parties aggrieved as much as P400 each, which would reach to many thousands of pesos, and in
addition to deal with him as for a contempt. Some members of the court are inclined to this stern view. It
would also be possible to find that since respondent Lukban did comply substantially with the second
order of the court, he has purged his contempt of the first order. Some members of the court are inclined
to this merciful view. Between the two extremes appears to lie the correct finding. The failure of
respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be considered only as extenuating his
conduct. A nominal fine will at once command such respect without being unduly oppressive — such an
amount is P100.

In resume — as before stated, no further action on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax, Joaquin, Yñigo, and Diaz are found not to be in contempt of
court. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the
Supreme Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city
of Manila to strike from the record the Replica al Memorandum de los Recurridos of January 25, 1919, is
granted. Costs shall be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to express the hope that this
decision may serve to bulwark the fortifications of an orderly government of laws and to protect individual
liberty from illegal encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

Separate Opinions

TORRES, J., dissenting:

The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpusproceeding against Justo Lukban, the mayor of this city.

There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.

We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one
hundred and fifty women were assembled and placed aboard a steamer and transported to Davao,
considering that the existence of the said houses of prostitution has been tolerated for so long a time, it is
undeniable that the mayor of the city, in proceeding in the manner shown, acted without authority of any
legal provision which constitutes an exception to the laws guaranteeing the liberty and the individual
rights of the residents of the city of Manila.

We do not believe in the pomp and obstentation of force displayed by the police in complying with the
order of the mayor of the city; neither do we believe in the necessity of taking them to the distant district of
Davao. The said governmental authority, in carrying out his intention to suppress the segregated district
or the community formed by those women in Gardenia Street, could have obliged the said women to
return to their former residences in this city or in the provinces, without the necessity of transporting them
to Mindanao; hence the said official is obliged to bring back the women who are still in Davao so that they
may return to the places in which they lived prior to their becoming inmates of certain houses in Gardenia
Street.

As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in bringing the said women who were
free at Davao and presenting them before this court within the time fixed, inasmuch as it does not appear
that the said women were living together in a given place. It was not because they were really detained,
but because on the first days there were no houses in which they could live with a relative independent
from one another, and as a proof that they were free a number of them returned to Manila and the others
succeeded in living separate from their companions who continued living together.

To determine whether or not the mayor acted with a good purpose and legal object and whether he has
acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them
to change their domicile, it is necessary to consider not only the rights and interests of the said women
and especially of the patrons who have been directing and conducting such a reproachable enterprise
and shameful business in one of the suburbs of this city, but also the rights and interests of the very
numerous people of Manila where relatively a few transients accidentally and for some days reside, the
inhabitants thereof being more than three hundred thousand (300,000) who can not, with indifference and
without repugnance, live in the same place with so many unfortunate women dedicated to prostitution.

If the material and moral interests of the community as well as the demands of social morality are to be
taken into account, it is not possible to sustain that it is legal and permissible to establish a house of
pandering or prostitution in the midst of an enlightened population, for, although there were no positive
laws prohibiting the existence of such houses within a district of Manila, the dictates of common sense
and dictates of conscience of its inhabitants are sufficient to warrant the public administration, acting
correctly, in exercising the inevitable duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates thereof to leave it, although such a
house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law
guaranteeing his liberty, his individual rights, and his right to property.

A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in
his favor the constitutional law which guarantees his liberty and individual rights, should the administrative
authority order his hospitalization, reclusion, or concentration in a certain island or distant point in order to
free from contagious the great majority of the inhabitants of the country who fortunately do not have such
diseases. The same reasons exist or stand good with respect to the unfortunate women dedicated to
prostitution, and such reasons become stronger because the first persons named have contracted their
diseases without their knowledge and even against their will, whereas the unfortunate prostitutes
voluntarily adopted such manner of living and spontaneously accepted all its consequences, knowing
positively that their constant intercourse with men of all classes, notwithstanding the cleanliness and
precaution which they are wont to adopt, gives way to the spread or multiplication of the disease known
as syphilis, a venereal disease, which, although it constitutes a secret disease among men and women, is
still prejudicial to the human species in the same degree, scope, and seriousness as cholera,
tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great mortality and
very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her
sufficient remuneration for her subsistence, prefers to put herself under the will of another woman who is
usually older than she is and who is the manager or owner of a house of prostitution, or spontaneously
dedicates herself to this shameful profession, it is undeniable that she voluntarily and with her own
knowledge renounces her liberty and individual rights guaranteed by the Constitution, because it is
evident that she can not join the society of decent women nor can she expect to get the same respect
that is due to the latter, nor is it possible for her to live within the community or society with the same
liberty and rights enjoyed by every citizen. Considering her dishonorable conduct and life, she should
therefore be comprised within that class which is always subject to the police and sanitary regulations
conducive to the maintenance of public decency and morality and to the conservation of public health,
and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the
just orders and resolutions adopted by the administrative authorities.

It is regrettable that unnecessary rigor was employed against the said poor women, but those who have
been worrying so much about the prejudice resulting from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have failed to consider with due reflection the interests of the
inhabitants of this city in general and particularly the duties and responsibilities weighing upon the
authorities which administer and govern it; they have forgotten that many of those who criticize and
censure the mayor are fathers of families and are in duty bound to take care of their children.

For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal
life they assumed, were obliged to change their residence not by a private citizen but by the mayor of the
city who is directly responsible for the conservation of public health and social morality, the latter could
take the step he had taken, availing himself of the services of the police in good faith and only with the
purpose of protecting the immense majority of the population from the social evils and diseases which the
houses of prostitution situated in Gardenia Street have been producing, which houses have been
constituting for years a true center for the propagation of general diseases and other evils derived
therefrom. Hence, in ordering the dissolution and abandonment of the said houses of prostitution and the
change of the domicile of the inmates thereof, the mayor did not in bad faith violate the constitutional laws
which guarantees the liberty and the individual rights of every Filipino, inasmuch as the women petitioners
do not absolutely enjoy the said liberty and rights, the exercise of which they have voluntarily renounced
in exchange for the free practice of their shameful profession.

In very highly advanced and civilized countries, there have been adopted by the administrative authorities
similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the
people, although it is true that in the execution of such measures more humane and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had
in view the ultimate object of the Government for the sake of the community, that is, putting an end to the
living together in a certain place of women dedicated to prostitution and changing their domicile, with the
problematical hope that they adopt another manner of living which is better and more useful to
themselves and to society.

In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged
to take back and restore the said women who are at present found in Davao, and who desire to return to
their former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the
prostitutes who should expressly make known to the clerk of court their preference to reside in Davao,
which manifestation must be made under oath. This resolution must be transmitted to the mayor within
the shortest time possible for its due compliance. The costs shall be charged de officio.

ARAULLO, J., dissenting in part:

I regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according to the
same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him of
a nominal fine of P100.
In the said decision, it is said:

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yñigo to present the persons named in the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The respondents were thus given ample time, practically
one month, to comply with the writ. As far as the record disclosed, the mayor of the city of Manila
waited until the 21st of November before sending a telegram to the provincial governor of Davao.
According to the response of the Attorney for the Bureau of Labor to the telegram of his chief,
there were then in Davao women who desired to return to Manila, but who should not be
permitted to do so because of having contracted debts. The half-hearted effort naturally resulted
in none of the parties in question being brought before the court on the day named.

In accordance with section 87 of General Orders No. 58, as said in the same decision, the respondents,
for the purpose of complying with the order of the court, could have, (1) produced the bodies of the
persons according to the command of the writ; (2) shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought before this court; and (3) presented affidavits to
show that the parties in question or their lawyers waived their right to be present. According to the same
decision, the said respondents ". . . did not produce the bodies of the persons in whose behalf the writ
was granted; did not show impossibility of performance; and did not present writings, that waived the right
to be present by those interested. Instead, a few stereotyped affidavits purporting to show that the women
were contented with their life in Davao, some of which have since been repudiated by the signers, were
appended to the return. That through ordinary diligence a considerable number of the women, at least
sixty, could have been brought back to Manila is demonstrated by the fact that during this time they were
easily to be found in the municipality of Davao, and that about this number either returned at their own
expense or were produced at the second hearing by the respondents."

The majority opinion also recognized that, "That court, at the time the return to its first order was made,
would have been warranted summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the non production of the persons were
far from sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo,
Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible
effort to produce the women was made by the respondents."

When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10, 1918, requiring the respondents to
produce before the court, on January 13, 1919, the women who were not in Manila, unless they could
show that it was impossible to comply with the said order on the two grounds previously mentioned. With
respect to this second order, the same decision has the following to say:

In response to the second order of the court, the respondents appear to have become more
zealous and to have shown a better spirit. Agents were dispatched to Mindanao, placards were
posted, the constabulary and the municipal police joined in rounding up the women, and a
steamer with free transportation to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a critical reading of the record might
reveal a failure of literal fulfillment with our mandate, we come to conclude that there is a
substantial compliance with it.

I do not agree to this conclusion.

The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the
issuance of the first order on November 4th till the 21st of the same month before taking the first step for
compliance with the mandate of the said order; he waited till the 21st of November, as the decision says,
before he sent a telegram to the provincial governor o f Davao and naturally this half-hearted effort, as is
so qualified in the decision, resulted in that none of the women appeared before this court on December
2nd. Thus, the said order was not complied with, and in addition to this noncompliance there was the
circumstances that seven of the said women having returned to Manila at their own expense before the
said second day of December and being in the antechamber of the court room, which fact was known to
Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were
not produced before the court by the respondents nor did the latter show any effort to present them, in
spite of the fact that their attention was called to this particular by the undersigned.

The result of the said second order was, as is said in the same decision, that the respondents, on
January 13th, the day fixed for the protection of the women before this court, presented technically the
seven (7) women above-mentioned who had returned to the city at their own expense and the other eight
(8) women whom the respondents themselves brought to Manila, alleging moreover that their agents and
subordinates succeeded in bringing them from Davao with their consent; that in Davao they found eighty-
one (81) women who, when asked if they desired to return to Manila with free transportation, renounced
such a right, as is shown in the affidavits presented by the respondents to this effect; that, through other
means, fifty-nine (59) women have already returned to Manila, but notwithstanding the efforts made to
find them it was not possible to locate the whereabouts of twenty-six (26) of them. Thus, in short, out of
the one hundred and eighty-one (181) women who, as has been previously said, have been illegally
detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will, only
eight (8) have been brought to Manila and presented before this court by the respondents in compliance
with the said two orders. Fifty-nine (59) of them have returned to Manila through other means not
furnished by the respondents, twenty-six of whom were brought by the attorney for the petitioners,
Mendoza, on his return from Davao. The said attorney paid out of his own pocket the transportation of the
said twenty-six women. Adding to these numbers the other seven (7) women who returned to this city at
their own expense before January 13 we have a total of sixty-six (66), which evidently proves, on the one
hand, the falsity of the allegation by the respondents in their first answer at the trial of December 2, 1918,
giving as one of the reasons for their inability to present any of the said women that the latter were
content with their life in Mindanao and did not desire to return to Manila; and, on the other hand, that the
respondents, especially the first named, that is Mayor Justo Lukban, who acted as chief and principal in
all that refers to the compliance with the orders issued by this court, could bring before December 2nd,
the date of the first hearing of the case, as well as before January 13th, the date fixed for the compliance
with the second order, if not the seventy-four (74) women already indicated, at least a great number of
them, or at least sixty (60) of them, as is said in the majority decision, inasmuch as the said respondent
could count upon the aid of the Constabulary forces and the municipal police, and had transportation
facilities for the purpose. But the said respondent mayor brought only eight (8) of the women before this
court on January 13th. This fact can not, in my judgment, with due respect to the majority opinion, justify
the conclusion that the said respondent has substantially complied with the second order of this court, but
on the other hand demonstrates that he had not complied with the mandate of this court in its first and
second orders; that neither of the said orders has been complied with by the respondent Justo Lukban,
Mayor of the city of Manila, who is, according to the majority decision, principally responsible for the
contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second
order confirms the contempt committed by non-compliance with the first order and constitutes a new
contempt because of non-compliance with the second, because of the production of only eight (8) of the
one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be found in
Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals with the
remedy of habeas corpus, presented by the petitioners and involving the question whether they should or
not be granted their liberty, the respondent has not given due attention to the same nor has he made any
effort to comply with the second order. In other words, he has disobeyed the said two orders; has
despised the authority of this court; has failed to give the respect due to justice; and lastly, he has created
and placed obstacles to the administration of justice in the said habeas corpus proceeding, thus
preventing, because of his notorious disobedience, the resolution of the said proceeding with the
promptness which the nature of the same required.
 Contempt of court has been defined as a despising of the authority, justice, or dignity of the court;
and he is guilty of contempt whose conduct is such as tends to bring the authority and
administration of the law into disrespect or disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)

It is a general principle that a disobedience of any valid order of the court constitutes contempt,
unless the defendant is unable to comply therewith. (Ruling Case Law, vol. 6, p. 502.)

It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt
to obstruct the service of legal process. If a person hinders or prevents the service of process by
deceiving the officer or circumventing him by any means, the result is the same as though he had
obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)

While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect
for the law and for the means it has provided in civilized communities for establishing justice,
since true respect never comes in that way, it is apparent nevertheless that the power to enforce
decorum in the courts and obedience to their orders and just measures is so essentially a part of
the life of the courts that it would be difficult to conceive of their usefulness or efficiency as
existing without it. Therefore it may be said generally that where due respect for the courts as
ministers of the law is wanting, a necessity arises for the use of compulsion, not, however, so
much to excite individual respect as to compel obedience or to remove an unlawful or
unwarranted interference with the administration of justice. (Ruling Case Law, vol. 6, p. 487.)

The power to punish for contempt is as old as the law itself, and has been exercised from the
earliest times. In England it has been exerted when the contempt consisted of scandalizing the
sovereign or his ministers, the law-making power, or the courts. In the American states the power
to punish for contempt, so far as the executive department and the ministers of state are
concerned, and in some degree so far as the legislative department is concerned, is obsolete, but
it has been almost universally preserved so far as regards the judicial department. The power
which the courts have of vindicating their own authority is a necessary incident to every court of
justice, whether of record or not; and the authority for issuing attachments in a proper case for
contempts out of court, it has been declared, stands upon the same immemorial usage as
supports the whole fabric of the common law. . . . (Ruling Case Law, vol. 6, p. 489.)

The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige
of the authority of the court which issued the said orders, which loss might have been caused by
noncompliance with the same orders on the part of the respondent Justo Lukban; the damages which
might have been suffered by some of the women illegally detained, in view of the fact that they were not
brought to Manila by the respondents to be presented before the court and of the further fact that some of
them were obliged to come to this city at their own expense while still others were brought to Manila by
the attorney for the petitioners, who paid out of his own pocket the transportation of the said women; and
the delay which was necessarily incurred in the resolution of the petition interposed by the said petitioners
and which was due to the fact that the said orders were not opportunately and duly obeyed and complied
with, are circumstances which should be taken into account in imposing upon the respondent Justo
Lukban the penalty corresponding to the contempt committed by him, a penalty which, according to
section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or
imprisonment not exceeding months, or both such fine and imprisonment. In the imposition of the penalty,
there should also be taken into consideration the special circumstance that the contempt was committed
by a public authority, the mayor of the city of Manila, the first executive authority of the city, and
consequently, the person obliged to be the first in giving an example of obedience and respect for the
laws and the valid and just orders of the duly constituted authorities as well as for the orders emanating
from the courts of justice, and in giving help and aid to the said courts in order that justice may be
administered with promptness and rectitude.

I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon
the respondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged
against him. Lastly, I believe it to be my duty to state here that the records of this proceeding should be
transmitted to the Attorney-General in order that, after a study of the same and deduction from the
testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city of
Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding informations
for the prosecution and punishment of the crimes which have been committed on the occasion when the
illegal detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and
Chief of Police Anton Hohmann, and also of those crimes committed by reason of the same detention and
while the women were in Davao. This will be one of the means whereby the just hope expressed in the
majority decision will be realized, that is, that in the Philippine Islands there should exist a government of
laws and not a government of men and that this decision may serve to bulwark the fortifications of an
orderly Government of laws and to protect individual liberty from illegal encroachments.

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. Tañada, Wigberto Tañada 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 Garcia-Padilla 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
appellate Court. 11

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 Garcia-Padilla 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." 7Between 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. Tan-Gatue 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 in pro 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 factorebel 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
How do we know how many more lawyers will be in the future arrested. 12

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 of welgasconducted 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 the welga 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 continued detention? 16

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
witnesses and 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 are so 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 demonstrationagainst 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 motion on 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 Paño, 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
case moot and academic. 22

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,
" 24 should 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 ." 26 This 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. Tañada 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 petitioners-lawyers 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 Malacañang 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 that preservation 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
petitioners-lawyers, 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 Compañero, 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 now the evidence. 43-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
petitioners-lawyers, 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 the central 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
largest possible extent in his thoughts and in his beliefs as the citadel of his person. 44

(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
general principles. 45

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
submitted to a vote; they depend on the outcome of no elections. 46 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
authority it was entitled to exercise. 47

(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
talk, but also to benefit the majority who refuse to listen. 48 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are
not safe unless the liberties of all are protected. 49

(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
property rights is recognized. 50 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
space to survive,' permitting government regulation only 'with narrow specificity. 51

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
political institutions;52 and such priority 'gives these liberties a sanctity and a sanction not
permitting dubious intrusions. 53

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
rubbing salt on bruised tissues. 54

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. Paño 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 Bataanagainst, 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 in Escalante, 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 shoot-to-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
snuffed on 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." 60The 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."63 This 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 petitioners-lawyers 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
delictoviolating 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 petitioners-lawyers 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 Abejuelacited 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 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 whole-
hearted support in demanding justice for our cause. 75

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 dismantle the 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 the lese majeste when the voice of the King was the voice
of God so that those who are touched by his absolute 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 to depend 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
respondents. 76

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

without brakes. 77

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-parte proceedings 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 Garcia-Padilla 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." 7Between 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. Tan-Gatue 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 in pro 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 factorebel 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
How do we know how many more lawyers will be in the future arrested. 12

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 of welgasconducted 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 the welga 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 continued detention? 16

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
witnesses and 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 are so 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 demonstrationagainst 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 motion on 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 Paño, 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
case moot and academic. 22
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,
" 24 should 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 ." 26 This 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. Tañada 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 petitioners-lawyers 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 Malacañang 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 that preservation 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
petitioners-lawyers, 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 Compañero, 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 now the evidence. 43-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
petitioners-lawyers, 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 the central 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
largest possible extent in his thoughts and in his beliefs as the citadel of his person. 44

(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
general principles. 45

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
submitted to a vote; they depend on the outcome of no elections. 46 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
authority it was entitled to exercise. 47

(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
talk, but also to benefit the majority who refuse to listen. 48 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are
not safe unless the liberties of all are protected. 49

(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
property rights is recognized. 50 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
space to survive,' permitting government regulation only 'with narrow specificity. 51

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
 political institutions;52 and such priority 'gives these liberties a sanctity and a sanction not
permitting dubious intrusions. 53

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
rubbing salt on bruised tissues. 54

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. Paño 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 Bataanagainst, 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 in Escalante, 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 shoot-to-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
snuffed on 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." 60The 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."63 This 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 petitioners-lawyers 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
delictoviolating 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 petitioners-lawyers 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 Abejuelacited 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 whole-
hearted support in demanding justice for our cause. 75

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 dismantle the 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 the lese majeste when the voice of the King was the voice
of God so that those who are touched by his absolute 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 to depend 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
respondents. 76

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

without brakes. 77

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-parte proceedings 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 opini

G.R. No. L-2128 May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners,

vs.
THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF
MANILA,respondents.

Enrique Q. Jabile for petitioners.

Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and D. Guinto Lazaro for
respondents.

FERIA, J.:

Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of
robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948,
and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, when the
petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under
arrest, and the city fiscal had not yet released or filed against them an information with the proper courts
justice.

This case has not been decided before this time because there was not a sufficient number of Justices to
form a quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in
Baguio for deliberation and decision. We have not until now an official information as to the action taken
by the office of the city fiscal on the complaint filed by the Dumlao against the petitioners. But whatever
night have been the action taken by said office, if there was any, we have to decide this case in order to
lay down a ruling on the question involved herein for the information and guidance in the future of the
officers concerned.

The principal question to be determined in the present case in order to decide whether or not the
petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial
authority within the meaning of the provisions of article 125 of the Revised Penal Code?

Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article
shall be imposed upon the public officer or employee who shall detain any person for some legal ground
and shall fail to deliver such person to the proper judicial authorities within the period of six hours."

Taking into consideration the history of the provisions of the above quoted article, the precept of our
Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest
and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean
the courts of justices or judges of said courts vested with judicial power to order the temporary detention
or confinement of a person charged with having committed a public offense, that is, "the Supreme Court
and such inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.)

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code
formerly in force of these Islands, which penalized a public officer other than a judicial officer who, without
warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to the judicial
authority within twenty four hours after his arrest." There was no doubt that a judicial authority therein
referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the
temporary commitment or detention of the person arrested; and not the city fiscals or any other officers,
who are not authorized by law to do so. Because article 204, which complements said section 202, of the
same Code provided that "the penalty of suspension in its minimum and medium degrees shall be
imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the
provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to
commit such prisoner formally by written order containing a statement of the grounds upon which the
same is based."

Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the
Revised Penal Code the import of said words judicial authority or officer can not be construed as having
been modified by the mere omission of said provision in the Revised Penal Code.

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in
their persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or
confinement] shall issue but upon probable cause, to be determined by the judge after the examination
under oath or affirmation of the complaint and the witness he may produce." Under this constitutional
precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon
probable cause by a judge after examination of the complainant and his witness. And the judicial authority
to whom the person arrested by a public officers must be surrendered can not be any other but court or
judge who alone is authorized to issue a warrant of commitment or provisional detention of the person
arrested pending the trial of the case against the latter. Without such warrant of commitment, the
detention of the person arrested for than six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of
an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without
unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested
to the proper court or judge for such action for they may deem proper to take;" and by section 11 of Rule
108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed
of the complaint or information filed against him. He shall also informed of the substance of the testimony
and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in
his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but
that of the defendant shall be taken in writing and subscribed by him.

And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court.
According to the provision of said section, "a writ of habeas corpus shall extend any person to all cases of
illegal confinement or detention by which any person is illegally deprived of his liberty"; and "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 judgement or order of a court of record, and that the court or
judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be
allowed. "Which a contrario sensu means that, otherwise, the writ shall be allowed and the person
detained shall be released.

The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to
include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or
of commitment or temporary confinement of a person surrendered to legalize the detention of a person
arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13;
Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which
the city of fiscal of Manila makes is not the preliminary investigation proper provided for in section 11,
Rule 108, above quoted, to which all person charged with offenses cognizable by the Court of First
Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of
filing the corresponding information against the defendant with the proper municipal court or Court of First
Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court
a warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the
preliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since defendant
charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary
investigation.

The only executive officers authorized by law to make a proper preliminary investigation in case of
temporary absence of both the justice of the peace and the auxiliary justice of the peace from the
municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant
of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of
Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the
investigation referred to in the proceeding paragraph.

Under the law, a complaint charging a person with the commission of an offense cognizable by the courts
of Manila is not filed with municipal court or the Court of First Instance of Manila, because as above
stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made
or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the
investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court
the necessary information against the accused if the result of the investigation so warrants, and obtaining
from the court a warrant of arrest or commitment of the accused.

When a person is arrested without warrant in cases permitted bylaw, the officer or person making the
arrest should, as abovestated, without unnecessary delay take or surrender the person arrested, within
the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or
make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and
decide the case if the court has original jurisdiction over the offense charged, or make the preliminary
investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to
the proper Court of First Instance in accordance with the provisions of section 13, Rule 108.

In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First
Instance, the officer or person making the arrest without warrant shall surrender or take the person
arrested to the city fiscal, and the latter shall make the investigation above mentioned and file, if proper,
the corresponding information within the time prescribed by section 125 of the Revised Penal Code, so
that the court may issue a warrant of commitment for the temporary detention of the accused. And the city
fiscal or his assistants shall make the investigation forthwith, unless it is materially impossible for them to
do so, because the testimony of the person or officer making the arrest without warrant is in such cases
ready and available, and shall, immediately after the investigation, either release the person arrested or
file the corresponding information. If the city fiscal has any doubt as to the probability of the defendant
having committed the offense charged, or is not ready to file the information on the strength of the
testimony or evidence presented, he should release and not detain the person arrested for a longer
period than that prescribed in the Penal Code, without prejudice to making or continuing the investigation
and filing afterwards the proper information against him with the court, in order to obtain or secure a
warrant of his arrest. Of course, for the purpose of determining the criminal liability of an officer detaining
a person for more than six hours prescribed by the Revised Penal Code, the means of communication as
well as the hour of arrested and other circumstances, such as the time of surrender and the material
possibility for the fiscal to make the investigation and file in time the necessary information, must be taken
into consideration.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code,
would be to authorize the detention of a person arrested without warrant for a period longer than that
permitted by law without any process issued by a court of competent jurisdiction. The city fiscal, may not,
after due investigation, find sufficient ground for filing an information or prosecuting the person arrested
and release him, after the latter had been illegally detained for days or weeks without any process issued
by a court or judge.

A peace officer has no power or authority to arrest a person without a warrant upon complaint of the
offended party or any other person, except in those cases expressly authorized by law. What he or the
complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the
justice of the peace courts in municipalities and other political subdivisions. If the City Fiscal has no
authority, and he has not, to order the arrest even if he finds, after due investigation, that there is a
probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has
no authority to arrest and detain a person charged with an offense upon complaint of the offended party
or other persons even though, after investigation, he becomes convinced that the accused is guilty of the
offense charged.

In view of all the foregoing, without making any pronouncement as to the responsibility of the officers who
intervened in the detention of the petitioners, for the policeman Dumlao may have acted in good faith, in
the absence of a clear cut ruling on the matter in believing that he had complied with the mandate of
article 125 by delivering the petitioners within six hours to the office of the city fiscal, and the latter might
have ignored the fact that the petitioners were being actually detained when the said policeman filed a
complaint against them with the city fiscal, we hold that the petitioners are being illegally restrained of
their liberty, and their release is hereby ordered unless they are now detained by virtue of a process
issued by a competent court of justice. So ordered.

Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.

Separate Opinions

PERFECTO, J.:, concurring:

Petitioners Melencio Sayo and Joaquin Mostero were apprehended at 11:30 in the morning of April 2,
1948, upon complaint of Bernardino Malinao, for the crime of alleged robbery.

The fact is alleged expressly in respondent's answer supported by the affidavit of Benjamin Dumlao
(Exhibit 1), the patrolman who made the arrest. Therein it is also alleged that petitioners were "finally"
placed under arrest at 4:30 p.m. and 5:00 p.m. respectively, on the same day, April 2, l948.

The distinction between the two arrests, the apprehension made at 11:00 a.m. and the "final arrest at 4:30
and 5:00 p.m., is purely academic or imaginary. There was but one arrest, effected at 11:00 a.m., April 2,
1948, and continued without interruption until the petition had been filed with us April 5, 1948, at the
hearing on the next day. Until the moment we are writing this opinion we have not heard that petitioners
have been released at any time.

Respondents allege also that on April 3, 1948, at about 8:30 a.m., a criminal complaint was filed with the
fiscal's office of Manila, and that by said filing their duty to deliver arrested persons, within six hours from
their arrest, to a proper judicial authority has been duly complied with.

There is no dispute that no warrant of arrest has ever been issued for the apprehension of petitioners.
Petitioners pray for their immediate release, alleging that, as the six-hour period provided in article 125 of
the Revised Penal Code had expired, their continued detention is illegal.

Article 125 of the Revised Penal Code provides for the penalty of arresto mayor or in its maximum period
to reclusion temporal, or from 4 months and 11 days to 20 years imprisonment, for the crime of a public
officer or employee who, after detaining a person, "shall fail to deliver such person to the proper judicial
authorities within the period of six hours."

Both parties implying from the above provision that after six hours of said failure, petitioners shall be
entitled to be released, discussed the question whether there is such failure or not.

Upon the very facts alleged by respondents and supported by documentary evidence accompanying it,
there should not be any dispute that there is such failure.

(a) Respondents have not delivered the persons of petitioners to any authority, and much less to any
judicial authority.

(b) Their filing of a complaint with the office of the fiscal of Manila is not a delivery of the persons of
petitioners. Said persons are not a complaint. A complaint, whether oral or written, can never be elevated
to the category of the person. No one is crazy enough to confuse or identify a person with a complaint.

(c) Even in the false hypothesis that respondents, by filing the complaint, intended to make a delivery of
the persons of petitioners, if not actually, constructively, the fiscal's office is not a judicial authority.

(d) Under our Constitution and laws, judicial authorities comprehend only courts of justice, such as the
Supreme Court and all other inferior Court, and justices and judges. The authority possessed and
exercised by judicial authorities is judicial, and the Constitution(section 1, Article VIII) vests the judicial
power exclusively "in one Supreme Court and in such inferior courts as may be established by law."

Respondents' pretension in making the fiscal of Manila a judicial authority is absolutely groundless, upon
the clear letter of the fundamental law. Counsel for respondents himself had to admit that said officer
belongs to the administrative or executive department. Under the tripartite system of the government
established by the Constitution, it is extreme absurdity to make an administrative or executive officer, or
any officer of the executive department or branch, a judicial authority. Such will make of separation of
powers a madman's illusion.

That a fiscal is not a judicial authority has been unmistakably declared in the decision in Lino vs. Fugoso,
L-1159, 43 Off. Gaz., 1214. The statement made therein that there was yet no purpose of deciding
whether a fiscal is a judicial authority or not, is just a rhetorical figure that is a judicial authority or not, is
just a rhetorical figure that should not deceive any one. All those who can read, will that the decision has
made the declaration. It is there stated in plain language that the fiscal is "unlike" a judicial authority.

"Unlike" means, as an elementary school student knows, not like, dissimilar, diverse, different.

No warrant of arrest having been issued by any competent tribunal for the apprehension of petitioners,
said apprehension appears to be illegal.

At any rate, even under the hypothesis that it was legal and continued to be so for six hours, this time
having expired seven days ago, the continued detention and confinement of petitioners is clearly illegal,
and not only illegal but criminal, involving an offense committed by public officers and heavily punished by
the Revised Penal Code.
Regarding the question as to legality of the arrest, counsel for respondents has advanced the shocking
theory that police officers may arrest any person just for questioning or investigation, without any warrant
of arrest.

The theory is absolutely unconstitutional and could have been entertained only under the "Kempei"
system implanted by the brutal Japanese army occupation. Such theory represents an ideology
incompatible with human dignity. Reason revolts against it.

Respondents are ordered, upon notice of the decision, to immediately release the two petitioners and to
report to this Court the time when the release shall have been effected.

TUASON, J., dissenting:

I dissent on the grounds stated in my dissent in Lino vs. Fugoso et al., Off. Gaz., 1214.

RESOLUTION

August 27, 1948

FERIA, J.:

This is a motion for reconsideration of our decision which holds that the phrase "judicial authority" used in
the article 125 of the Revised Penal Code, to whom a person arrested without warrant shall be delivered
by the officer making the arrest within the period of six hours from the arrest, means a competent court or
judge, and the City Fiscal is not such a judicial authority.

We have already held, in the United States vs. Fortaleza, 12 Phil., 472,477-479, that the provisions of the
Provisional Law for the application of the provisions of the Spanish Penal Code in the Philippines by
Royal Decree of September 4, 1884, are in force of this Islands insofar as they have not been repealed or
amended by implication by the enactment of the body of laws put in force in these Islands since the
change from Spanish to American sovereignty. According to the ruling of this court in said case, a person
may be arrested without warrant in the cases specified in Rules 27 and 28 of said provisional law and
section 37 of Act No. 183 (Charter of Manila). The provisions of said Rules 27 and 28 are substantially
the same of those contained in section 6 Rule 109 of the Rules of Court which superseded them; and the
provisions of section 37 of Act No. 183 above reffered to have been incorporated in section 2463 of the
Revised Administrative Code. Both section 6 of Rule 109, and the pertinent provisions of said section
2463 of the Revised Administrative Code are now the laws in force on the subject.

Article 30 of said Provisional Law for the application of the Penal Law in the Philippines also provides:

The executive authorities or the agents detaining a person shall release the same or else turn him
over to the judicial authorities within twenty four hours after the arrest if made in the head town of
the district, or within as brief a period as the distance and transportation facilities permit.

And the next article 31 of the same law reads as follows:

 Within twenty four hours after the person arrested has been surrendered to the competent judge
of Court of First Instance, the latter shall order the commitment or release of the prisoner by
warrant containing the grounds on which it is based (auto motivado).

If it is impossible to do so because of the complexity of the facts, the number of defendants or any
other serious cause, which must be made of record, the time of detention may be extended to
three days. Upon the expiration of that period of time the judge shall order the commitment or the
release of the defendant. The warrant of commitment shall be ratified after the defendant has
been heard within the period of sixty two hours from the time the defendant has been committed
to prison.

Said Rule 30 has been modified by section 17, Rule 109, which provides that "Any person making arrest
for legal ground shall, without unnecessary delay and within the time prescribed in the Revised Peal
Code, take the person arrested to the proper court or judge for such action as they may deem proper to
take," and by article 125 of the Revised Penal Code already quoted.

But the provisions of Rule 31 above quoted are still in force because they may have not been repealed,
either expressly or by implication, by any law or the present Rules of Court, except the last sentence,
thereof which is no longer in force. The procedure of hearing the accused after he has been committed to
prison referred to in said last sentence, is a sort preliminary investigation by the judge or justice of the
peace according to the present procedure. Persons arrested or accused in the City of Manila are not
entitled to such investigation. In provinces the justice of the peace or judge shall, according to section 2 of
Act No. 194, "make the preliminary investigation of the charge as speedily as may be consistent with the
right and justice, but in any event he must make the investigation within three days of the time the
accused was brought before him, unless the accused or complainant shall ask for delay in order that
witnesses may be obtained, or for other good and sufficient reason, in which event a continuance for a
reasonable time may be allowed." This provision of section 2 of Act No. 194 is still in force, because no
law has been enacted amending or repealing it. (Marcos vs. Cruz [May 13, 1939] 1st Supp., 40 Off. Gaz.,
174, 182.) The Rules of Court on Criminal Procedure do not undertake to dispose of all subjects of
preliminary investigation, and repeal all laws on the subject not incorporated therein; especially those
that, like the said provisions of section 2, Act No. 194, confer substantive rights upon defendants which
can not be diminished, increased or modified by the Rules of Court (section 13, Article VIII, of the
Constitution).

In view of the provisions of section 17, Rule 109, Rule 31 of the Provisional Law, article 204 of the old
Penal Code, from which article 125 of the Revised Penal Code was taken, and section 1 (3) Article III of
the Constitution, there can be no doubt that the judicial authority within the meaning of article 125 of the
Revised Penal Code must be a judge who has authority to issue a written warrant of commitment or
release containing the ground on which it is based (auto motivado). Because said section 17 of Rule 109
expressly provides that the officer making the arrest without warrant shall, within the time prescribed in
the Revised Penal Code, take the person arrested to a court or judge for such action as the latter may
deem proper to take; Rule 31 expressly states that, within twenty four hours or at most three days after
the person arrested has been delivered to the judge of Court of First Instance (and alsothe justice of the
peace now), the latter shall order the commitment or release of the prisoner by a warrant containing the
ground upon which the commitment or release is based (auto motivado); article 204 of the Penal Code
(not incorporated in the Revised Penal Code), penalize the judicial authority or judge who fails to comply
with the provisions of said Rule 31; and section 1(3) Article III of the Constitution provides that no warrant
shall issue but upon probable cause, to be determined by the judge after examination under oath or
affidavit of the complainant and witnesses he may produce," in order to safeguard "the right of the people
to be secured in their person ... against unreasonable seizure" or detention for a longer period than that
fixed or considered by law as reasonable (six hours according to section 125 of the Revised Penal Code).

It is obvious that the city fiscal is not a city judge, and has no power to issue order or commitment or
release by a written warrant containing the ground on which it is based. As a matter of fact the city fiscal
has never exercised such power since that office was created. In justice to the city fiscal, we have to state
that the latter did not and does not contend in his motion for reconsideration that it has the power to issue
such a warrant, as contended in the dissenting opinion.

To consider a city fiscal as a judicial authority within the meaning of article 125 of the Revised Penal
Code, would be to place a person arrested in provinces without warrant in a better position than those
arrested in the City of Manila. Because, as there is no law requiring the city fiscal to act or file an
information against such person within a limited period of time, after the arresting officer has taken the
prisoner to the city fiscal within six hours, the prisoner may be held under detention without any warrant
for days and weeks and possibly months until such time as the city fiscal may take action, either by
releasing the prisoner without filing any information, or filing an information with the proper city court and
obtain a warrant of commitment. While a person arrested outside of the City of Manila has to be delivered
by the arresting person or peace officer to the competent judge within six hours after his arrest, and the
latter shall have to investigate the charge and issue a warrant of release or commitment of the prisoner
within the period of twenty four hours or at most three days prescribed in said article 31 of the Provisional
Law.

It is obvious that the surrender or delivery to the judicial authority of a person arrested without warrant by
a peace officer, does not consist in a physical delivery, but in making an accusation or charge or filing of
an information against the person arrested with the corresponding court or judge, whereby the latter
acquires jurisdiction to issue an order of release or of commitment of the prisoner, because the arresting
officer can not transfer to the judge and the latter does not assume the physical custody of the person
arrested. And in the City of Manila it does consist in delivering physically the body of the prisoner to the
city fiscal, for the latter will not assume the responsibility of being the custodian of the prisoner; nor in
making or lodging a complaint against him with the said fiscal, because the latter has no power to order
the commitment or release of the prisoner by a warrant containing the ground on which it is based (auto
motivado). Such delivery is a legal one and consists in making a charge or filing a complaint against the
prisoner with the proper justice of the peace or judge of Court of First Instance in provinces, and in filing
by the city fiscal of an information with the corresponding city courts after an investigation if the evidence
against said person so warrants. Upon the filing of such information will the prisoner be deemed deliver to
a judicial authority in the City of Manila within the meaning of article 125 of the Revised Penal Code?

The city court or judge need not make an investigation of the facts alleged in the information, which the
judge or justices of the peace in provinces have to make before issuing the proper warrant, because the
law vest the power in the city fiscal, but said city judge shall determine only the legal question whether
said facts constitute an offense or violation of ordinances, and issue a warrant of commitment if they do,
or of release if they do not.

As a peace officer can not deliver directly the person arrested to the city courts, he shall deliver him to
said court through the city fiscal, and if the latter does not take the prisoner in time to the latter so that the
proper investigation may be made and information filed within six hours, he has to release the prisoner in
order to avoid criminal liabilty for violation of article 125 of the Revised Penal Code. The city fiscal is not
an agent of the arresting officer, but as prosecuting officer, he will be recreant to his duty if he does not do
his best to make the investigation and file the corresponding information in time against the person
arrested without warrant, in order to effect the delivery of the prisoner to the city courts within the period
of six hours prescribed by law, and thus prevent his being released by the officer making the arrest. If the
city fiscal does not file the information within said period of time and the arresting officer continues holding
the prisoner beyond the six-hour period, the fiscal will not be responsible for violation of said article 125,
because he is not the one who arrested and illegally detained the person arrested, unless he has ordered
or induced the arresting officer to hold and not release the prisoner after the expiration of said period.

Section 2640 of the Revised Administrative Code which specifies the powers and duties of chief of police
of the City of Manila, authorizes the latter "to take good and sufficient bail for the appearance before the
city court of any person arrested for violation of any city ordinance: Provided, however, That he shall not
exercise this power in cases of violation of any penal law except when the fiscal of the city shall so
recommend and fix the bail to be required of the person arrested." These provisions do not authorize,
either expressly or by implication, the city fiscal to order the detention of the prisoner if bond is not given,
not only because they refer to the powers of the chief of police of Manila and not of the city fiscal, but
because the only incidental authority granted to the latter is to recommend the granting of the bail to be
required of the person arrested for violation of any penal law in order that the chief of police may release
the latter on bail. If no bail is given by the person arrested, neither the chief of police, who is only
authorized to release on bail, has power to detain the person arrested for more than six hours; nor the city
fiscal, who is only empowered to fix and recommend the bail to the chief of police, has authority to order
the detention of persons arrested for violation of a penal law.

The above-quoted provisions of section 2640 of the Revised Administrative Code refers evidently to
persons arrested without warrant, for accused arrested by virtue of a warrant issued by the courts may be
released on bail only by order of the court or judge that issued the warrant and has exclusive jurisdiction
or control over the person arrested. The purpose of the law in empowering the chief of police of Manila to
release the prisoner if he sets up a bail, is to relieve the officer making the arrest from the necessity of
taking the prisoner to the city fiscal, and the latter from filing an information with the proper courts within
the period of time prescribed by law.

The dissenting opinion calls a general principle of law an excerpt of the Corpus Juris Secundum quoted
therein which says that "the officer however need not necessarily have personal knowledge of the facts
constituting the offense in the sense of having seen or witnessed the offense himself, but he may if there
are no circumstances known to him by which materially impeach his information, acquire his knowledge
from information imparted to him by reliable and credible third persons or by the information together with
other suspicious circumstances" (6 C.J.S., 599, 600), and after the quotation adds: "This is a common law
rule implanted in the Philippines along with its present form of government, a rule which has been cited
and applied by this Court in a number of cases (U. S. vs. Santos, 36 Phil., 853; U. S. vs. Batallones, 23
Phil., 46; U. S. vs. Samonte, 16 Phil., 516).

The above-quoted excerpt is not a general principle of law or a common law rule implanted in the
Philippines. It is a summary of the ruling of several State courts based on statutory exceptions of the
general rule. "It is the general rule, although there are statutory exceptions and variations, that a peace
officer has no right to make an arrest without a warrant, upon a mere information of a third person" (5
C.J., p. 404), because "statutes sometime authorize peace officer to make arrest upon information" (4
Am. Jur., p. 17). In none of the cases cited in the dissenting opinion has this Court quoted and applied it.
In U.S. vs. Fortaleza, 12 Phil., 472, this Court, after quoting Rules 27 and 28 of the "Provisional Law for
the Application of the Penal Law" and section 37, Act No. 183, as the law in force in force in these Islands
providing for cases in which a person may be arrested without a warrant, said:

These provisions quite clearly set out the powers usually conferred by American and English law
upon "peace officers" including "constables," in making arrests without warrants; and since similar
powers are clearly included in the powers conferred upon "agents of authority" in the above cited
articles of the "Provisional Law," there can be no doubt that the Commission, in imposing the duty
of maintaining order and preserving and protecting life and property within their respective barrios
upon municipal councilors and their lieutenants of barrios, conferred upon such officials authority
to make arrests without warrant not less extensive than that conferred upon peace officers in
Manila in the above-cited provisions of the Manila Charter. (United States vs. Vallejo, No. 4367,
decided by this court on September 3, 1908; also United States vs. Burgueta, 10 Phil., 188.)
(Emphasis ours.)

The case of U.S. vs. Samonte, 16 Phil., 516, one of the cases cited in the last paragraph of the dissenting
opinion, does not contain anything about the implantation in these Islands of the so-called common law
rule. In the case of U.S. vs. Battallones (not Ballesteros) 23 Phil., 46, cited also therein, this Court,
following the ruling in U.S. vs. Fortaleza, said:

In a former case we held that officials in these Islands, who, "by direct provisions of law or by
appointment of competent authority are charged with the maintenance of public order and the
 protection and security of life and property," have authority to make arrests without warrant
substantially similar to the authority generally conferred upon "peace officers" in the United
States, and more especially that class of `peace officers' known to American and English law
as constables; and that "the provisions of section 37 of Act No. 183" (the Charter of Manila) "quite
clearly set forth the powers usually conferred by American and English law upon "peace officers"
including "constables" in making arrests without warrants," and provide that they "may pursue
and arrest without warrant, any person found in suspicious places or under suspicious
circumstances, reasonably tending to show that such person has committed or is about to commit
any crime or breach of the peace; may arrest, or cause to be arrested without warrant, any
offender, when the offense is committed in the presence of a peace officer or within his view".
(U.S. vs. Fortaleza, 12, Phil., 472, 479.)

And in the case of U.S. vs. Santos, 36 Phil., 853, this Supreme Court has reiterated the ruling in the
previous cases and held:

The powers of peace officers in the Philippines, generally stated, are the same as those
conferred upon constables under the Anglo-American Common Law. The extent of their authority
to make arrests without warrant and the limitations thereon, as held by the Supreme Court, are as
stated in the language of the Legislature in the Charter of the City of Manila. (U.S. vs. Fortaleza
[1909], 12 Phil., 472). The Administrative Code (section 2204, edition of 1916; section 2258,
edition of 1917) enjoins municipal policemen to "exercise vigilance in the prevention of public
offenses".

The provisions above quoted of section 37 of Act No. 183 have been incorporated in section 2463 of the
Revised Administrative Code and those of Rules 27 and 28 were substantially incorporated in section 6,
Rule 109 of the Rules of Court. Section 2463 of the Revised Administrative Code reads as follows:

SEC. 2463. Police and other officers — Their powers and duties. — The mayor, the chief and
assistant chief of police, the chief of the secret service, and all officers and members of the city
police and detective force shall be peace officers. Such peace officers are authorized ... to pursue
and arrest, without warrant, any person found in suspicious places or under suspicious
circumstances reasonably tending to show that such person has committed, or is about to
commit, any crime or breach of the peace; to arrest or cause to be arrested, without warrant, any
offender when the offense is committed in the presence of a peace officer or within his view;

And section 6 of Rule 109 provides:

SEC. 6. Arrest without warrant — When lawful. — A peace officer or a private person may,
without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to commit
an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe that
the person to be arrested has committed it;

(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.

These are the only provisions of law in force these Islands which enumerate the cases in which a peace
officer may arrest a person without warrant, and the so called common law relating to other cases of
arrest without warrant cited in the dissenting opinion has no application in this jurisdiction. Therefore, all
the considerations set forth in the said opinion about the disastrous consequences which this Court's
interpretation of article 125 of the Revised Penal Code will bring to a law enforcement, because "the
entire six hours might be consumed by the police in their investigation alone," or that "even if the city
fiscal be given the chance to start his assigned task at the beginning of the six hours period, this time can
not insure proper and just investigation in complicated cases and in cases where the persons arrested
are numerous and witnesses are not at hand to testify," since "the police is not authorized to round up the
witnesses and take them along with the prisoner to the city fiscal," are without any foundation. Because
they are premised on the wrong assumption that, under the laws in force in our jurisdiction, a peace
officer need not have personal knowledge but may arrest a person without a warrant upon mere
information from other person. "The right to make arrests without a warrant is usually regulated by
express statute, and except as authorized by such statutes, an arrest without a warrant is illegal." (5 C.J.,
pp. 395, 396.) And statutory construction extending the right to make arrest without a warrant beyond the
cases provided by law is derogatory of the right of the people to personal liberty (4 Am. Jur., p. 17).

The investigation which the city fiscal has to make before filing the corresponding information in cases of
persons arrested without a warrant, does not require so much time as that made upon a complaint of the
offended parties for the purpose of securing a warrant of arrest of the accused. In all cases above
enumerated in which the law authorizes a peace officer to arrest without warrant, the officer making the
arrest must have personal knowledge that the person arrested has committed, is actually committing, or is
about to commit an offense in his presence or within his view, or of the time, place or circumstances
which reasonably tend to show that such person has committed or is about to commit any crime or
breach of the peace. And the testimony of such officer on the commission of the offense in his presence
or within his view by the person arrested, or on the facts and circumstances that tend reasonably to show
that said person has committed or is about to commit an offense, would be sufficient evidence or basis for
the city fiscal to file an information without prejudice to his presenting of their evidence or witness, if any,
during the trial to insure the conviction of the defendant. If the city fiscal does not believe the testimony of
the officer making the arrest or consider it sufficient, or has any doubt as to the probability of the prisoner
having committed the offense charged, and is not ready to file an information against him on the strength
of the testimony or evidence presented, there would be no legal reason or ground for him to wait until
further evidence may be secured before dismissing the case against the prisoner, or detaining the person
arrested without warrant without violating the precept of article 125 of the Revised Penal Code.

After the release of the prisoner, the city fiscal may make or continue the investigation and file afterwards
the proper information against him with the corresponding court, if the result of the investigation so
warrants, in order to secure a warrant of arrest of the same. Of course, as we have said in our decision
for the purpose of determining the criminal liability of a peace officer detaining a person for a longer
period of time than the six hours prescribed by article 125 of the Revised Penal Code, "the means of
communication as well as the hour of arrest and other circumstances such as the time of surrender and
the material possibility for the fiscal to make the investigation and file in time the necessary information,
must be taken into consideration." The period originally fixed by our Penal Code was twenty four (24)
hours, and if the city fiscal believes that the period now prescribed by article 125 of the Revised Penal
Code is short, and that the law must be amended so as to extend it, it would be proper for the interested
parties to take the case to Congress, since it can not be done by judicial legislation.

Motion for reconsideration is denied.

Paras, Actg. C.J., Pablo, Bengzon, and Briones, JJ., concur.