Lansang Vs GArcia

448 SUPREME COURT REPORTS ANNOTATED
Lansang vs.Garcia
NO.L-33964. December 11, 1971.
IN THE MATTER OF THE PETITION FOR

HABEAS CORPUS OF TEODOSIO
LANSANG,RODOLFO DEL ROSARIO,and BAYANI
ALCALA, petitioners, vs. BRIGADIER-GENERAL
EDUARDO M. GARCIA,Chief, Philippine
Constabulary, respondent.
No. L-33965. December 11, 1971.
ROGELIO V. ARIENDA, petitioner, vs. SECRETARY

OF NATIONAL DEFENSE,and
CHIEF,PHIL.CONSTABULARY,respondents.
No. L-33973. December 11, 1971.
LUZVIMINDO DAVID,petitioner, vs.

GEN.EDUARDO GARCIA, in his capacity as Chief,
Philippine Constabulary, COL. N. C. CAMELLO,in
his capacity as Chief of Staff, Philippine
Constabulary, and HON.JUANPONCEENRILE,in
his capacity as Secretary, Department of National
Defense, respondents.
No. L-33982. December 11, 1971.

HABEAS CORPUS OF NEMESIO E.
PRUDENTE,FELICIDAD G.
PRUDENTE,petitioners, vs. GENERAL MANUEL
YAN, GEN. EDUARDO GARCIA,respondents.
449
VOL. 42, DECEMBER 11, 1971 449

Lansang vs.Garcia
No. L-34004. December 11, 1971.
IN THE MATTER OF THE APPLICATION FOR

HABEAS CORPUS IN BEHALF OF GERARDO
TOMAS, ALSO KNOWN AS “GERRY TOMAS” AND
FOR RETURN OF DOCUMENTS ILLEGALLY
SEIZED.DOMINGO E. DELARA,in his capacity as
Chairman, Committee on Legal Assistance,
Philippine Bar Association, petitioner, vs.
BRIGADIER GENERAL EDUARDOM.
GARCIA,CHIEF,PHILIPPINE CONSTABULARY,re-
spondent.
No. L-34013. December 11, 1971.
REYNALDO RIMANDO,petitioner, vs. BRIG.GEN.

EDUARDO M. GARCIA,Chief of the Philippine
Constabulary, respondent.
No. L-34039. December 11, 1971.
IN THE MATTER OF THE APPLICATION FOR

HABEAS CORPUS IN BEHALF OF SGT.
FlLOMENO M. DE CASTRO AND HlS WIFE,
MRS.BARCELISA C. DECASTRO.CARLOS C. RA-
BAGO, in his capacity as President of the Conference
Delegates Association of the Philippines (CONDA),
petitioner, vs. BRIG.GEN.EDUARDO M.
GARCIA,Chief, Philippine Constabulary, respondent.
No. L-34265. December 11, 1971.

HABEAS CORPUS OF ANTOLIN
ORETA,JR.ANTOLIN ORETA,JR.,petitioner, vs.
GEN.EDUARDO GARCIA and COL.PROSPERO
OLIVAS, respondents.
No. L-34339. December 11, 1971.
GARYB. OLIVAR,assisted by his father, GEORGE

OLIVAR,petitioner, vs. GEN.EDUARDO GARCIA,in
his capacity as Chief, Philippine Constabulary, et al.,
respondents.
Constitutional law; Judicial review; Habeas Corpus.—–

The Supreme Court has the authority under the
Constitution to inquire into the existence of a factual basis
for the issuance of a presidential proclamation suspending
the privilege of the writ of habeas corpus for the purpose of
determining the constitutional sufficiency thereof.
450
Lansang vs. Garcia
Same; Grant of power to suspend writ privilege neither

absolute nor unqualified.—–Far from being full and
plenary, the authority to suspend the privilege of the writ is
circumscribed, confined and restricted, not only by the
prescribed setting or the conditions essential to its
existence, but, also, as regards the time when and the place
where it may be exercised. Like the limitations imposed by
the Fundamental Law upon the legislative department,
adherence thereto and compliance therewith may, within
proper bounds, be inquired into by the courts of justice.
Otherwise, the explicit constitutional provisions thereon
would be meaningless.
Same; Requisites for valid suspension of writ of habeas
corpus.—–For a valid suspension of the privilege of thewrit:
(a) there must be “invasion, insurrection or rebellion” or—–
pursuant to paragraph (2), section 10 of Art. VII of the
Constitution—– “imminent danger thereof”; and (b) public
safety must require the aforementioned suspension. The
President declared in Proclamation No. 889, as amended,
that both conditions are present.
Same; Results of court’s findings.—–On the basis of the
evidence adduced before the Supreme Court, the members
thereof entertained no doubts about the existence of a
sizeable group of men who have publicly risen in arms to
overthrow the government and have thus and still are
engaged in rebellion against the government.
Same; Separation of Powers.—–Pursuant to the
principle of separation of powers underlying our system of
government, the Executive is supreme within his own
sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in
hand with the system of checks and balances, under which
the Executive is supreme, as regards the suspension of the
privilege, but only if and when he acts within the sphere
allotted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the
Judicial Department, which, in this respect, is, in turn,
constitutionally supreme.
Same;Same.—–In the exercise of such authority, the
function of the Court is merely to check—– not to supplant
—– the Executive, or to ascertain merely whether he
hasgone beyond the constitutional limits of his jurisdiction,
not to exercise the power vested in him or to determine the
wisdom of his act.
Same; Same; Test for determining validity of
presidential suspension of writ.—–The Solicitor General
urged that “judicial inquiry into the basis of the questioned
proclamation can go no further than to satisfy the Court not
that the President’s decision is correct and that public
safety was endangered by the re-
451
VOL. 42, DECEMBER 11, 1971 451
Lansang vs. Garcia
bellion and justified the suspension of the writ, but that in

suspending the writ, the President did not act arbitrarily.
“No cogent reason has been submitted to warrant the
rejection of such test.
Same; Same; Same.—–Considering the data in the
possession of the President, the Court is not prepared to
hold that the Executive had acted arbitrarily or gravely
abused his discretion when he then concluded that public
safety and national security required the suspension of the
privilege of the writ, particularly if the NPA were to strike
simultaneously with violent demonstrations staged by the
two hundred forty-five (245) KM chapters, all over the
Philippines, with the assistance and cooperation of the
dozens of GPP organizations, and the bombing of water
mains and conduits, as well as electric power plants and
installations—– a possibility which, no matter how remote,
he was bound to forestall, and a danger he was under
obligation to anticipate and arrest.
Same; Same; President acted in good faith.—–Neither
should the Court overlook the fact that the President could
have declared a general suspension of the privilege.
Instead, he limited the suspension to persons detained “for
crimes of insurrection or rebellion, and all other crimes and
offenses committed by them in furtherance or on the
occasion thereof, or incident thereto, or in connection
therewith. Even this was further limited by a succeeding
proclamation.
Constitutional law; Where persons detained have been
charged criminally, action taken by Supreme Court.—–The
members of the Court, with the exception of Mr. Justice
Fernando, are of the opinion that instead of the Court or its
commissioner taking evidence adverted to above on
whether the detainees had been apprehended and detained
“on reasonable belief” that they had “participated in the
crime of insurrection or rebellion”, it is best to let the
preliminary examination and/or investigation before the
Court of First Instance in which the detainees had been
charged for alleged violation of the Anti-Subversion Act, be
completed, so that their release could be ordered by the
court below, should it find that there is no probable cause
against them, or a warrant for their arrest could be issued,
should a probable cause be established against them. Such
course of action is more favorable to the petitioners
(detainees), inasmuch as a preliminary examination or
investigation requires a greater quantum of proof than that
needed to establish that the Executive had not acted
arbitrarily in causing the petitioners to be apprehended and
detained upon the ground that they had participated in the
commission of the crime or rebellion or insurrection.
452
Lansang vs.Garcia
Same; Same; Release of detainees will not be ordered

unless trial court orders otherwise.—–The majority of the
Court declined to accept the view of Mr. Justice Fernando
that when a formal complaint is presented in court against
a detained person, the court steps in and the executive
steps out. The major-ity’s reasons are: (1) If the suspension
of the writ is valid as in the instant case, the filing of a
complaint against a detainee does not affect the suspension
of the privilege, and, consequently, his release may not be
ordered by the Supreme Court; (2) As the filing of a
complaint does not detract from the validity and efficacy of
the suspension of the privilege, it would be more reasonable
to construe the filing of said formal charges in the court of
first instance as an expression of the President’s belief that
there is sufficient evidence to convict the detainees so
charged and that they should not be released, therefore,
unless and until the court below—– after conducting the
preliminary examination and/or investigation—– shall find
that the prosecution has not established the existence of a
probable cause; and (3) From a long-range viewpoint, this is
more beneficial to the detainees because the opposite view
of Mr. Justice Fernando would tend to induce the Executive
to refrain from filing formal charges as long as it may be
possible.
CASTROand BARREDO, JJ.,concurring:
Constitutional law; Release of detained persons when

writ is suspended and they are charged in court.—–The
dissenting opinion is based on the fallacy that when a
formal charge is filed against a person he is thereby
surrendered to the court and the arresting officer is thereby
divested of custody over him. Except in a metaphorical
sense, the detainee is not delivered or surrendered at all to
the judicial authorities. What the phrase “delivered to the
court” simply means is that from the time a person is
indicted in court, the latter acquires jurisdiction over the
subject-matter. The detainee remains in the custody of the
detaining officer, under the same authority invoked for the
detention, until the court decides whether there is probable
cause to order his arrest.
Criminal procedure; Duty of arresting officer.—–The
arresting officer should hold the person detained until the
court can act, with the only difference that where the
privilege of the writ is available, the arresting officer must
release the detainee upon the expiration of the maximum
detention time allowed by law, if he has not delivered the
detainee to the court within that period.
FERNANDO, J.,concurring and dissenting:
Constitutional law; Separation of Powers; Persons

detained due to writ’s suspension should be released when
charged in court
453
VOL. 42, DECEMBER 11, 1971 453
Lansang vs. Garcia
until warrant is issued.—–In the case of Nava vs.

Gatmaitan (90 Phil. 172) the majority of the Court reached
the conclusion (although lacking enough votes to make it
binding) that the suspension of the privilege of the writ
does not suspend the right to bail. Thus, “By the same
token, if and when formal complaint is presented, the court
steps in and the executive steps out. The detention ceases
to be an executive and becomes a judicial concern.
Thereupon the corresponding court assumes its role and the
judicial process takes its course to the exclusion of the
executive or the legislative departments. Henceforward, the
accused is entitled to demand all the constitutional
safeguards and privileges essential to due process.” It could
follow then that the petitioners still detained ought not to
be further deprived of their liberty in the absence of a
warrant of arrest for whatever offense they may be held to
answer, to be issued by a judge after a finding of probable
cause. That is to comply with the constitutional
requirement against unreasonable search and seizure.
Same; Violation of due process of law.—–Moreover, to keep
them inconfinement after the ordinary processes of the law
are to be availed of, as thereafter decreed by the Executive
itself, is to ignore the safeguard in the Bill of Rights that no
person shall be held to answer for a criminal offense
without due process of law.
ORIGINAL ACTION in the Supreme Court. Habeas

Corpus.
The facts are stated in the opinion of the Court.

Ignacio P. Lacsina for petitioners Teodosio
Lansang, et al.
Ramon A. Gonzales for petitioner Rogelio V.
Arienda.
E.Voltaire Garcia II for petitioner Luzvimindo
David.
Verzola, Africa & Atencio, Lorenzo M. Tañada,
Wigberto E.Tañada, Fortunato de Leon, R. G. Suntay
and Juan T. David for petitioner Felicidad G.
Prudente.
Ruben L.Roxas for petitioner Reynaldo
Rimando.
Nuñez, Acob, Del Rosario & Ramos for
petitioner Carlos Rabago, etc.
E.Voltaire Garcia II and M.P.Vivo for petitioner
Gary Olivar, etc., et al.
454

Lansang vs. Garcia
Jose W. Diokno and Juanito R. Remulla for petitioner

Antolin Oreta, Jr.
Domingo E. de Lara for and in his own behalf.
Solicitor General Felix Q. Antonio and Assistant
Solicitor General Bernardo P. Pardo for respondents.
CONCEPCION,C. J.:
In the evening of August 21, 1971, at about 9 p.m.,

while the Liberal Party of the Philippines was
holding a public meeting at Plaza Miranda, Manila,
for the presentation of its candidates in the general
elections scheduled for November 8, 1971, two (2)
hand grenades were thrown, one after the other, at
the platform where said candidates and other persons
were. As a consequence, eight (8) persons were killed
and many more injured, including practically all of
the aforementioned candidates, some of whom
sustained extensive, as well as serious, injuries which
could have been fatal had it not been for the timely
medical assistance given to them.
On August 23, soon after noontime, the President
of the Philippines announced the issuance of
Proclamation No. 889, dated August 21, 1971,
reading as follows:
“WHEREAS, on the basis of carefully evaluated

information, it is definitely established that lawless
elements in the country, which are moved by common or
similar ideological conviction, design and goal and enjoying
the active moral and material support of a foreign power
and being guided and directed by a well trained,
determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and
attain their ends, have entered into a conspiracy and have
in fact joined and banded their forces together for the
avowed purpose of actually staging, undertaking and
waging an armed insurrection and rebellion in order to
forcibly seize political power in this country, overthrow the
duly constituted government, and supplant our existing
political, social, economic and legal order with, an entirely
new one whose form of government, whose system of laws,
whose conception of God and religion, whose no-tion of
individual rights and family relations, and whose political,
social and economic precepts are based on the
MarxistLeninist-Maoist teachings and beliefs;
455
VOL. 42, DECEMBER 11, 1971 455

Lansang vs. Garcia
“WHEREAS, these lawless elements, acting in concert

through front organizations that are seemingly innocent
and harmless, have continuously and systematically
strengthened and broadened their memberships through
sustained and careful recruiting and enlistment of new
adherents from among our peasantry, laborers,
professionals, intellectuals, students, and mass media
personnel, and through such sustained and careful
recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless
determination to erode and weaken the political, social,
economic and morai foundations of our existing goverment
and to influence many peasant, labor, professional,
intellectual, student and mass media organizations to
commit acts of violence and depredations against our duly
constituted authorities, against the members of our law
enforcement agencies, and worst of all, against the peaceful
members of our society;
WHEREAS, these lawless elements have created a state
of lawlessness and disorder affecting public safety and the
security of the State, the latest manifestation of which has
been the dastardly attack on the Liberal Party rally in
Manila on August 21, 1971, which has resulted in the death
and serious injury of scores of persons;
“WHEREAS, public safety requires that immediate and
effective action be taken in order to maintain peace and
order, secure the safety of the people and preserve the
authority of the State;
“NOW, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of
habeas corpus,for the persons presently detained, as well as
others who may be hereafter similarly detained for the
crimes of insurrection or rebellion, and all other crimes and
offenses committed by them in furtherance or on the
occasion thereof, or incident thereto, or in connection
therewith.”
Presently, petitions for writs of habeas corpus were

filed, in the above-entitled cases, by the following
persons, who, having been arrested without a
warrant therefor and then detained, upon the
authority of said proclamation, assail its validity, as
well as that of their detention, namely:
1. TEODOSIO LANSANG, RODOLFO DEL

ROSARIO and BAYANI ALCALA, the
petitioners in Case No. L-33964—–filed on
August 24, 1971—–who, on August 22, 1971,
between 8 a.m. and 6 p.m., were “invited” by
agents
456

Lansang vs. Garcia
of the Philippine Constabulary—– which is

under the command of respondent Brig. Gen.
Eduardo M. Garcia—– to go and did go to the
headquarters of the Philippine Constabulary,
at Camp Crame, Quezon City, for
interrogation, and thereafter, detained;
2. ROGELIO V. ARIENDA, the petitioner in
Case No. L-33965—– filed, also, on August 24,
1971—– who was picked up in his residence,
at No. 5 Road 3, Urduja Village, Quezon City,
by members of the Metrocom and then
detained;
3. Soon after the filing of the petition in Case
No. L-33965—– or on August 28, 1971—– the
same was amended to include VICENTE
ILAO and JUAN CARANDANG, as
petitioners therein, although, apart from
stating that these additional petitioners are
temporarily residing with the original
petitioner, Rogelio V. Arienda, the amended
petition alleges nothing whatsoever as
regards the circumstances under which said
Vicente Ilao and Juan Carandang; are said to
be illegally deprived of their liberty;
4. LUZVIMINDO DAVID, petitioner in Case No.
L-33973—– filed on August 25, 1971—– who
was similarly arrested in his residence, at No.
131-B Kamias Road, Quezon City, and
detained by the Constabulary;
5. Felicidad G. Prudente, who filed the petition
in Case No. L-33982—– on August 27, 1971
—– upon the ground that her father, Dr.
NEMESIO E. PRUDENTE, had, on August
22, 1971, at about 8 p.m., been apprehended
by Constabulary agents in his house, at St.
Ignatius Village, Quezon City, and then
detained at the Camp Crame stockade,
Quezon City;
6. ANGELO DE LOS REYES, who was allowed
—–on August 30, 1971—– to intervene as one
of the petitioners in Cases Nos. L-33964, L-
33965 and L-33973, he having been arrested
by members of the Constabulary onAugust 22,
1971, between 6:30 and 7:30 p.m., in his
residence, at 86 Don Manuel Street, Sta.
Mesa Heights, Quezon City, and brought to
Camp Crame, Quezon City, where he is
detained and restrained of liberty;
457
VOL. 42, DECEMBER 11, 1971 457

Lansang vs. Garcia
7. VICTOR FELIPE, who was similarly allowed
to intervene as one of the petitioners in said
three (3) cases, upon the ground that, on
August 23, 1971, at about 8 a.m., he was,
likewise, apprehended at Sta. Rosa, Laguna,
by members of the Philippine Constabulary
and brought, first to the Constabulary
headquarters at Canlubang, Laguna, and,
then, to Camp Crame, Quezon City, where he
is detained and restrained of liberty;
8. TERESITO SISON, who was, also, allowed to
intervene as one of the petitioners in the same
three (3) cases, he having been arrested in his
residence, at 318 Lakandula St., Angeles City,
on August 22, 1971, between 6 and 7 p.m.,
and taken to the PC offices at Sto. Domingo,
Angeles City, then to Camp Olivas, San
Fernando, Pampanga, and eventually to
restrained and deprived of liberty;
9. GERARDO TOMAS, alias Gerry Tomas, a 17-
year old second year college student of St.
Louis University, Baguio City, on whose
behalf, Domingo E. de Lara—– in his capacity
as Chairman, Committee on Legal Assistance,
Philippine Bar Association—– filed on
September 3, 1971, the petition in Case No. L-
34004, upon the ground that said Gerardo
Tomas had, on August 23, 1971, at about 6
a.m., been arrested by Constabulary agents,
while on his way to school in the City of
Baguio, then brought to the Constabulary
premises therein at Camp Holmes, and,
thereafter, taken, on August 24, 1971, to
Camp Olivas, Pampanga, and thence, on
August 25, 1971, to the Constabulary
headquarters at Camp Crame, Quezon City,
where he is detained;
10. REYNALDO RIMANDO, petitioner in Case
No. L-34013—– filed on September 7, 1971—–
a 19-year old student of the U.P. College in
Baguio City—– who, while allegedly on his
way home, at Lukban Road, Baguio, on
August 23, 1971, at about 1 a.m., was joined
by three (3) men who brought him to the
Burnham Park, thence, to Camp Olivas at
San Fernando, Pampanga, and, thereafter, to
detained;
11. Sgt. FILOMENO M. DE CASTRO and his
wife, Mrs. BARCELISA C. DE CASTRO, on
whose behalf Carlos
458

Lansang vs. Garcia
C. Rabago—– as President of the Conference

Delegates Association of the Philippines
(CONDA)—–filed the petition in Case No. L-
34039—– on September 14, 1971—– against
Gen. Eduardo M. Garcia, alleging that, on
August 27, 1971, at about 3 p.m., Mrs. De
Castro was arrested, while at Liamzon
Subdivision, Rosario, Pasig, Rizal, by agents
of the Constabulary, and taken to the PC
headquarters at Camp Crame, where, later,
that same afternoon, her husband was
brought, also, by PC agents and both are
detained;
12. ANTOLIN ORETA, JR., who filed the petition
in Case No. L-34265—–on October 26, 1971
—– against said Gen. Garcia, as Chief of the
Constabulary, and Col. Prospero Olivas, Chief
of the Central Intelligence Service (CIS),
Philippine Constabulary, alleging that, upon
invitation from said CIS, he went, on October
20, 1971, to Camp Aguinaldo, Quezon City, to
see Gen. Manuel Yan, Chief of Staff of the
Armed Forces of the Philippines, who referred
petitioner to Col. Laroya of the CIS; that the
latter, in turn, referred him to CIS
Investigator Atty. Berlin Castillo and another
CIS agent, whose name is unknown to the
petitioner; and that, after being interrogated
by the two (2), petitioner was detained
illegally; and
13. GARY OLIVAR, petitioner in Case No. L-
34339—– filed on November 10, 1971—– who
was apprehended, by agents of the
Constabulary, in the evening of November 8,
1971, in Quezon City, and then detained at
Camp Crame, in the same City.
Upon the filing of the aforementioned cases, the

respondents were forthwith required to answer the
petitions therein, which they did. The return and
answer in L-33964—– which was, mutatis mutandis,
reproduced substantially or by reference in the other
cases, except L-34265—– alleges, inter alia, that the
petitioners had been apprehended and detained “on
reasonable belief” that they had “participated in the
crime of insurrection or rebellion;” that “their
continued detention is justified due to the suspension
of the privilege of the writ of habeas corpus pursuant
to Proclamation No. 889 of the President of the
Philippines;” that there is “a state of insurrection or
rebellion” in this country,
459
VOL. 42, DECEMBER 11, 1971 459

Lansang vs. Garcia
and that “public safety and the security of the State
required the suspension of the privilege of the writ of
habeas corpus,” as “declared by the President of the
Philippines in Proclamation No. 889;” that in making
said declaration, the “President of the Philippines
acted on relevant facts gathered thru the coordinated
efforts of the various intelligence agents of our
government but (of) which the Chief Executive could
not at the moment give a full account and disclosure
without risking revelation of highly classified state
secrets vital to its safety and security”; that the
determination thus made by the President is “final
and conclusive upon the courts and upon all other
persons” and “partake(s) of the nature oi political
question (s) which cannot be the subject of judicial
inquiry,” pursuant to Barcelon v. Baker, 5 Phil. 87,
and Montenegro v. Castañeda, 91 Phil. 882; that
petitioners “are under detention pending
investigation and evaluation of culpabilities on the
reasonable belief” that they “have committed, and are
still committing, individually or in conspiracy with
others, engaged in armed struggle, insurgency and
other subversive activities for the overthrow of the
Government”; that petitioners cannot raise, in these
proceedings for habeas corpus, “the question of their
guilt or innocence”; that the “Chief of Constabulary
had petitioners taken into custody on the basis of the
existence of evidence sufficient to afford a reasonable
ground to believe that petitioners come within the
coverage of persons to whom the privilege of the writ
of habeas corpus has been suspended”; that the
“continuing detention of the petitioners as an urgent
bona fide precautionary and preventive measure
demanded by the necessities of public safety, public
welfare and public interest”; that the President of the
Philippines has “undertaken concrete and abundant
steps to insure that the constitutional rights and
privileges of the petitioners as well as of the other
persons in current confinement pursuant to
Proclamation 889 remain unimpaired and
unhampered”; and that “opportunities or occasions for
abuses by peace officers in the implementation of
theproclamation have been greatly minimized, if not
completely curtailed, by various safeguards contained
in directives issued by proper authority.”
460

Lansang vs. Garcia
These safeguards are set forth in:

1.A letter of the President to the Secretary of
National Defense, dated August 21, 1971, directing,
inter alia, in connection with the arrest or detention
of suspects pursuant to Proclamation No. 889, that,
except when caught in flagrante delicto, no arrest
shall be made without warrant authorizedin writing
by the Secretary of National Defense; that such
authority shall not be granted unless, “on the basis of
records and other evidences,” it appears satisfactorily,
in accordance with Rule 113, section 6(b), of the Rules
of Court, that the person to be arrested is probably
guilty of the acts mentioned in the proclamation;
that, if such person will be charged with a crime
subject to an afflictive penalty under the Anti-
Subversion Act, the authorization for his arrest shall
not be issued unless supported by signed intelligence
reports citing at least one reliable witness to the
same overt act; that no unnecessary or unreasonable
force shall be used in effecting arrests; and that
arrested persons shall not be subject to greater
restraint than is necessary for their detention;
2.Communications of the Chief of the
Constabulary, dated August 23, 27 and 30, 1971, to
all units of his command, stating that the privilege of
the writ is suspended for no other persons than those
specified in the proclamation; that the same does not
involve martial law; that precautionary measures
should be taken to forestall violence that may be
precipitated by improper behavior of military
personnel; that authority to cause arrest under the
proclamation will be exercised only by the Metrocom,
CMA, CIS, and “officers occupying position in the
provinces down, to provincial commanders”; that
there shall be no indiscriminate or mass arrests; that
arrested persons shall not be harmed and shall be
accorded fair and humane treatment; and that
members of the detainee’s immediate family shall be
allowed to visit him twice a week;
3.A memorandum of the Department of National
Defense, dated September 2, 1971, directing the Chief
of the Constabulary to establish appropriate
Complaints and Action Bodies/Groups to prevent
and/or check any abuses in
461
VOL.42, DECEMBER 11, 1971 461

Lansang vs. Garcia
connection with the suspension of the privilege of the

writ; and
4. Executive Order No. 333, dated August 26,
1971, creating a Presidential Administrative
Assistance Committee to hear complaints regarding
abuses committed in connection with the
implementation of Proclamation No. 889.
Respondents in L-33985 further alleged that
therein petitioners Vicente Ilao and Juan Carandang
had been released from custody on August 31, 1971,
“after it had been found that the evidence against
them was insufficient.”
In L-34265, the “Answer and Return” filed by
respondents therein traversed some allegations of
fact and conclusions of law made in the petition
therein and averred that Antolin Oreta, Jr., the
petitioner therein, had been and is detained “on the
basis of a reasonable ground to believe that he has
committed overt acts in furtherance of rebellion or
insurrection against the government” and,
accordingly, “comes within the class of persons as to
whom the privilege of the writ of habeas corpus has
been suspended by Proclamation No. 889, as
amended,” the validity of which is not contested by
him.
On August 30, 1971, the President issued
Proclamation No. 889-A, amending Proclamation No.
889, so as to read asfollows:

elements in the country, which are moved by common or
similar ideological conviction, design and goal and enjoying
the active moral and material support of a foreign power
and being guided and directed by a well-trained,
determined and ruthless group of men and taking
advantage of our constitutional liberties to promote and
attain their ends, have entered into aconspiracy and have
in fact joined and banded their forces together for the
avowed purpose of [actually] staging, undertaking, [and]
waging and are actually engaged in an armed insurrection
and rebellion in order to forcibly seize political power in this
country, overthrow the duly constituted government, and
supplant our existing political, social, economic and legal
order with an entirely new one whose form of government,
whose system of laws, whose conception of God and
religion, whose notion of in-
462

Lansang vs. Garcia
dividual rights and family reiations, and whose political,

social and economic precepts are based on theMarxist-
Leninist-Maoist teachings and beliefs;
“WHEREAS, these lawless elements, acting in concert
through front organizations that are seemingly innocent
and harmless, have continuously and systematically
strengthened and broadened, their memberships through
sustained and careful recruiting and enlistment of new
adherents from among our pea santry, laborers,
professionals, intellectuals, students, and mass media
personnel, and through such sustained and careful
recruitment and enlistment have succeeded in infiltrating
almost every segment of our society in their ceaseless
determination toerode and weaken the political, social,
economic and moral foundations of our existing government
and influence many peasant, labor, professional,
intellectual, student andmass media organizations to
commit acts of violence and depredations against our duly
constituted authorities, against the members of our law
enforcement agencies, and worst of all, against the peaceful
members of our society;
“WHEREAS, these lawless elements, by their acts of
rebellion and insurrection, have created a state of
lawlessness and disorder affecting public safety and the
security of the State, the latest manifestation of which has
been the dastardly attack on the Liberal Party rally in
Manila on August 21, 1971, which has resulted m the death
and serious injury of scores of persons; “WHEREAS, public
safety requires that immediate and effective action be
taken in order to maintain peace and order, secure the
safety of the people and preserve the authority of the State;
“NOW THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers vested
upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby suspend the privilege of the writ of
habeas corpus for the persons presently detained, as well as
all others who may be hereafter similarly detained for the
crimes of insurrection or rebellion [,] and [all] other [crimes
and offenses] overt acts committed by them in furtherance
[or on the occasion] thereof[,].
1
[or incident thereto, or in
connection therewith.]”
______________
1 Words in bracket ([]) are those appearing m the original

Proclamation No. 889, but which were eliminated m the amended
Proclamation No. 889-A; words emphasized (italics) have been
amended by Proclamation No. 889-A.
463
VOL. 42, DECEMBER 11, 1971 463

Lansang vs. Garcia
On September 1, 1971, Cases Nos. L-33964, L-33965,

L-33973 and L-33982 were jointly heard and then the
parties therein were allowed to file memoranda,
which were submitted from September 3 to
September 9, 1971.
Soon thereafter, or on September 18, 1971,
Proclamation No. 889 was further amended by
Proclamation No. 889-B, lifting the suspension of the
privilege of the writ of habeas corpus in the following
provinces, sub-provinces and cities of the Philippines,
namely:
A PROVINCES:

1. Batanes 15. Negros Occ.
2. IIocos Norte 16. Negros Or.
3. IIocos Sur 17. Cebu
4. Abra 18. Bohol
5 La Union 19. Capiz
6. Pangasinan 20. Aklan
7. Batangas 21. Antique
8. Catanduanes 22. Iloilo
9. Masbate 23. Leyte
10. Romblon 24. Leyte del sur
11. Marinduque 25. Northern
Samar
12. Or. Mindoro 26. Eastern Samar
13. Occ. Mindoro 27. Northern
Samar
14. Palawan

B. SUB-PROVINCES:

1. Guimaras 3. Siquijor
2. Biliran

C. CITIES:

1. Laoag 10. Bacolod
2. Dagupan 11. Bago
3. San Carlos (Pang.) 12. Canlaon
4. Batangas 13. La Carlota
5. Lipa 14. Bais
6. Puerto Princesa 15. Dumaguete
7. San Carlos (Negros 16. Iloilo
Occ.)
8. Cadiz 17. Roxas
9. Silay 19. Lapu-Lapu
464

Lansang vs. Garcia
20. Cebu 24. Tacloban

21. Mandaue 25. Ormoc
22. Danao 26. Calbayog
23. Toledo
On September 25, 1971, the President issued

Proclamation No. 889-C, restoring the privilege of the
writ in the fol-lowing provinces and cities:
A. PROVINCES:
1. Surigao del Norte 8. Agusan del Sur
2. Surigao del Sur 9. Misamis Or.
3. Davao del Norte 10. Misamis Occ.
4. Davao del Sur 11. Camiguin
5. Davao Oriental 12. Zamboanga del Norte
6. Bukidnon 13. Zamboanga del Sur
7. Agusan del Norte 14. Sulu

B, CITIES:

1. Surigao 8. Tangub
2. Davao 9. Dapitan
3. Butuan 10. Dipolog
4. Cagayan de Oro 11. Zamboanga
5. Gingoog 12. Basilan
6. Ozamiz 13. Pagadian
7. Oroquieta
On October 4, 1971, the suspension of the privilege

was further lifted by Proclamation No. 889-D, in the
following places:
A. PROVINCES:

1. Cagayan 5. Camarines Norte
2. Cavite 6. Albay
3. Mountain Province 7. Sorsogon
4. Kalinga-Apayao

B. CITIES:

1. Cavite City 3. Trece Martires
2. Tagaytay 4. Legaspi
465
VOL. 42, DECEMBER 11, 1971 465

Lansang vs. Garcia
As a consequence, the privilege of the writ of habeas

corpusis still suspended in the following eighteen (18)
provinces, two (2) sub-provinces and eighteen (18)
cities, to wit:
A. PROVINCES::

1. Bataan 10. North Cotabato
2. Benguet 11. Nueva Ecija
3. Bulacan 12. Nueva Vizcaya
4. Camarines Sur 13. Pampanga
5. Ifugao 14. Quezon
6. Isabela 15. Rizal
7. Laguna 16. South Cotabato
8. Lanao del Norte 17. Tarlac
9. Lanao del Sur 18 Zambales

B. SUB-PROVINCES ;;

1. Aurora 2. Quirino

C. CITIES:

1. Angeles 10. Manila
2. Baguio 11. Marawi
3. Cabanatuan 12. Naga
4. Caloocan 13. Olongapo
5. Cotabato 14. Palayan
6. General Santos 15. Pasay
7. Iligan 16. Quezon
8. Iriga 17. San Jose
9. Lucena 18. San Pablo
The first major question that the Court had to

consider was whether it would2 adhere to the view
taken in Barcelon v. Baker 3
and reiterated in
Montenegro v. Castañeda, pur-suant to which, “the
authority to decide whether the exigency has arisen
requiring suspension (of the privilege of the writ of
habeas corpus) belongs to the President and his
‘decision is final and conclusive’ upon the courts and
upon all other persons.” Indeed, had said question
been decided in the affirmative the main issue in all
of these cases, ex-
______________
25 Phil. 87.
391 Phil. 882, 887.
466
Lansang vs. Garcia
cept L-34339, would have been settled, and, since the

other issues were relatively of minor importance, said
cases could have been readily disposed of. Upon
mature deliberation, a majority of the Members of the
Court had, however, reached, although tentatively, a
consensus to the contrary, and decided that the Court
had authority to and should inquire into the existence
of the factual bases required by the Constitution for
the suspension of the privilege of the writ; but before
proceeding to do so, the Court deemed it necessary to
hear the parties on the nature and extent of the
inquiry to be undertaken, none of them having
previously expressed their views thereon.
Accordingly, on October 5, 1971, the Court issued, in
L-33964, L-33965, L-33973 and L-33982, a resolution
stating in part that—–
“x x x a majority of the Court having tentatively arrived at

a consensus that it may inquire in order to satisfy itself of
the existence of the factual bases for the issuance of
Presidential Proclamations Nos. 889 and 889-A (suspending
the privilege of the writ of habeas corpus for all persons
detained or to be detained for the crimes of rebellion or
insurrection throughout the Philippines, which area has
lately been reduced to some eighteen provinces, two
subprovinces and eighteen cities with the partial lifting of
the suspension of the privilege effected by Presidential
Proclamations Nos. 889-B, 889-C and 889-D) and thus
determine the constitutional sufficiency of such bases in the
light of the requirements of Article III, sec. 1, par. 14, and
Article VII, sec. 10, par. 2, of the Philippine Constitution;
and considering that the members of the Court are not
agreed on the precise scope and nature of the inquiry to be
made in the premises, even as all of them are agreed that
the Presidential findings are entitled to great respect, the
Court RESOLVED that these cases be set for rehearing on
October 8, 1971 at 9:30 A.M.
“xxx xxx xxx xxx.”

On October 8, 1971, said four cases were,
therefore, heard, once again, but, this time jointly
with cases Nos. L-34004, L-34013, and L-34039, and
the parties were then granted a period to file
memoranda, in amplification of their respective oral
arguments, which memoranda were submitted from
October 12 to October 21, 1971.
Respondents having expressed, during the oral
arguments, on September 1 and October 8, 1971,
their willing-
467
VOL. 42, DECEMBER 11, 1971 467

Lansang vs. Garcia
ness to impart to the Court classified information

relevant to these cases, subject to appropriate
security measures, the Court met at closed doors, on
October 28 and 29, 1971, and, in the presence of three
(3) attorneys for the petitioners, chosen by the latter,
namely, Senator Jose W. Diokno, Senator Salvador H.
Laurel, and Atty, Leopoldo Africa, as well as of the
Solicitor General and two (2) members of his staff,
was briefed, by Gen. Manuel Yan, Chief of Staff of the
Armed Forces of the Philippines, Gen. Fidel Ramos,
Deputy Chief of Staff, Gen. Felizardo Tanabe, Col.
Tagumpay Nañadiego, Judge Advocate General,
JAGS (GSC), and other ranking officers of said
Armed Forces, on said classified information, most of
which was contained in reports and other documents
already attached to the records. During the
proceedings, the members of the Court, and, oc-
cassionally, counsel for the petitioners, propounded
pertinent questions to said officers of the Armed
Forces. Both parties were then granted a period of
time within which to submit their respective
observations, which were filed on November 3, 1971,
and complemented by some documents attached to
the records on November 6, 1971, and a summary,
submitted on November 15, 1971, of the aforesaid
classified information.
In the meantime, cases Nos. L-34265 (Oreta) and
L-34339 (Olivar) had been filed and the parties
therein were heard in oral argument on November 4,
and 16, 1971, respectively.
On November 15, 1971, the Solicitor General filed
man-ifestations—– motions stating that on November
13, 1971, the following petitioners were:
(a) released from custody:

(1) Teodosio Lansang —– G.R. No.L-33964
(2) Bayani Alcala —– “ “ L-33964
(3) Rogelio Arienda —– “ “ L-33965
(4) Nemesio Prudente —– “ “ L-33982
(5) Gerardo Tomas —– “ “ L-34004
(6) Reynaldo Rimando —– “ “ L-34013
(7) Filomeno M. de Castro —– “ “ L-34039
(8) Barcelisa de Castro —– “ “ L-34039
(9) Antolin Oreta, Jr. —– “ “ L-34265
468

Lansang vs. Garcia
(b) charged, together with other persons named

in the criminal complaint filed therefor, with
a violation of Republic Act No. 1700 (Anti-
Subversion Act), in the City Fiscal’s Office of
Quezon City:
*
(1) Angelo de los Reyes —– G.R. No. L-22982
*
(2) Teresita Sison —– “ “L-33982
(c) accused, together with many others named in

the criminal complaint filed therefor, of a
violation of section 4 of Republic Act No. 1700
(Anti-Subversion Act), in the Court of First
Instance of Rizal:
**
(1) Rodolfo del Rosario —– G.R. No. L-33969
(2) Luzvimindo David —– “ “ L-33973
*
(3) Victor Felipe —– “ “ L-33982
and continue under detention pursuant to

Proclamation No. 889, as amended, and praying that
the petitions in G.R. Nos. L-33964, L-33965, L-33982,
L-34004, L-34013 and L-34039 be dismissed, without
prejudice to the resolution of the remaining cases.
Copy of the criminal complaint filed, as above stated,
with the Court of First Instance of Rizal and docketed
therein as Criminal Case No. Q-1623 of said court—–
which was appended to said manifestations-motions
of the respondents as Annex 2 thereof—– shows that
Gary Olivar, the petitioner in L-34339, is one of the
defendants in said case.
Required to comment on said manifestations-
motions, Luzvimindo David, petitioner in L-33973, in
his comment dated November 23, 1971, urged the
Court to rule on the merits of the petitions in all of
these cases, particularly on the constitutionality of
Presidential Proclamation No. 889, as amended, upon
the ground that he is still detained and that the main
issue is one of public interest, involving as it does the
civil liberties of the people. Angelo de los Reyes, one
of the petitioners in L-33964, L-33965 and L-33973,
Nemesio E. Prudente and Gerardo Tomas, for whose
respective benefit the petitions in L-33982 and L-
34004 have been filed, maintained that the issue in
these cases is not
______________
* Should be L-33964, L-33965 and L-33973

** Should be L-33964.
469
VOL. 42, DECEMBER 11, 1971 469

Lansang vs. Garcia
moot, not even for the detainees who have been

released, for, as long as the privilege of the writ
remains suspended, they are in danger of being
arrested and detained again without just cause or
valid reason. In his reply, dated and filed on
November 29, 1971, the Solicitor General insisted
that the release of the above-named petitioners
rendered their respective petitions moot and
academic.
Petitioners herein, except Antolin Oreta, Jr. in L-

34265, question the formal validity of the
proclamation suspending the privilege of the writ of
habeas corpus. In this connection, it should be noted
that, as originally formulated, Proclamation No. 889
was contested upon the ground that it did not comply
with the pertinent constitutional provisions, namely,
paragraph (14) of section 1, Article III of our
Constitution, reading:
“The privilege of the writ of habeas corpus shall not be

suspended except in cases of invasion, insurrection, or
rebellion, when the public safety requires it, in any way of
which events the same may be suspended wherever during
such period the necessity for such suspension shall exist.”
and paragraph (2), section 10, Article VIIof the same

instrument, which provides that:
“The President shall be commander-in-chief of all armed

forces of the Philippines, and, whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion, insurrection, or
rebellion. In case of invasion, insurrection, or rebellion, or
imminent danger thereof when the public safety requires it,
he may suspend the privileges of the writ of habeas
corpus,or place the Philippines or any part thereof under
martial law.”
Regardless of whether or not the President may

suspend the privilege of the writ of habeas corpus in
case of “imminent danger” of invasion, insurrection or
rebellion—–which is one of the grounds stated in said
paragraph (2), section 10 of Art. VII of the
Constitution, but not mentioned in paragraph (14),
section 1 of its Bill of Rights—– petitioners
maintained that Proclamation No. 589 did not declare
the existence of actual “invasion, insurrection or
rebellion or imminent danger thereof,” and that,
consequently, said Pro-
470

Lansang vs. Garcia
clamation was invalid. This contention was

predicated upon the fact that, although the first
“whereas” in Proclamation No. 889 stated that
“lawless elements” had “entered into a conspiracy and
have in fact joined and banded their forces together
for the avowed purpose of actually staging,
undertaking and waging an armed insurrection and
rebellion,” the actuality so alleged refers to the
existence, not of an uprising that constitutes the
essence of a rebellion or insurrection, but of the
conspiracy and the intent to rise in arms.
Whatever may be the merit of this claim, the same
has been rendered moot and academic by
Proclamation No. 889-A, issued nine (9) days after
the promulgation of the original proclamation, or on
August 30, 1971. Indeed, said Proclamation No. 889-
A amended, inter alia, the first “whereas” of the
original proclamation by postulating the said lawless
elements “have entered into a conspiracy and have in
fact joined and banded their forces together for the
avowed purpose of staging, undertaking, waging and
are actually engage din an armed insurrection and
rebellion in order to forcibly seize political power in
this country, overthrow the duly constituted
government, and supplant our existing political,
social, economic and legal order with an entirely new
one x x x.” Moreover, the third “whereas” in the
original proclamation was, likewise, amended by
alleging therein that said lawless elements, “by their
acts of rebellion and insurrection,” have created a
state of lawlessness and disorder affecting public
safety and the security of the State. In other words,
apart from adverting to the existence of actual
conspiracy and of the intent to rise in arms to
overthrow the government, Proclamation No. 889-A
asserts that the lawless elements “are actually
engaged in an armed insurrection and rebellion” to
accomplish their purpose.
It may not be amiss to note, at this juncture, that
the very tenor of the original proclamation and
particularly, the circumstances under which it had
been issued, clearly suggest the intent to aver that
there was and is, actually, a state of rebellion in the
Philippines, although the language of said
proclamation was hardly a felicitous one, it having, in
effect, stressed the actuality of the intent to rise in
arms, rather than of the factual existence of the
rebellion itself. The
471
VOL. 42, DECEMBER 11, 1971 471

Lansang vs. Garcia
pleadings, the oral arguments and the memoranda of

respondents herein have consistently and abundantly
emphasized—– to justify the suspension of the
privilege of the writ of habeas corpus—– the acts of
violence and subversion committed prior to August
21, 1971, by the lawless elements above referred to,
and the conditions obtaining at the time of the
issuance of the original proclamation. In short, We
hold that Proclamation No. 889-A has superseded the
original proclamation and that the flaws attributed
thereto are purely formal in nature.
II
Let us now consider the substantive validity of the

proclamation, as amended. Pursuant to the above-
quoted provisions of the Constitution, two (2)
conditions must concur for the valid exercise of the
authority to suspend the privilege to the writ, to wit:
(a) there must be “invasion, insurrection, or rebellion”
or—– pursuant to paragraph (2), section 10 of Art.
VII of the Constitution—– “imminent danger thereof,”
and (b) “public safety” must require the suspension of
the privilege. The Presidential Proclamation under
consideration declares that there has been
4
and there
is actually a state of rebellion and that “public safety
requires that immediate and effective action be taken
in order to maintain peace and order, secure the
safety of the people and preserve the authority of the
State.”
Are these findings conclusive upon the Court?
Respondents maintain that they 5
are, upon the
authority of6
Barcelon v. Baker and Montenegro v.
Castañeda. Upon the other hand, petitioners press
the negative view and urge a reexamination of the
position taken in said two (2) cases, as well as a
reversal thereof.
The weight of Barcelon v. Baker, as a precedent, is
diluted by two (2) factors,
7
namely: (a) it relied heavily
upon Martin v. Mott involving the U.S. President’s
power to call
______________
4As stated in the proclamation involved in Montenegro v.

Castañeda, 91 Phil. 882.
55 Phil. 87.
691 Phil. 882.
76 L. ed. 537.
472

Lansang vs. Garcia
out the militia, which—– he being the commander-in-

chief of all the armed forces—– may be exercised to
suppress or prevent any lawless violence, even
without invasion, insurrection or rebellion, or
imminent danger thereof, and is, accordingly, much
broader than his authority to suspend the privilege of
the writ of habeas corpus, jeopardizing as the latter
does individual liberty; and (b) the privilege had been
suspended by the American Governor-General, whose
act, as representative of the Sovereign, affecting the
freedom of its subjects, can hardly be equated with
that of the President of the Philippines dealing with
the freedom of the Filipino people, in whom
sovereignty resides, and from whom all government
authority emanates. The pertinent ruling in the
Montenegro case was based mainly upon the Barcelon
case, and, hence, cannot have more weight than the
same. Moreover, in the Barcelon case, the Court held
that it could go into the question: “Did the Governor-
General”—– acting under the authority vested in him
by the Congress of the United States, to suspend the
privilege of the writ of habeas corpus under certain
conditions—– “act in conformance with such
authority?” In other words, it did determine whether
or not the Chief Executive had acted in accordance
with law. Similarly, in the Montenegro case, the
Court held that petitioner therein had “failed to
overcome the presumption of correctness which the
judiciary accords to acts of the Executive x x x.” In
short, the Court considered the question whether or
not there really was a rebellion, as stated in the
proclamation therein contested.
Incidentally, even the American jurisprudence is
neither explicit nor clear on the 8
point under
consideration. Although some cases purport to deny
the judicial power to “review” the findings made in
the proclamations assailed in said cases, the tenor of
the opinions therein given, considered as a whole,
strongly suggests the court’s conviction that the
conditions essential for the validity of said proc-
______________
8In re Boyle, 57 Pac 706; Mover v. Peabody, 212 US 78; ExParte

Field, 5 Blatchf. 63, cited in USCA Const. Part. 1, p. 463; Luther
vv.Borden, 7 How 1, 12 L. ed. 581; In re Kalanianaole. 10 Hawaii
29, cited in California Law Review, May, 1942, fn. 40, pp. 382-383;
Exparte MacDonald, 143 Pac 947.
473
VOL. 42, DECEMBER 11, 1971 473

Lansang vs. Garcia
lamations or orders were, in fact, present therein,9
just
as the opposite view taken in other cases had a
backdrop permeated or characterized by the belief
that said conditions were absent. Hence, the dictum
of Chief Justice Taney to the effect that “ 10(e) very case
must depend on its own circumstances.” One of the
important, if not dominant, factors, in connection 11
therewith, was intimated in Sterling v. Constantin,
in which the Supreme Court of the United States,
speaking through Chief Justice Hughes, declared
that:
“x x x. When there is a substantial showing that the exertion

of state power has overridden private rights secured by that
Constitution, the subject is necessarily one for judicial
inquiry in an appropriate proceeding directed against the
individuals charged with the transgression. To such a case
the Federal judicial power extends (Art. 3, sec. 2) and, so
extending, the court
12
has all the authority appropriate to its
exercise. x x x .”
In our resolution of October 5, 1971, We stated that

“a majority of the Court” had “tentatively arrived at a
consensus that it may inquire in order to satisfy itself
of the existence of the factual bases for the issuance
of Presidential Proclamations Nos. 889 and 889-A xxx
and thus determine the constitutional sufficiency of
such bases in the light of the requirements of Article
III, sec. 1, par. 14, and Article VII, sec. 10, par 2, of
the Philippine Constitution x x x.” Upon further
deliberation, the members of the Court are now
unanimous in the conviction that it has the authority
to inquire into the existence of said factual bases in
order to determine the constitutional sufficiency
thereof.
Indeed, the grant of power to suspend the privilege
is
______________
9 In re Burrus, 136 US 500; Sterling v. Constantin, 287 US 375;
Patten v. Miller, 8 S.E. (2d) 757; Miller v. Rivers, 31 F. Supp, 540;
Hearon v. Calus, 183 S.E. 13; In re Green, 16 Pac (2d) 582; Alien v.
Oklahoma City, 52 Pac (2d) 1054; Joyner v. Browning, 30 F. Supp.
512; U.S. v. Phillips, 33 F. Supp. 261.
10 Mitchell v. Harmony, 14 L. ed. 75, 84. See also, U.S. v.
Russell, 20 L. ed. 474, 475.
11287 U.S. 375, 385.
12Northern P.R. Co. v. North Dakota, 236 U S. 585; Merchants’
Nat. Bank v. Richmond, 256 U. S. 635; First Nat. Bank v. Hartford,
273 U.S. 548; Fiske v. Kansas, 274 U.S. 380.
474

Lansang vs. Garcia
neither absolute nor unqualified. The authority

conferred by the Constitution, both under the Bill of
Rights and under the Executive Department, is
limited and conditional. The precept in the Bill of
Rights establishes a general rule, as well as an
exception thereto. What is more, it postulates the
former in the negative, evidently to stress its
importance, by providing that “(t)he privilege of the
writ of habeas corpus shall not be suspended x x x.” It
is only by way of exception that it permits the
suspension of the privilege “in cases of invasion,
insurrection, or rebellion”—– or, under Art. VII of the
Constitution, “imminent danger thereof”—– “when
the public safety requires it, in any of which events
the same may be suspended wherever during such 13
period the necessity for such suspension shall exist.”
For from being full and plenary, the authority to
suspend the privilege ofthe writ is thus
circumscribed, confined and restricted, not only by
the prescribed setting or the conditions essential to
its existence, but, also, as regards the time when and
the place where it may be exercised. These factors
and the aforementioned setting or conditions mark,
establish and define the extent, the confines and the
limits of said power, beyond which it does not exist.
And, like the limitations and restrictions imposed by
the Fundamental Law upon the legislative
department, adherence thereto and compliance
therewith may, within proper bounds, be inquired
into by courts of justice. Otherwise, the explicit
constitutional provisions thereon would be
meaningless. Surely, the framers of our Constitution
could not have intended to engage in such a wasteful
exercise in futility.
Much less may the assumption be indulged in
when we bear in mind that our political system is
essentially democratic and republican in character
and that the suspension of the privilege affects the
most fundamental element of
______________
13 Which were, seemingly, taken from the seventh paragraph of

Section 3, and Section 21 of the Jones Law (Act of Congress of the
U.S. of August 29, 1916). The only provision thereon in the U.S.
Constitution is found in Section 9(2) of Art. 1 thereof—– on the
Legislative Power—– which provides that “the privilege of the writ
of habeas corpus shall not be suspended, unless in cases of
rebellion or invasion the public safety may require it.”
475
VOL. 42, DECEMBER 11, 1971 475

Lansang vs. Garcia
that system, namely, individual freedom. Indeed,

such freedom includes and connotes, as well as
demands, the right of every single member of our
citizenry to freely discuss and dissent from, as well as
criticize and denounce, the views, the policies and the
practices of the government and the party in power
that he deems unwise, improper or inimical to the
commonweal, regardless of whether his own opinion
is objectively correct or not. The untrammelled
enjoyment and exercise of such right—– which, under
certain conditions, may be a civic duty of the highest
order—– is vital to the democratic system and
essential to its successful operation and wholesome
growth and development.
Manifestly, however, the liberty guaranteed and
protected by our Basic Law is one enjoyed and
exercised, not in derogation thereof, but consistently
therewith, and, hence, within the framework of the
social order established by the Constitution and the
context of the Rule of Law. Accordingly, when
individual freedom is used to destroy that social
order, by means of force and violence, in defiance of
the Rule of Law—– such as by rising publicly and
taking arms against the government to overthrow the
same, thereby committing the crime of rebellion—–
there emerges a circumstance that may warrant a
limited withdrawal of the aforementioned guarantee
or protection, by suspending the privilege of the writ
of habeas corpus, when public safety requires it.
Although we must be forewarned against mistaking
mere dissent—– no matter how emphatic or
intemperate it may be—– for dissidence amounting to
rebellion or insurrection, the Court cannot hesitate,
much less refuse—– when the existence of such
rebellion or insurrection has been fairly established
or cannot reasonably be denied—– to uphold the
finding of the Executive thereon, without, in effect,
encroaching upon a power vested in him by the
Supreme Law of the land and depriving him, to this
extent, of such power, and, therefore, without
violating the Constitution and jeopardizing the very
Rule of Law the Court is called upon to epitomize.
As heretofore adverted to, for the valid suspension
of the privilege of the writ: (a) there must be
“invasion, insurrection or rebellion” or—– pursuant to
paragraph (2), sec-
476

Lansang vs. Garcia
tion 10 of Art. VII of the Constitution—– “imminent

danger thereof”; and (b) public safety must require
the aforementioned suspension. The President
declared in Proclamation No. 889, as amended, that
both conditions are present. 14
As regards the first condition, our jurisprudence
attests abundantly to the Communist activities in the
Philippines, especially in Manila, from the late
twenties to the early thirties, then aimed principally
at incitement to sedition or rebellion, as the
immediate objective. Upon the establishment of the
Commonwealth of the Philippines, the movement
seemed to have waned notably; but, the outbreak of
World War II in the Pacific and the miseries, the
devastation and havoc, and the proliferation of
unlicensed firearms concomitant with the military
occupation of the Philippines and its subsequent
liberation, brought about, in the late forties, a
resurgence of the Communist threat, with such vigor
as to be able to organize and operate in Central
Luzon an army—– called HUKBALAHAP, during the
occupation, and renamed Hukbong Mapagpalaya ng
Bayan (HMB) after liberation—– which clashed
several times with the armed forces of the Republic.
This prompted then President Quirino to issue
Proclamation No. 210, dated October 22, 1950,
suspending the privilege of the writ of habeas corpus,
the validity15 of which was upheld in Montenegro v.
Castañeda. Days before the promulgation of said
Proclamation, or on October 18, 1950, members of the
Communist Politburo in the Philippines were
apprehended in Manila. Subsequently accused and
convicted of the crime 16
of rebellion, they served their
respective sentences.
The fifties saw a comparative lull in Communist
activities, insofar as peace and order were concerned.
Still, on June 20, 1957, Rep. Act No. 1700, otherwise
known as the
______________
14People v. Evangelista, 57 Phil. 375; People v. Evangelista, et

al., 57 Phil. 354; People v. Capadocia, 57 Phil 364; People v. Feleo,
57 Phil. 451; People v. Nabong, 57 Phil. 455.
1591 Phil. 882. See also, Nava v. Gatmaitan, Hernandez v.
Montesa, and Angeles v. Abaya, 90 Phil. 172.
16People v. Nava, L-4907, June 29, 1963; In re Jesus Lava v.
Gonzales, L-23048, July 31, 1964; People vs. Nava, L-5796, August
29, 1966; People v. Lava, L-4974, May 16, 1969.
477
VOL. 42, DECEMBER 11, 1971 477

Lansang vs. Garcia
Anti-Subversion Act, was approved, upon the ground

—– stated in the very preamble of said statute—–
that
“x x x the Communist Party of the Philippines, although

purportedly a political party, is in fact an organized
conspiracy to overthrow the Government of the Republic of
the Philippines, not only by force and violence but also by
deceit, subversion and other illegal means, for the purpose
of establishing in the Philippines a totalitarian regime
subject to alien domination and control;
“x x x the continued existence and activities of the
Communist Party of the Philippines constitutes a clear,
present
17
and grave danger to the security of the Philippines
; and
“x x x in the face of the organized, systematic and
persistent subversion, national in scope but international in
direction, posed by the Communist Party of the Philippines
and its activities, there is urgent need for special legislation
to cope with this continuing menace to the freedom and
security of the country x x x.”
In the language of the Report on Central Luzon,

submitted, on September 4, 1971, by the Senate Ad
Hoc Committee of Seven—– copy of which Report was
filed in these cases by the petitioners herein—–
“The years following 1963 saw the successive emergence in

the country of several mass organizations, notably the
Lapiang Manggagawa (now the Socialist Party of the
Philippines) among the workers; the Malayang Samahan
ng mga Magsasaka (MASAKA) among the peasantry; the
Kabataang Makabayan (KM) among the youth/students;
and the Movement for the Advancement of Nationalism
(MAN) among the intellectuals/professionals. The PKP has
exerted all-out effort to infiltrate, influence and utilize
these organizations
18
in promoting its radical brand of
nationalism.”
Meanwhile, the Communist leaders in the Philippines

had been split into two (2) groups, one of which—–
composed mainly of young radicals, constituting the
Maoist faction—– reorganized the Communist Party
of the Philippines early in 1969 and established a
New People’s Army. This faction adheres to the
Maoist concept of the “Protracted People’s War” or
“War of National Liberation.” Its “Programme for a
People’s Democratic Revolution” states, inter alia:
______________
17Italics ours.
18See page 22 thereof.
478
Lansang vs. Garcia
“The Communist Party of the Philippines is determined to

implement its general programme for a people’s democratic
revolution. All Filipino communists are ready to sacrifice
their lives for the worthy cause of achieving the new type of
democracy, of building a new Philippines that is genuinely
and completely independent, democratic, united, just and
prosperous xxx
“xxx xxx xxx
“The central task of any revolutionary movement is to
seize political power. The Communist Party of the
Philippines assumes this task at a time that both the
international and national situations are 19
favorable of
asking the road of armed, revolution x x x”
In the year 1969, the NPA had—– according to the

records of the Department of National Defense—–
conducted raids, resorted to kidnappings and taken
part in other violent incidents numbering over 230, in
which it inflicted 404 casualties, and, in turn,
suffered 243 losses. In 1970, its record of violent
incidents was about the same, but the NPA casualties
more than doubled.
At any rate, two (2) facts are undeniable: (a) all
Communists, whether they belong to the traditional
group or to the Maoist faction, believe that force and
violence are indispensable to the attainment of their
main and ultimate objective, and act in accordance
with such belief, although they may disagree on the
means to be used at a given time and in a particular
place; and ‘(b) there is a New People’s Army, other, of
course, than the armed forces of the Republic and
antagonistic thereto. Such New People’s Army is per
se proof of the existence of a rebellion, especially
considering that its establishment was announced
publicly by the reorganized CPP. Such announcement
isin the nature of a public challenge to the duly
constituted authorities and may be likened to a
declaration of war, sufficient to establish a war status
or a condition of belligerency, even before the actual
commencement of hostilities.
We entertain, therefore, no doubts about the
existence of a sizeable group of men who have
publicly risen in arms to overthrow the government
and have thus been and still are engaged inrebellion
against the Government of the Philippines.
______________
19Italics supplied.
479
VOL. 42, DECEMBER 11, 1971 479

Lansang vs. Garcia
In fact, the thrust of petitioners’ argument is that the

New People’s Army proper is too small, compared
with the size of the armed forces of the Government,
that the Communist rebellion or insurrection cannot
so endanger public safety as to require the suspension
of the privilege of the writ of habeas corpus. This
argument does not negate, however, the existence of a
rebellion, which, from the constitutional and
statutory viewpoint, need not be widespread or attain
the magnitude of a civil war. This is apparent from
the very provision of the
20
Revised Penal Code defining
the crime of rebellion, which may be limited in its
scope to “any part” of the Philippines, and, also, from
paragraph (14) of section 1, Article III of the
Constitution, authorizing the suspension of the
privilege of the writ “wherever”—– in case of rebellion
—– “the necessity for such suspension shall exist.” In
fact, the case of Barcelon v. Baker referred to a
proclamation suspending the privilege in the
provinces of Cavite and Batangas only. The case of In
21
21
re Boyle involved a valid proclamation suspending
the privilege in a smaller area—– a country of the
state of Idaho.
The magnitude of the rebellion has a bearing on
the second condition essential to the validity of the
suspension of the privilege—– namely, that the
suspension be required by public safety. Before
delving, however, into the factual bases of the
presidential findings thereon, let us consider the
precise nature of the Court’s function in passing upon
the validity of Proclamation No. 889, as amended.
Article VII of the Constitution vests in the
Executive the power to suspend the privilege of the
writ of habeas corpus under specified conditions.
Pursuant to the principle of separation of powers
underlying our system of government, the Executive
is supreme within his own sphere. However,
______________
20“ART. 134. Rebellion or insurrection.—–How committed.—–

The crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the purpose
of removing from the allegiance to said Government or its laws, the
territory of the Philippine Islands or any part thereof, of any body
of land, naval or other armed forces, or of depriving the Chief
Executive or the Legislature, wholly or partially, of any of their
powers or prerogatives.”
2157 Pac. 706.
480

Lansang vs. Garcia
the separation of powers, under the Constitution, is

not absolute. What is more, it goes hand in hand with
the system of checks and balances, under which the
Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the
sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this
respect,is, in turn, constitutionally supreme.
In the exercise of such authority, the function 22
of
the Court is merely to check—– notto supplant —–
the Execu-tive, or to ascertain merely whether he has
gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. To be sure, the
power of the Court to determine the validity of the
contested proclamation is far from being identical to,
or even comparable with, its power over ordinary civil
or criminal cases elevated thereto by ordinary appeal
from inferior courts, inwhich cases the appellate court
has all of the powers of the court of origin.
Under the principle of separation of powers and
the system of checks and balances, the judicial
authority to review decisions of administrative bodies
or agencies is much more limited, as regards findings
of fact made in said decisions. Under the English law,
the reviewing court determines only whether there is
some evidentiary basis for the contested
administrative finding; no quantitative examination
of the supporting evidence is undertaken. The
administrative finding can be interfered with only if
there is noevidence whatsoever in support thereof,
and said finding is, accordingly, arbitrary, capricious
and obviously unauthorized. This view has been
adopted by some American courts. It has, likewise,
been adhered to in a number of Philippine cases.
Other cases, in both jurisdictions, have applied the
“substantial evidence” rule, which has been construed
to mean “more than a mere scintilla” or “relevant
evidence as a reasonable mind might accept as
adequate to support
______________
22 Schwartz, An Introduction to American Administrative
Law,2nd ed., 190-191.
481
VOL. 42, DECEMBER 11, 1971 481

Lansang vs. Garcia
23
a conclusion,” even if other minds equally
reasonable might conceivably opine otherwise.
Manifestly, however, this approach refers to the
review of administrative determinations involving the
exercise of quasi-judicial functions calling for or
entailing the reception of evidence. It does not and
cannot be applied, in its aforesaid form, in testing the
validity of an act of Congress or of the Executive,
such as the suspension of the privilege of the writ of
habeas corpus, for, as a general rule, neither body
takes evidence—– in the sense in which the term is
used in judicial proceedings—– before enacting a
legislation or suspending the writ. Referring to the
test of the validity of a statute, the Supreme Court of
the United States, speaking through Mr. Justice
Roberts, expressed,
24
in the leading case of Nebbia v.
New York, the view that:
“x x x If the laws passed are seen to have a reasonable

relation to a proper legislative purpose, and are neither
arbitrary nor discriminatory, the requirements of due
process are satisfied, and judicial determination to that
effect renders a court functus officio xxx With the wisdom of
the policy adopted, with the adequacy or practically of the
law enacted to forward it, the courts are both incompetent
and unauthorizedto deal xxx”
Relying upon this view, it is urged by the Solicitor

General—–
“x x x that judicial inquiry into the basis of the questioned

proclamation can go no further than to satisfy the Court not
that the President’s decision is correct and that public
safety was endangered by the rebellion and justified the
suspension of the writ, but that in suspending the writ, the
President did not act arbitrarily.”
No cogent reason has been submitted to warrant the

rejection of such test. Indeed, the co-equality of
coordinate branches of the Government, under our
constitutional system, seems to demand that the test
of the validity of acts of Congress and of those of the
Executive be, mutatis mutandis, fundamentally the
same. Hence, counsel for peti-
______________
23 Consolidated Edison Co. v. National Labor Relations Board,

305 U.S. 197.
24 291 U.S. 502.
482

Lansang vs. Garcia
tioner Rogelio Arienda admits that the proper

standard is not correctness, but arbitrariness.
Did public safety require the suspension of the
privilege of the writ of habeas corpus decreed in
Proclamation No. 889, as amended? Petitioners
submit a negative answer upon the ground: (a) that
there is no rebellion; (b) that, prior to and at the time
of the suspension of the privilege, the Government
was functioning normally, as were the courts; (c) that
no untoward incident, confirmatory of an alleged
July-August Plan, has actually taken place after
August 21, 1971; (d) that the President’s alleged
apprehension, because of said plan, is non-existent
and unjustified; and (e) that the Communist forces in
the Philippines are too small and weak to jeopardize
public safety to such extent as to require the
suspension of the privilege of the writ of habeas
corpus.
As above indicated, however, the existence of a
rebellion is obvious, so much so that counsel for
several petitioners herein have admitted it.
With respect to the normal operation of
government, including courts, prior to and at the time
of the suspension of the privilege, suffice it to say
that, if the conditions were such that courts of justice
nolonger functioned, a suspension of the privilege
would have been unnecessary, there being no courts
to issue the writ of habeas corpus. Indeed, petitioners’
reference to the normal operation of courts as a factor
indicative of the illegality of the contested act of the
Executive stems, perhaps, from the fact that this
circumstance was adverted to in some American cases
to justify the invalidation therein decreed of said act
of the Executive. Said cases involved, however, the
conviction by military courts of members of the
civilian population charged with common crimes. It
was manifestly, illegal for military courts to assume
jurisdiction over civilians so charged, whe.n civil
courts were functioning normally.
Then, too, the alleged absence of any untoward
incident after August 21, 1971, does not necessarily
bear out petitioners’ view. What is more, it may have
been due precisely to the suspension of the privilege.
To be sure, one
483
VOL. 42, DECEMBER 11, 1971 483

Lansang vs. Garcia
of its logical effects is to compel those connected with

the insurrection or rebellion to go into hiding. In fact,
most of them could not be located by the authorities,
after August 21, 1971.
The alleged July-August Plan to terrorize Manila
is branded as incredible, upon the theory that,
according to Professor Egbal Ahmad of Cornell
University, “guerrilla use of terror x x x is sociological
and psychologically selective,” and that the
indiscriminate resort to terrorism is bound to
boomerang, for it tends to alienate the people's
sympathy and to deprive the dissidents of much
needed mass support. The fact, however, is that the
violence used in some demonstrations held in Manila
in 1970 and 1971 tended to terrorize the bulk of its
inhabitants. It would have been highly imprudent,
therefore, for the Executive to discard the possibility
of a resort to terrorism, on a much bigger scale, under
the July-August Plan.
We will now address our attention to petitioners’
theory to the effect that the New People’s Army of the
Communist Party of the Philippines is too small to
pose a danger to public safety of such magnitude as to
require the suspension of the privilege of the writ of
habeas corpus. The flaw in petitioners’ stand becomes
apparent when we consider that it assumes that the
Armed Forces of the Philippines have no other task
than to fight the New People’s Army, and that the
latter is the only threat—– and a minor one—– to our
security. Such assumption is manifestly erroneous.
The records before Us show that, on or before
August 21, 1971, the Executive had information and
reports—– subsequently confirmed, in many respects,
by the above-mentioned 25
Report of the Senate Ad-Hoc
Committee of Seven —– to the effect that the
Communist Party of the Philippines does not merely
adhere to Lenin’s idea of a swift armed uprising; that
it has, also, adopted Ho Chi Minh’s terrorist tactics
and resorted to the assassination of uncooperative
local officials; that, in line with this policy, the
insurgents have killed 5 mayors, 20 barrio captains
and
______________
25Although not by some conclusions therein made.
484

Lansang vs. Garcia
3chiefs of police; that there were fourteen (14)

meaningful bombing incidents in the Greater Manila
Area in 1970; thatthe Constitutional Convention Hall
was bombed on June 12, 1971; that, soon after the
Plaza Miranda incident, the NAWASA main pipe, at
the Quezon City-San Juan boundary, was bombed;
that this was followed closely by the bombing of the
Manila City Hall, the COMELEC Building, the
Congress Building and the MERALCO substation at
Cubao, Quezon City; and that the respective
residences of Senator Jose J. Roy and Congressman
Eduardo Cojuangco were, likewise, bombed, as were
the MERALCO main office premises, along Ortigas
Avenue, and the Doctor’s Pharmaceuticals, Inc.
Building1, in Caloocan City.
Petitioners, similarly, fail to take into account that
—– as per said information and reports—– the
reorganized Communist Party of the Philippines has,
moreover, adopted Mao’s concept of protracted
people’s war, aimed at the paralyzation of the will to
resist of the government, of the political, economic
and intellectual leadership, and of the people
themselves; that conformably to such concept, the
Party has placed special emphasis upon a most
extensive andintensive program of subversion by the
establishment of front organizations in urban centers,
the organization of armed city partisans and the
infiltration in student groups, labor unions, and
farmer and professional groups; that the CPP has
managed to infiltrate or establish and control nine (9)
major labor organizations; that it has exploited the
youth movement and succeeded in making
Communist fronts of eleven (11) major student or
youth organizations; that there are, accordingly,
about thirty (30) mass organizations actively
advancing the CPP interests, among which are the
Malayang Samahan ng Magsasaka (MASAKA), the
Kabataang Makabayan (KM), the Movement for the
Advancement of Nationalism (MAN), the Samahang
Demokratiko ng Kabataan (SDK), the Samahang
Molave (SM) and the Malayang Pagkakaisa ng
Kabataang Pilipino (MPKP); that, as of August, 1971,
the KM had two hundred forty-five (245) operational
chapters throughout the Philippines, of which
seventy-three (73) were in the Greater Manila, Area,
sixty (60) in Northern Luzon, forty-nine (49) in
Central Luzon, forty-two (42) in the Visayas and
485
VOL. 42, DECEMBER 11, 1971 485

Lansang vs. Garcia
twenty-one (21) in Mindanao and Sulu; that in 1970,

the Party had recorded two hundred fifty-eight (258)
major demonstrations, of which about thirty-three
(33) ended in violence, resulting in fifteen (15) killed
and over five hundred (500) injured; that most of
these actions were organized, coordinated or led by
the aforementioned front organizations; that the
violent demonstrations were generally instigated by a
small, but well-trained group of armed agitators; that
the number of demonstrations heretofore staged in
1971 has already exceeded those of 1970; and that
twenty- four (24) of these demonstrations were
violent, and resulted in the death of fifteen (15)
persons and the injury of many more.
Subsequent events—– as reported—– have also
proven that petitioners’ counsel have underestimated
the threat to public safety posed by the New People’s
Army. Indeed, it appears that, since August 21, 1971,
it had in Northern Luzon six (6) encounters and
staged one (1) raid, in consequence of which seven (7)
soldiers lost their lives and two (2) others were
wounded, whereas the insurgents suffered five (5)
casualties; that on August 26, 1971, a well-armed
group of NPA, trained by defector Lt. Victor Corpus,
attacked the very command post of TF LA WIN in
Isabela, destroying two (2) helicopters and one (1)
plane, and wounding one (1) soldier; that the NPA
had in Central Luzon a total of four (4) encounters,
with two (2) killed and three (3) wounded on the side
of the Government, one (1) BSDU killed and three (3)
NPA casualties; that in an encounter at Botolan,
Zambales, one (1) KM-SDK leader, an unidentified
dissident, and Commander Panchito, leader of the
dissident group were killed; that on August 26, 1971,
there was an encounter in the barrio of San Pedro,
Iriga City, Camarines Sur, between the PC and the
NPA, in which a PC and two (2) KM members were
killed; that the current disturbances in Cotabato and
the Lanao provinces have been rendered more
complex by the involvement of the CPP/NPA, for, in
mid-1971, a KM group, headed by Jo~ vencio
Esparagoza, contacted the Higa-onan tribes, in their
settlement in Magsaysay, Misamis Oriental, and
offered them books, pamphlets and brochures of Mao
Tse Tung, as well as conducted teach-ins in the
reservation; that Es-
486

Lansang vs. Garcia
paragoza was reportedly killed on September 22,

1971, in an operation of the PC in said reservation;
and that there are now two (2) NPA cadres in
Mindanao.
It should, also, be noted that adherents of the CPP
and its front organizations are, according to
intelligence findings, definitely capable of preparing
powerful explosives out of locally available materials;
that the bomb used in the Constitutional Convention
Hall was a “clay-more” mine, a powerful explosive
device used by the U. S. Army, believed to have been
one of many pilfered from the Subic Naval Base a few
days before; that the President had received
intelligence information to the effect that there was a
July-August Plan involving a wave of assassinations,
kidnappings, terrorism and mass destruction of
property and that an extraordinary occurrence would
signal the beginning of said event; that the rather
serious condition of peace and order in Mindanao,
particularly in Cotabato and Lanao, demanded the
presence therein of forces sufficient to cope with the
situation; that a sizeable part of our armed forces
discharge other functions; and that the expansion of
the CPP activities from Central Luzon to other parts
of the country, particularly Manila and its suburbs,
the Cagayan Valley, Ifugao, Zambales, Laguna,
Quezon and Bicol Region, required that the rest of
our armed forces be spread thin over a wide area.
Considering that the President was in possession
of the above data—– except those related to events
that happened after August 21, 1971—– when the
Plaza Miranda bombing took place, the Court is not
prepared to hold that the Executive had acted
arbitrarily or gravely abused his discretion when he
then concluded that public safety and national
security required the suspension of the privilege of
the writ, particularly if the NPA were to strike
simultaneously with violent demonstrations staged
by the two hundred forty-five (245) KM chapters, all
over the Philippines, with the assistance and
cooperation of the dozens of CPP front organizations,
and the bombing of water mains and conduits, as well
as electric power plants and installations—– a
possibility which, no matter how remote, he was
bound to
487
VOL. 42, DECEMBER 11, 1971 487

Lansang vs. Garcia
forestall, and a danger he was under obligation to

anticipate and arrest.
He had consulted his advisers and sought their
views. He had reason to feel that the situation was
critical—– as, indeed, it was—– and demanded
immediate action. This he took believing in good faith
that public safety required it. And, in the light of the
circumstances adverted to above, he had substantial
grounds to entertain such belief.
Petitioners insist that, nevertheless, the President
had no authority to suspend the privilege in the
entire Philippines, even if he may have been justified
in doing so in some provinces or cities thereof. At the
time of the issuance of Proclamation No. 889, he
could not be reasonably certain, however, about the
places to be excluded from the operation of the
proclamation. He needed some time to find out how it
worked, and as he did so, he caused the suspension to
he gradually lifted, first, on September 18, 1971, in
twenty-seven (27) provinces, three (3) sub-provinces
and twenty-six (26) cities; then, on September 25,
1971, in other fourteen (14) provinces and thirteen
(13) cities; and, still later, on October 4, 1971, in
seven (7) additional provinces and four (4) cities, or a
total of forty-eight (48) provinces, three (3) sub-
provinces and forty-three (43) cities, within a period
of forty-five (45) days from August 21, 1971.
Neither should We overlook the significance of
another fact. The President could have declared a
general suspension of the privilege. Instead,
Proclamation No. 889 limited the suspension to
persons detained “for crimes of insurrection or
rebellion, and all other crimes and offenses committed
by them in furtherance oron the occasion there-1 of, or
incident thereto, or in connection therewith.’’ Even this
was further limited by Proclamation No. 889-A, which
withdrew from the coverage of the suspension
persons detained for other crimes and offenses
committed “on the occasion” of the insurrection or
rebellion, or “incident thereto, or in connection
therewith.” In fact, the petitioners in L-33964, L-
33982 and L-34004 concede that the President had
acted in good faith.
In case of invasion, insurrection or rebellion or
imminent
488

Lansang vs. Garcia
danger thereof, the President has, under the

Constitution, three (3) courses of action open to him,
namely: (a) to call out the armed forces; (b) to
suspend the privilege of the writ of habeas corpus;
and (c) to place the Philippines or any part thereof
under martial law. He had, already, called out the
armed forces, which measure, however, proved
inadequate to attain the desired result. Of the two (2)
other alternatives, the suspension of the privilege is
the least harsh.
In view of the foregoing, it does not appear that
the President has acted arbitrarily in issuing
Proclamation No. 889, as amended, nor that the same
is unconstitutional.
III
The next question for determination is whether
petitioners herein are covered by said Proclamation,
as amended. In other words, do petitioners herein
belong to the class of persons as to whom privilege of
the writ of habeas corpus has been suspended?
In this connection, it appears that Bayani Alcala,
one of the petitioners in L-33964, Gerardo Tomas,
petitioner in L-34004, and Reynaldo Rimando,
petitioner in L-34013, were, on November 13, 1971,
released “permanently”—– meaning, perhaps,
without any intension to prosecute them—– upon the
ground that, although there was reasonable ground to
believe that they had committed an offense related to
subversion, the evidence against them is insufficient
to warrant their prosecution; that Teodosio Lansang,
one of the petitioners in L-33964, Rogelio Arienda,
petitioner in L-33965, Nemesio Prudente, petitioner
in L-33982, Filomeno de Castro and Barcelisa C. de
Castro, for whose benefit the petition in L-34039 was
filed, and Antolin Oreta, Jr., petitioner in L-34265,
were, on said date, “temporarily released”; that
Rodolfo del Rosario, one of the petitioners in L-33964,
Victor Felipe, an intervenor in L-33964, L-339-65 and
L-33973, as well as Luzvimindo David, petitioner in
L-33973, and Gary Olivar, petitioner in L-34339, are
still under detention and, hence, deprived of their
liberty, they—– together with over forty (40) other
persons, who are at large—– having been accused, in
the Court of First
489
VOL. 42, DECEMBER 11, 1971 489

Lansang vs. Garcia
Instance of Rizal, of a violation of section 4 of

Republic ActNo. 1700 (Anti-Subversion Act); and that
Angelo de los Reyes and Teresito Sison, intervenors
in said L-33964, L-33965 and L-33973, are, likewise,
still detained and have been charged—– together
with over fifteen (15) other persons, who are, also, at
large—– with another violation of said Act, in a
criminal complaint filed with the City Fiscal’s Office
of Quezon City.
With respect to Vicente Ilao and Juan Carandang
—– petitioners in L-33965—– who were released as
early as August 31, 1971, as well as to petitioners
Nemesio Prudente, Teodosio Lansang, Rogelio
Arienda, Antolin Oreta, Jr., Filomeno de Castro,
Barcelisa C. de Castro, Reynaldo Rimando, Gerardo
Tomas and Bayani Alcala, who were released on
November 13, 1971, and are no longer deprived of
their liberty, their respective petitions have, thereby,
become moot and academic, as far as their prayer for
release is concerned, and should, accordingly, be
dismissed, despite the opposition thereto of counsel
for Nemesio Prudente and Gerardo Tomas who
maintain that, as long as the privilege of the writ
remains suspended, these petitioners might be
arrested and detained again, without just cause, and
that, accordingly, the issue raised in their respective
petitions is not moot. In any event, the common
constitutional and legal issues raised in these cases
have, in fact, been decided in this joint decision-
Must we order the release of Rodolfo del Rosario,
one of the petitioners in L-33964, Angelo de los Reyes,
Victor Felipe and Teresito Sison, intervenors in L-
33964, L-33965 and L-33973, Luzvimindo David,
petitioner in L-33973, and Gary Olivar, petitioner In
L-34339, who are still detained? The suspension of
the privilege of the writ was decreed by Proclamation
No. 889, as amended, for persons detained “for the
crimes of insurrection or rebellion and other overt
actscommitted by them in furtherance thereof.”
The records shows that petitioners Luzvimindo
David, Rodolfo del Rosario, Victor Felipe, Angelo de
los Reyes, Teresito Sison and Gary Olivar are accused
in Criminal Case No. Q-1623 of the Court of First
Instance of Rizal with a violation of the Anti-
Subversion Act and that the
490

Lansang vs.Garcia
similar charge against petitioners Angelo de los

Reyes and Teresito Sison in a criminal complaint,
originally filed with the City Fiscal of Quezon City,
has, also, been filed with said court. Do the offenses
so charged constitute one of the crimes or overt acts
mentioned in Proclamation No. 889, as amended?
In the complaint in said Criminal Case No. 1623, it
is alleged:
“That in or about the year 1968 and for sometime prior

thereto and thereafter up to and including August 21, 1971,
in the city of Quezon, Philippines, and elsewhere in the
Philippines, within the jurisdiction of this Honorable Court,
the above-named accused knowingly, wilfully and by overt
acts became officers and/or ranking leaders of the
Communist Party of the Philippines, a subversive
association as defined by Republic Act No. 1700, which is
an organized conspiracy to overthrow the government of the
Republic of the Philippines by force, violence, deceit,
subversion amd other illegal means, for the purpose of
establishing in the Philippines a communist totalitarian
regime subject to alien domination and control;
“That all the above-named accused, as such officers
and/or ranking leaders of the Communist Party of the
Philippines conspiring, confederating and mutually helping
one another, did then and there knowingly, wilfully,
feloniously and by overt acts committed subversive acts all
intended to overthrow the government of the Republic of the
Philippines, as follows:
1. By rising publicly and taking arms against the
government, engaging in war against the forces of
the government, destroying property or committing
serious violence, exacting contributions or diverting
public lands or property from the lawful purpose for
which they have been appropriated ;
2. By engaging in subversion thru expansion and
recruitment activities not only of the Communist
Party of the Philippines but also of the united front
organizations of the Communist Party of the
Philippines as the Kabataang Makabayan (KM),
Movement for a Democratic Philippines (MDP),
Samahang Demokratikong Kabataan (SDK),
Students’ Alliance for National Democracy
(STAND), MASAKA Olalia-faction, Student
Cultural Association of the University of the
Philippines (SCAUP), KASAMA, Pagkakaisa ng
Magbubukid ng Pilipinas (PMP) and many others;
thru agitation promoted by rallies, de
491
VOL. 42, DECEMBER 11, 1971 491

Lansang vs. Garcia
monstrations and strikes some of them violent in

nature, intended to create social discontent,
discredit those in power and weaken the people’s
confidence in the government; thru consistent
propaganda bypublications, writing, posters, leaflets
or similar means; speeches, teach-ins, messages,
lectures or other similar means; and thru the media
as the TV, radio or newspapers, all intended to
promote the Communist pattern of subversion;
3. Thru urban guerrilla warfare characterized by
assassinations, bombings, sabotage, kidnapping and
arson, intended to advertise the movement, build up
its morale and prestige, discredit and demoralize
the authorities to use harsh and repressive
measures, demoralize the people and weaken their
confidence in the government and to weaken the
will of the government to resist.
“That the following aggravating circumstances attended

the commission of the offense:
a. That the offense was committed in contempt of and

with insult to the public authorities;
b. That some of the overt acts were committed in the
Palace of the Chief Executive;
c. That craft, fraud, or disguise was employed;
d. That the offense was committed with the aid of
armed men;
e. That the offense was committed with the aid of
persons under fifteen (15) years old.”
Identical allegations are made in the complaint filed

with the City Fiscal of Quezon City, except that the
second paragraph thereof is slightly more elaborate
than that of the complaint filed 26
with the CFI,
although substantially the same.
_______________
26 Said paragraph reads:
“That all the above named accused, as such officers and/or ranking leaders
of the Communist Party of the Philippines conspiring, confederating and
mutually helping one another, did then and there knowingly, wilfully,
feloniously and by overt acts committed subversive acts all intended to
overthrow the government of the Republic of the Philippines, or the
government of any of its political subdivisions by force, violence, deceit,
subversive or other illegal means, for the purpose of placing such
governmental or political subdivision under the control and domination of
any alien power, as follows:
“xxx xxx xxx.”
492
Lansang vs. Garcia
In both complaints, the acts imputed to the

defendants herein constitute rebellion and
subversion, of—– in the language of the proclamation
—– “other overt acts committed x x x in furtherance”
of said rebellion, both of which are covered by the
proclamation suspending the privilege of the writ. It
is clear, therefore, that the crimes for which the
detained petitioners are held and deprived of their
liberty are among those for which the privilege of the
writ of habeas corpus has been suspended.
Up to this point, the Members of the Court are
unanimous on the legal principles enunciated.
After finding that Proclamation No. 889, as
amended, is not invalid and that petitioners
Luzvimindo David, Victor Felipe, Gary Olivar, Angelo
de los Reyes, Rodolfo del Rosario and Teresita Sison
are detained for and actually accused of an offense for
which the privilege of the writ has been suspended by
said proclamation, our next step would have been the
following: The Court, or a commissioner designated
by it, would have received evidence on whether—– as
stated in respondents’ “Answer and Return”—– said
petitioners had been apprehended and detained “on
reasonable belief that they had “participated in the
crime of insurrection or rebellion.”
It so happened, however, that on November 13,
1971—– or two (2) days before the proceedings
relative to the briefing held on October
27
28 and 29,
1971, had been completed by the filing of a summary
of the matters then taken up—– the aforementioned
criminal complaints were filed against said
petitioners. What is more, the preliminary
examination and/or investigation of the charges
contained in said complaints has already begun. The
next question, therefore, is: Shall We now order, in
the cases at hand, the release of said petitioners
herein, despite the formal and substantial validity of
the proclamation suspending the privilege, despite
the fact they are actually charged with offenses
covered by said proclamation and despite the
aforementioned criminal complaints against them
and the prelim-
_______________
27 On November 15, 1971.
493
VOL. 42, DECEMBER 11, 1971 493

Lansang vs.Garcia
inary examinations and/or investigations being

conducted therein?
The Members of the Court, with the exception of
Mr. Justice Fernando, are of the opinion, and, so hold,
that, instead of this Court or its commissioner taking
the evidence adverted to above, it is best to let said
preliminary examination and/or investigation be
completed, so that petitioners’ release could be
ordered by the court of first instance, should it find
that there is no probable cause against them, or a
warrant for their arrest could be issued, should a
probable cause be established against them. Such
course of action is more favorable to the petitioners,
inasmuch as a preliminary examination or
investigation requires a greater quantum of proof
than that needed to establish that the Executive had
not acted arbitrarily in causing the petitioners to be
apprehended and detained upon the ground that they
had participated in the commission of the crime of
insurrection or rebellion. And, it is mainly for this
reason that the Court has opted to allow the Court of
First Instance of Rizal to proceed with the
determination of the existence of probable cause,
although ordinarily the Court would have merely
determined the existence of substantial evidence of
petitioners’ connection with the crime of rebellion.
Besides, the latter alternative would require the
reception of evidence by this Court and thus duplicate
the proceedings now taking place in the court of first
instance. What is more, since the evidence involved in
both proceedings would be substantially the same
and the presentation of such evidence cannot be made
simultaneously, each proceeding would tend to delay
the other.
Mr. Justice Fernando is of the opinion—– in line
with the view28
of Mr. Justice Tuason, in Nava v.
Gatmaitan, to the effect that “x x x if and when
formal complaint is presented, the court steps in and
the executive steps out. The detention ceases to be an
executive and becomes a judicial concern xx x x”—–
that the filing of the above-mentioned complaints
against the six (6) detained petitioners herein, has
the effect of the Executive giving up his authority to
_______________
28 90 Phil. 172, 204. Italics ours. Justice Tuason was speaking

for himself only, not for the Court, which was divided.
494

Lansang vs. Garcia
continue holding them pursuant to Proclamation No.

889, as amended, even if he did not so intend, and to
place them fully under the authority of courts of
justice, just like any other person, who, as such,
cannot be deprived of his liberty without lawful
warrant, which has not, as yet, been issued against
anyone of them, and that, accordingly, We should
order their immediate release. Despite the
humanitarian and libertarian spirit with which this
view has been espoused, the other Members of the
Court are unable to accept it because:
(a) If the proclamation suspending the privilege

of the writ of habeas corpus is valid—– and
We so hold it to be—– and the detainee is
covered by the proclamation, the filing of a
complaint or information against him does not
affect the suspension of said privilege, and,
consequently, his release may not be ordered
by Us;
(b) Inasmuch as the filing of a formal complaint
or information does not detract from the
validity and efficacy of the suspension of the
privilege, it would be more reasonable to
construe the filing of said formal charges with
the court of first instance as an expression of
the President’s belief that there are sufficient
evidence to convict the petitioners so charged
and that they should not be released,
therefore, unless and until said court—– after
conducting the corresponding preliminary
examination and/or investigation—– shall
find that the prosecution has not established
the existence of a probable cause. Otherwise,
the Executive would have released said
accused, as were the other petitioners herein;
(e) From a long-range viewpoint, this
interpretation—– of the act of the President in
having said formal charges filed—– is, We
believe, more beneficial to the detainees than
that favored by Mr. Justice Fernando. His
view—– particularly the theory that the
detainees should be released immediately,
without bail, even before the completion of
said preliminary examination and/or
investigation—– would tend to induce the
Executive to refrain from filing formal charges
as long as it may be possible. Manifestly, We
should encourage the early filing of said
charges, so that
495
VOL. 42, DECEMBER 11, 1971 495

Lansang vs. Garcia
courts of justice could assume jurisdiction over the

detainees and extend to them effective protection.
Although some of the petitioners in these cases pray
that the Court decide whether the constitutional right
to bail is affected by the suspension of the privilege of
the writ of habeas corpus, We do not deem it proper to
pass upon such question, the same not having been
sufficiently discussed by the parties herein. Besides,
there is no point in settling said question with respect
to petitioners herein who have been released. Neither
is it necessary to express our view thereon, as regards
those still detained, inasmuch as their release
without bail might still be decreed by the court of first
instance, should it hold that there is no probable
cause against them. At any rate, should an actual
issue on the right to bail arise later, the same may be
brought up in appropriate proceedings.
WHEREFORE, judgment is hereby rendered:
1. Declaring that the President did not act

arbitrarily in issuing Proclamation No. 889,
as amended, and that, accordingly, the same
is not unconstitutional;
2. Dismissing the petitions in L-33964, L-33965,
L-33982, L-34004, L-34013, L-34039 and L-
34265, insofar as petitioners Teodosio
Lansang, Bayani Alcala, Rogelio Arienda,
Vicente Ilao, Juan Carandang, Nemesio E.
Prudente, Gerardo Tomas, Reynaldo
Rimando, Filomeno M. de Castro, Barcelisa C.
de Castro and Antolin Oreta, Jr. are
concerned;
3. The Court of First Instance of Rizal is hereby
directed to act with utmost dispatch in
conducting the preliminary examination
and/or investigation of the charges for
violation of the Anti-Subversion Act filed
against herein petitioners Luzvimindo David,
Victor Felipe, Gary Olivar, Angelo de los
Reyes, Rodolfo del Rosario and Teresito Sison,
and to issue the corresponding warrants of
arrest, if probable cause is found to exist
against them, or, otherwise, to order their
release; and
4. Should there be undue delay, for any reason
whatsoever, either in the completion of the
aforementioned pre
496

Lansang vs. Garcia
liminary examination and/or investigation, or

in the issuance of the proper orders or
resolutions in connection therewith, the
parties may by motionseek in these
proceedings the proper relief.
5. Without special pronouncement as to costs. It
is so ordered.
Reyes., J.B.L., Makalintal, Zaldivar,

Teehankee, Barredo, Villamor and Makasiar, JJ.,
concur.
Castro and Barredo, JJ., concur fully in a
separate opinion.
Fernando, J., concurs and dissents only as to
the answer to the fourth question, the effect of which
is to preclude the release of the petitioners still
detained for reasons expressed in his brief separate
opinion.
CONCURRING OPINION
CASTROand BARREDO, JJ., concurring:
While concurring fully in the opinion of the Court, we

nevertheless write separately to answer, from our
own perspective, a point which Mr. Justice Fernando
makes in his dissent. His view, as we understand it,
is that while an individual may be detained beyond
the maximum detention period fixed by law when the
privilege of the writ of ha-beas corpus is suspended,
such individual is nevertheless entitled to be released
from the very moment a formal complaint is filed in
court against him. The theory seems to be that from
the time the charge is filed, the court acquires,
because the executive officials abdicate, jurisdiction.
This view is based on the separate opinion1 of Mr.
Justice Pedro Tuason in Nava vs. Gatmaitan. Justice
Tuason, in part, said:
“All persons detained for investigation by the executive

department are under executive control. It is here where
the Constitution tells the courts to keep their hands off—–
—–unless the cause of the detention be for an offense other
than rebellion or insurrection, which is another matter.
______________
1 90 Phil. 172, 204 (1951).
497
VOL. 42, DECEMBER 11, 1971 497
Lansang vs. Garcia
“By the same token, if and when a formal complaint is

presented, the court steps in and the executive steps out.
The detention ceases to be an executive and becomes a
judicial concern...”
But the issue to which the Supreme Court Justices in

Navaindividually addressed themselves is radically
disparate from that raised in these cases. There the
question was whether after the detainees had been
formally charged in court and an order for their
arrest had been issued, they were entitled to bail. It
was on that question that the Court was split 5 to 4,
and it was the opinion of Justice Tuason, one of the
five, that after the detainees had been accused in
court, the question of release on bail was a matter
that the court should decide.
Upon the other hand, the question here presented
is whether the detainees should be released forthwith
upon the filing of charges against them in court and
cannot thereafter be re-arrested except only by court
order. This is a totally different question. It is our
submission that they are not entitled to be released.
The dissent is, we believe, based on the fallacy that
when a formal charge is filed against a person he is
thereby surrendered to the court and the arresting
officer is thereby divested of custody over him. Except
in a metaphorical sense, the detainee is not delivered
or surrendered at all to the judicial authorities. What
the phrase “delivered to the court” simply means is
that from the tune a person is indicted in court, the2
latter acquires jurisdiction over the subjectmatter.
The detainee remains in the custody of the detaining
officer, under the same authority invoked for the
detention, until the court decides whether there is
probable cause to order his arrest.
Under ordinary circumstances, when a person is
arrested without a warrant and is charged in court,
he is not released. He is held until the judicial
authority orders either his release or his confinement.
It is no argument to say that under Article III, section
1 (3) of the Constitution only a court can order the
arrest of an individual. Arrests
_______________
2 Sayo vs. Chief of Police, 80 Phil. 859 (1948).
498

Lansang vs. Garcia
without warrant are familiar occurrences,

3
and they
have been upheld as constitutional.
What is more, the privilege of the writ was
suspended precisely to authorize the detention of
persons believed to be plotting against the security of
the State until the courts can act on their respective
cases. To require their peremptory release upon the
mere filing of charges against them, without giving
the proper court opportunity and time to decide the
question of probable cause, would obviously be to
defeat the very basic purpose of the suspension. We
think our role as judges in the cases at bar is clear.
After finding that the Presidential decree was validly
issued, we should give it effect.To uphold its validity
and then try to dilute its efficacy in the name of
personal liberty is, we believe, actually to doubt the
constitutionality of the exercise of the Presidential
prerogative.
Not only that. If the rule were that the detainees
must be released upon the mere filing of charges
against them in court, it is unlikely that the executive
officials would have filed the charges because of their
awareness of the continuing danger which in the first
place impelled the arrest of the detainees, and the
end result would be to inflict on the latter a much
longer period of deprivation of personal liberty than is
warranted.
Whatever our personal views may be of the power
to suspend, the fact remains that the power is there,
writ large and indubitable in the Constitution. It is
far too easy to write anthologies on the side of civil
liberties or on the side of governmental order,
depending on one’s inclination or commitment. But
that is not our function. Constitutional issues, it has
been said, do not take the form of right versus wrong,
but of right versus right. And the Court’s function, as
we see it, is, fundamentally to moderate the clash of
values, and not to inflate them into constitutional
dimensions.
Where it is possible, we should avoid passing on a
constitutional question. But where there is no escape
from the
________________
3 E.g.,People Kagui Malasugui, 63 Phil. 231 (1936.
499
VOL. 42, DECEMBER 11, 1971 499

Lansang vs. Garcia
duty of abstention, our further duty is to decide the

question of constitutional validity on a less heroic
plane.
And that is what we have tried to do in pointing
out that the ordinary rules of criminal procedure
provide an adequate answer to Mr. Justice
Fernando’s problem. That solution is for the arresting
officer to hold the person detained until the court can
act, with the only difference that where the privilege
of the writ of habeas corpus is available, the arresting
officer must release the detainee upon the expiration
of the maximum detention time allowed by law, if he
has not delivered the detainee to the court within
that period.
To insist on the procedural aspect of a
constitutional problem as a manner of solving it is,
after all, no less to be libertarian. Insistence on it is,
to us, and in point of fact, one of the cornerstones of
liberalism.
FERNANDO, J., concurring and dissenting:
The decision of the Court penned by the Chief Justice

easily ranks with his many landmark opinions in
Constitutional Law and is in the tradition of the great
judicial pronouncements from this Tribunal. Skillful
in its analysis, impressive as to its learning,
comprehensive in its scope, and compelling in its
logic, it exerts considerable persuasive force. There is
much in it therefore to which concurrence is easily
yielded. I find it difficult however to accept the
conclusion that the six petitioners still under
detention should not be set free. It is for me a source
of deep regret that having gone quite far in
manifesting the utmost sympathy for and conformity
with the claims of civil liberties, it did not go farther.
Candor induces the admission though that the
situation realistically viewed may not justify going all
the way. Nonetheless the deeply-rooted conviction as
to the undoubted primacy of constitutional rights,
even under circumstances the least propitious,
precludes me from joining my brethren in that
portion of the decision reached. Norshould I let this
opportunity pass without acknowledging the fairness,
even the generosity, in the appraisal of my position in
the opinion of the Chief Justice.
500
Lansang vs. Garcia
1. The function of judicial review fitly characterized

as both delicate and awesome is never more so than
when the judiciary is called upon to pass on the
validity of an act of the President arising from the
exercise of a power granted admittedly to cope with
an emergency or crisis situation. More specifically,
with reference to the petitions before us, the question
that calls for prior consideration is whether the
suspension of the privilege of the writ of habeas
corpus is tainted by constitutional infirmity. What
the President did attested to an executive
determination of the existence of the conditions that
warranted such a move. For one1 of the mandatory
provisions of the Bill of Rights is that no such
suspension is allowable, except in cases of invasion,
insurrection or rebellion, when the public safely
requires, and, even then, only in such places
2
and for
such period of time as may be necessary. There is the
further provision that the constitutional official 3
so
empowered to take such a step is the President. The
exceptional character of the situation is thus
underscored. The presumption would seem to be that
if such a step were taken, there must have been a
conviction on thepart of the Executive that he could
not, in the fulfillment of the responsibility entrusted
to him, avoid doing so. That decision is his to make; it
is not for the judiciary. It is therefore encased in the
armor of what must have been a careful study on his
part, in the light of relevant information which as
Commander-in-Chief he is furnished, ordinarily
beyond the ken of the courts. When
_______________
1 Art. III, Constitution.

2 According to the Constitution: “The privilege of the writ of
habeas corpus shall not be suspended except in cases of invasion,
insurrection, or rebellion, when the public safety requires it, in any
of which events the same may be suspended wherever during such
period the necessity for such suspension shall exist.” Art III, Sec. 1,
par. (14).
3 On this point, the Constitution reads: “In case of invasion,
insurrection, or rebellion, or imminent danger thereof, when the
public safety requires it, he may suspend the privileges of the writ
of habeas corpus or place the Philippines or any part thereof under
martial law.” Art. VII, Sec. 10, par. (2). What is immediately
noticeable is that the existence of an imminent danger of invasion,
insurrection, or rebellion was included in the justification for the
suspension.
501
VOL. 42, DECEMBER 11, 1971 501

Lansang vs. Garcia
it is considered further that the Constitution does

admit that the sphere of individual freedom contracts
and the scope of governmental authority expands
during times of emergency, it becomes manifest why
an even greater degree of caution and circumspection
must be exercised by the judiciary when, on this
matter, it is called upon to discharge the function of
judicial review.
2.Not that the judiciary has any choice on the
matter. That view would indict itself for unorthodoxy
if it maintains that the existence of rebellion suffices
to call for the disregard of the applicable
constitutional guarantees. Its implication would be
that the Constitution ceases to be operative in times
of danger to national safety and security. Well has
the American Supreme
4
Court in the leading case of
Ex-parte Milligan stated: “The Constitution is a law
for rulers and for people equally in war and in peace
and covers with the shield of its protection all classes
of men at all times and under all circumstances.” This
ringing affirmation should at the very least give
pause to those troubled by the continuing respect that
must be accorded civil liberties under crisis
conditions. The fact that the Constitution provides for
only one situation where a provision of the Bill of
Rights may be suspended, emphasizes the holding in
the above-cited Milligan case that the framers of the
Constitution “limited the suspension to one great
right and left the rest to remain forever inviolable.”
While perhaps at times likely to give rise to
difficulties in the disposition of cases during a
troubled era where a suspension has been decreed,
such a view is to be taken into careful consideration.
3.For it is a truism that the Constitution is
paramount, and the Supreme Court has no choice but
to apply its provisions in the determination of actual
cases and controversies before it. Nor is this all. The
protection of the citizen and the maintenance of his
constitutional rights is one of5 the highest duties and
privileges of the judiciary. The exercise thereof
according to Justice Laurel requires that it gives
effect to the supreme law to the extent in clear cases
______________
4 4 Wall. 123 (1866).

5 Alvarez v. Court, 64 Phil. 33 (1937).
502

Lansang vs. Garcia
6
of setting aside legislative and executive action. The
supreme mandates of 7the Constitution are not to be
loosely brushed aside. Otherwise, the Bill of Rights
might be 8 emasculated into mere expressions of
sentiment. Speaking of this Court, Justice Abad
Santos once pertinently observed: “This court owes its
own existence to that great instrument and derives
all its powers therefrom. In the exercise of its powers
and jurisdiction, this court
9
is bound by the provisions
of the Constitution.” Justice Tuason would thus
apply the constitutional rights with undeviating
rigidity: “To the plea that the security of the State
would be jeopardized by the release of the defendants
on bail, the answer is that the existence of danger is
never a justification for courts to tamper with the
fundamental rights expressly granted by the
Constitution. These rights are immutable, inflexible,
yielding to no pressure of convenience, expediency, or
the so-called ‘judicial statesmanship.’ The Legislature
itself can not infringe them, and no court conscious of
its responsibilities and limitations would do so. If the
Bill of Rights are incompatible with stable
government and a menace to the Nation, let the
Constitution be amended, or abolished. It is trite to
say that, while the Constitution stands, the courts of
justice as the repository of civil liberty are bound10 to
protect and maintain undiluted individual rights.”
It is in that context, to my mind, that the petitions
before us should be appraised, for in terms of
physical, as distinguished from intellectual, liberty,
the privilege of the writ of habeas corpus occupies a
place second to none.11
As was stressed in Gumabon v.
Director of Prisons: “Rightly then could Chafee refer
to the writ ‘as the most important human rights
provision’ in the fundamental law.” Care is to be
taken then lest in the inquiry that must be
undertaken to determine whether the constitutional
requisites
_______________
6 People v. Vera, 65 Phil. 56, 94-95 (1937).

7 Pampanga Bus Co. v. Pambusco Employees Union, 68 Phil 541
(1939).
8 Angara v. Electoral Tribunal, 63 Phil. 139, 157 (1936).
9 Schneckburger v. Moran, 63 Phil. 249, 251-252 (1936).
10 90 Phil. 172, at p. 206 (1951).
11 L-30026, January 30, 1971, 37 SCRA 420, 423.
503
VOL. 42, DECEMBER 11, 1971 503

Lansang vs. Garcia
justifying a suspension are present, the effects

thereof as to the other civil liberties are not fully
taken into account. It affords no justification to say
that such a move was prompted by the best motives
and loftiest of intentions. Much less can there be
acceptance of the view, as contended by one of the
counsel for respondents, that between the safety of
the overwhelming majority of Filipinos and the
claims of the petitioners to liberty, the former must
prevail. That is to indulge in the vice of
oversimplification. Our fundamental postulate is that
the si ate exists to assure individual rights, to protect
which governments are instituted deriving their just
powers from the consent of the governed. “The
cardinal article of faith of our civilization,” according
to Frankfurter,
12
“is the inviolable character of the
individual.”
4. With all the admitted difficulty then that the
function of judicial review presents in passing upon
the executive determination of suspending the
privilege of the writ, there is still no way of evading
such a responsibility, except on the pain of judicial
abdication. It may not admit of doubt that on this
matter this Court, unlike the President, cannot lay
claim to the experience and the requisite knowledge
that would instill confidence in its decisions. That is
no warrant for an unquestioning and uncritical
acceptance of what was done. It cannot simply fold its
hands and evince an attitude of unconcern. It has to
decide the case. This it does by applying the law to
the facts as found, as it would in ordinary cases. If
petitioners then can make out a case of an unlawful
deprivation of liberty, they are entitled to the writ
prayed for. If the suspension of the privilege be the
justification, they could, as they did, challenge its
validity. To repeat, this Court, even if denied the
fullness of information and the conceded grasp of the
Executive still must adjudicate the matter as best it
can. It has to act not by virtue of its competence but
by the force of its 13 commission a function
authenticated by history.” That would be
_______________
12 American Communications Asso. v. Douds, 339 US 382 421

(1951).
13 Cf. West Virginia State Board of Education v. Barnette, 319
US 624 (1943).
504
503 SUPREME COURTS REPORTS ANNOTATED

Lansang vs. Garcia
to live up to its solemn trust, to paraphrase Cardozo,

of preserving the great ideals of liberty and equally
against the erosion of possible 14
encroachments,
whether minute or extensive. Even if there be no
showing then of constitutional infirmity, at least
oneother branch of the government, that to which
such an awesome duty has been conferred, has had
the opportunity of reflecting on the matter with
detachment, with objectivity, and with full awareness
of the commands of the Constitution as well as the
realities of the situation.
5. Nor is the power of the judiciary to so inquire,
negated as contended by respondents, by reliance on
the doctrine of political questions. The term has been
made applicable to controversies clearly non-judicial
and therefore beyond its jurisdiction or to an issue
involved in a case appropriately subject to its
cognizance, as to which there has been a prior
legislative or executive 15determination to which
deference must be paid. It has likewise been
employed loosely to characterize a suit where the
party proceeded against is16the President or Congress,
or any branch thereof . If to be delimited with
accuracy, “political questions should refer to such as
would under the Constitution be decided by the
people in their sovereign capacity or in regard to
which full discretionary authority is vested either in
the Presidency or Congress. It is thus beyond 17
the
competence of the judiciary to pass upon. Unless,
clearly falling within the above formulation, the
decision reached by the political branches whether in
the form of a congressional act or an executive order
could be tested in court. Where private rights are
affected, the judiciary has nochoice but to look into its
validity. It is not to be lost sight of that such a power
comes into play if there is an appropriate proceeding
that may be filed only after either coordinate branch
has acted. Even when the Presidency or Congress
possesses
_______________
14 Cardozo, The Nature of Judicial Process, 92-93 (1921).

15 Cf. Vera v. Avelino, 77 Phil. 192 (1946); Lopez v. Roxas, L-
25716, July 28, 1966, 17 SCRA 756; Gonzales v. Commission on
Elections, L-28196, Nov. 9, 1967, 21 SCRA 774.
16 Cf. Planas v. Gil, 67 Phil. 62 (1937); Vera v. Avelino,77 Phil.
192 (1946).
17 Cf. Tañada v. Cuenco, 103 Phil. 1051 (1957).
505
VOL. 42, DECEMBER 11, 1971 505

Lansang vs. Garcia
plenary power, its improvident exercise or the abuse
thereof, if shown,
18
may give rise to a justiciable
controversy. For the constitutional grant of
authority is not usually unrestricted. There are limits
to what may be done and how it is to be
accomplished. Necessarily then, the courts in the
proper exercise of judicial review could inquire into
the question of whether or not either of the two
coordinate branches has adhered to what is laid down
by the Constitution. The question thus posed is
judicial rather than political. So it is in the matter
before us so clearly explained in the opinion of the
Chief Justice.
6. The 19 doctrine announced in Montenegro v.
Castañeda that such a question is political has thus
been laid to rest. It is about time too. It owed its
existence to the compulsion 20
exerted by Barcelon v.
Baker, a 1905 decision. This Court was partly
misled by an undue reliance in the latter case on
what it considered to be authoritative
pronouncements from such illustrious American
jurists as Marshall, Story, and Taney. That is to
misread what was said by them. This is most evident
in the case of Chief 21Justice Marshall, whose epochal
Marbury v. Madison was cited. Why that was so is
difficult to understand. For it speaks to the contrary.
It was by virtue of this decision that the function of
judicial review owes its origin notwithstanding the
absence of any explicit provision in the American
Constitution empowering the courts to do so. Thus:
“It is emphatically the province and duty of the
judicial department to say what the law is. Those who
apply the rule to particular cases, must of necessity
expound and interpret that rule. If two laws conflict
with each other, the courts must decide on the
operation of each. So if a law be in opposition to the
constitution; if both the law and the constitution
apply to a particular case, so that the court must
either decide that case conformably to the law,
disregarding the constitution; or conformably to the
constitution, disregarding the law; the court must
determine which of
_______________
18 Cf. Morrero v. Bocar, 66 Phil. 429 (1938) ; Rodriguez v.

Quirino, L-19800, October 28, 1963, 9 SCRA 284.
19 91 Phil. 882 (1952).
20 5 Phil. 87.
211 Cranch 137 (1803).
506

Lansang vs. Garcia
these conflicting rules governs the case. This is of the

very essence of judicial duty. If then, the courts are to
regard the constitution, and the constitution is
superior to any ordinary act of the legislature, the
constitution, and not such ordinary 22
act, must govern
the case to which they both apply.”
Nor is the excerpt from Justice Story, speaking for 23
the United States Supreme Court, in Martin v. Mott,
as made clear in the opinion of the Chief Justice, an
authority directly in point. There, a militiaman had
been convicted of failing to respond to a call, made
under the Act of 1795, to serve during the War of
1812. His property was taken to satisfy the judgment.
He brought an action of replevin. The American
Constitution empowers its Congress “to provide for
calling forth the Militia” in certain cases, and
Congress did provide that in those cases the
President should have authority to make the call. All
that Justice Story did in construing the statute in the
light of the language and purpose of her Constitution
was to recognize the authority of the American
President to decide whether the exigency has arisen.
In stating that such power was exclusive and thus
had a conclusive effect, he relied on the language
employed, impressed with such a character. The
constitutional provision on the suspension of the 24
privilege of the writ is, as shown, anything 25but that.
Chief Justice Taney, in Luther v. Borden, likewise
had to deal with a situation involving the calling out
of the militia. As a matter of fact, an eminent
commentator speaking of the two above decisions had
this apt observation: “The common element in these
opinions would seem to be a genuine judicial
reluctance to speak in a situation where the voice of
the Court, even if heard, could not have any effect.
More than this, both Story and Taney seem to share
the suspicion, unusual in them, that under a popular
form of government there are certain questions that
the political branches must be trusted
_______________
22 Ibid., pp.177-178.
2312 Wheaton 19 (1827).
24 Cf. Fairman, The Law of Martial Rule and the National
Emergency, 55 Harvard Law Review, 1253, 1270-1271 (1942).
25 7 Howard 1 (1849).
507
VOL. 42, DECEMBER 11, 1971 507

Lansang vs. Garcia
26
to answer with finality.” What was said next is even
more pertinent. Thus: “It would be dangerous and
misleading to push the principles of these cases too
far, especially the doctrine of ‘political questions’ as
implied in Luther v. Borden.Given the opportunity to
afford a grievously injured citizen relief from a
palpably unwarranted use of presidential or military
power, especially when the question at issue falls in
the penumbra between the ‘political’ and the
‘justiciable’, the Court will act as if it had never heard
of this doctrine and its underlying assumption that
there are some powers against which the judiciary
simply cannot
27
be expected to act as the last line of
defense.” It would thus seem evident that support
for the hitherto prevailing Montenegro ruling was
rather frail. Happily, with our decision, it is no longer
capable of the mischief to which it does lend itself of
an undue diminution of judicial power to the prej
udice of constitutional rights.
7. With such presidential determination of the
existence of the conditions required by the
Constitution to justify a suspension of the privilege of
the writ no longer conclusive on the other branches,
this Court may thus legitimately inquire into its
validity. The question before us, it bears repeating, is
whether or not Proclamation No. 889 as it now
stands, not as it was originally issued, is valid. The
starting point must be a recognition that the power to
suspend the privilege of the writ belongs to the
Executive, subject to limitations. So the Constitution
provides, and it is to be respected. The range of
permissible inquiry to be conducted by this Tribunal
is necessarily limited then to the ascertainment of
whether or not such a suspension, in the light of the
credible information furnished the President, was
arbitrary. Such a test met with the approval of the
chief counsel for petitioners, Senator Jose W. Diokno.
To paraphrase Frankfurter, the question before the
judiciary is not the correctness but the
reasonableness of the action taken. One who is not
the Executive but equally knowledgeable may
entertain a different view, but the decision
______________
26 Rossiter, The Supreme Court and the Commander in Chief,

pp. 16-17 (1951).
27 Ibid., p. 17.
508

Lansang vs. Garcia
rests with the occupant of the office. As would be

immediately apparent even from a cursory perusal of
the data furnished the President, so impressively
summarized in the opinion of the Chief Justice, the
imputation of arbitrariness would be difficult to
sustain. Moreover, the steps taken by him to limit the
area where the suspension operates as well as his
instructions attested to a firm resolve on his part to
keep strictly within the bounds of his authority.
Under the circumstances, the decision reached by the
Court that no finding of unconstitutionality is
warranted commends itself for approval. The most
that can be said is that there was a manifestation of
presidential power well-nigh touching the extreme
border of his conceded competence, beyond which a
forbidden domain lies. The requisite showing of either
improvidence or abuse has not been made.
8. Why the dissent then. My basic premise is that
the suspension of the privilege of the writ partakes of
an executive action which if valid binds all who are
within its operation. The function of enacting a legal
norm general in character appertains to either
Congress or the President. Its specific application to
particular individuals, like petitioners here, is
however a task incumbent on the judiciary. What is
more, as had just been explained, its validity may be
tested in courts. Even if valid, any one may seek
judicial determination as to whether he is embraced
within its terms. After our declaration of the validity
of the Proclamation No. 889 as amended, the next
question is its applicability to petitioners. I am the
first to recognize the meticulous care with which the
Chief Justice, after reaching the conclusion that
petitioners are covered by the suspension, saw to it
that their constitutional rights are duly safeguarded
in whatever proceedings they would have thereafter
to face. There is thus an assurance that as far as
human foresight can anticipate matters, the
possibility of abuse is minimized.
The matter, for me, could be viewed independently
of whether or not petitioners, by the conduct imputed
to them, could be detained further by virtue of the
suspension of the privilege of the writ. For
admittedly, a supervening fact, the Executive’s
determination to have them charged accord-
509
VOL. 42, DECEMBER 11, 1971 509

Lansang vs. Garcia
ing to the ordinary procedural rules, did present

itself. There was thus introduced an element decisive
in its consequences. They are entitled to treatment no
different from that accorded any other individual
facing possible criminal charges. The opinion of the
Chief Justice is correct in pointing out that such an
approach follows the dictum of Justice28 Tuason,
speaking for himself in Nava v. Gatmaitan, where a
majority of five, lacking just one vote to enable this
Court to reach a binding decision, did arrive at the
conclusion that the suspension of the privilege of the
writ does not suspend the right to bail. Thus: “By the
same token, if and when formal complaint is
presented, the court steps in and the executive steps
out. The detention ceases to be an executive and
becomes a judicial concern. Thereupon the
corresponding court assumes its role and the judicial
process takes its course to the exclusion of the
executive or the legislative departments.
Henceforward, the accused is entitled to demand all
the constitutional safeguards and privileges essential
29
29
to due process.” Parenthetically, it may be observed
that the above view reflects the stand taken by
Justice Recto, fortified by Justice Laurel, drawing
heavily on continental juristic thought, both of whom,
having retired from the bench and thereafter having
been elected to the Senate, were invited to appear as
amici curiae in the Nava case.
It would follow to my way of thinking then that the
petitioners still detained ought not to be further
deprived of their liberty in the absence of a warrant of
arrest for whatever offense they may be held to
answer, to be issued by a judge after a finding of
probable cause. That is to comply with the
constitutional requirement
30
against unreasonable
search and seizure. Moreover, to keep them in
confine-
_______________
28 90 Phil. 172 (1951).

29 Ibid., p. 204.
30 According to Article III, Section 1, paragraph 3 of the
Constitution: “The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures shall not be violated, and no warrants shall issue but upon
probable cause, to be determined by the judge 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.”
510

Lansang vs. Garcia
ment after the ordinary processes of the law are to be

availed of, as thereafter decreed by the Executive
itself is to ignore the safeguard in the Bill of Rights
that no person shall be held to answer for a criminal
31
31
offense without due process of law. That would
explain why with full recognition of the sense of
realism that infuses the opinion of the Court, I
cannot, from the above standpoint, reach the same
conclusion they did.These six petitioners, Rodolfo del
Rosario, Victor Felipe, Luzvimindo David, Gary
Olivar, Angelo de los Reyes and Teresito Sison, have,
for me, become immune from the operation of the
proclamation suspending the privilege of the writ of
habeas corpus and are thus entitled to their liberty. I
am reinforced in my conviction by the well-settled
principle of constitutional construction that if there
are two possible modes of interpretation, that one
which raises the least constitutional doubt should be
preferred. Certainly, to my way of thinking, the
choice is obvious. That interpretation which would
throw the full mantle of protection afforded by the
Constitution to those unfortunate enough to be
caught in the meshes of criminal law is more in
keeping with the high estate accorded constitutional
rights.
There is another consideration that strengthens
my conviction on the matter. The language of the
Constitution would seem to imply at the most that
the suspension of the privilege of the writ renders it
unavailable for the time being. Still there are
authorities sustaining the view that preventive
detention 32 subject to the test of good faith is
allowable. Such a doctrine is no doubt partly
traceable to Anglo-American legal history where as
pointed out by Maine: “Substantive law has at first
the look of being
33
gradually secreted in the interstices
of procedure.” The writ of habeas corpus then is
more than just an efficacious device or the most
speedy means of obtaining one’s liberty.
_______________
31 Article III, section 1, paragraph 15, Constitution

32 Cf Ex parte Milligan, 4 Wallace 2 (1866); Moyer v. Peabody,
212 US 78 (1908); Ex parte Simmerman, 132 F2 442 (1942). That
was likewise acknowledged in the opinion of Justice Tuason in the
Nava case.
33 Cf. Chafee, Free Speech in the United States, p. 63 (1941).
Holmes and Maitland entertained a similar view.
511
VOL.42, DECEMBER 11, 1971 511

Lansang vs. Garcia
It has become a most valuable substantive right. It

would thus serve the cause of constitutional rights
better if the Tuason dictum as to the judicial process
supplanting executive rule the moment charges are
filed be accorded acceptance. Thereby the number of
individuals who would have to submit to further
detention, that may well turn out to be unjustified,
would be reduced. What is more, greater fidelity is
manifested to the principle that liberty is the rule
and restraint the exception.
I am not of course insensible to the observation in
the opinion of the Court that this concept could be an
obstacle to the early resumption of the ordinary
judicial process as the Executive might be minded to
postpone resort to it, considering that there would
necessarily be an end to the detention at that early
stage of individuals who continue to pose risk to the
safety of the government. It does occur to me,
however, that the presumption should be that the
high executive dignitaries can be trusted to act in
accordance with the dictates of good faith and the
command of the Constitution. At least, such seems to
be the case now. The opinion of the Court is quite
explicit as to the measures taken to minimize the
possibility of abuse from officials in the lower
category, who in their zeal or even from less worthy
motives might make a mockery of the other
constitutional rights. That is as it should be. It should
continue to be so even if there be acceptance of the
doctrine enunciated by Justice Tuason. There is, for
me at least, no undue cause for pessimism.
There is to my mind another reinforcement to this
approach to the question before us, perhaps one based
more on policy rather than strictly legal
considerations. The petitioners who have not been
released are youth leaders, who for motives best
known to them, perhaps excess of idealism,
impatience with existing conditions, even
overweening ambition, clamor for change, apparently
oblivious at times that it could be accomplished
through means of which the law does not disapprove.
It would be premature at this stage to say whether or
not their activities have incurred for them a penal
sanction, which certainly would be appropriate if
their conduct is beyond the pale. Even they should
recog-
512

Lansang vs. Garcia
nize that the existing order has the right to defend

itself against those who would destroy it. Nonetheless
as a constitutional democracy can justifiably pride
itself on its allegiance to ways of persuasion rather
than coercion, the most meticulous observance of the
free way of life seems to me, even at this stage, not
without its beneficent influence on their future course
of conduct. This is not by any means to intimate that
my brethren view matters differently. Far from it.
Any difference if at all in the positions taken is a
question of emphasis. Rightly, the opinion of the
Chief Justice stresses the importance of the role of
law. It is to be hoped that with a proper
understanding of what has been decided by the Court
today, there would be a diminution of the wholesale
condemnation of the present system of government by
some sectors of the youth and perhaps even lead to
much-needed refinement in the volume and quality of
their utterances. It could even conceivably, not only
for them but for others of a less radical cast of mind,
but equally suffering from disenchantment and
disillusion, induce a reassessment and reappraisal of
their position, even if from all appearances their
commitment and dedication are plain for all to see.
More than that, such a response will go a long way
towards a keener appreciation of the merits of a
constitutional democracy. For thereby, it
demonstrates that it lives up to its ideas; it strives to
act in accordance with what it professes. Its appeal
for all sectors of society becomes strengthened and
vitalized. Nor do I close my eyes to the risk that such
an attitude towards those who constitute a source of
danger entails. That for me is not conclusive. With
nations, as with ordinary mortals, that is
unavoidable. Repose, in the often-quoted aphorism of
Holmes, is not the destiny of man.
9. One last observation. It would appear to me that
if there is really a resolve to maintain inviolate
constitutional rights for all, more especially so for
those inclined and disposed to differ and to be vocal,
perhaps even intemperate, in their criticism, that
serious thought should be given to the desirability of
removing from the President his power to suspend
the privilege of the writ of habeas corpus as well as
the power to declare martial law. Nor would the
government be lacking in authority to cope with the
crisis
513
VOL. 42, DECEMBER 11, 1971 513

Lansang vs. Garcia
of invasion, insurrection, or rebellion or lawless
violence, as the President as commander-in-chief can
summon the aid of the armed forces to meet the
danger posed to public safety. If the privilege of the
writ cannot be suspended and martial law beyond the
power of the President to declare, there is a greater
likelihood as far as the rights of the individual are
concerned, of the Constitution remaining at all times
supreme, as it ought to be, whether it be in peace or
in war or under other crisis conditions. As long,
however, as such a presidential prerogative exists, it
would not be proper for the courts not to accord
recognition to its exercise, if there be observance of
the limitations imposed by the Constitution. At the
most, they can only through construction nullify what
would amount to an unconstitutional application.
How desirable it would be then, to my way of
thinking, if the Constitution would strip the
President of such power. That would be
constitutionalism triumphant. In terms of Lincoln’s
memorable dilemma, the government would be
neither too strong for the liberties of the people nor
too weak to maintain its existence. This is a matter
though appropriately addressed to the Constitutional
Convention.
On the purely legal aspect, however, let me
reiterate that my acceptance of the Tuason dictum in
the Nava case did result In my inability to concur
fully with the opinion of the Chief Justice, which, as
pointed out at the outset, is possessed of a high
degree of merit.
Judgment rendered declaring that the President
did not act arbitrarily in issuing Proclamation No.
889, as amended, and that the same is not
unconstitutional; petitions in L-33964, L-33965, L-
34004, L-34013, L-34039 and L-34265 dismissed;
Court of First Instance of Rizal directed to act with
utmost dispatch in conducting preliminary
examination and/or investigation of the charges for
violation of the Anti-Subversion Act filed against
other petitioners, and to issue warrants of arrest if
probable cause is found to exist against them, or
otherwise, to order their release; and parties may, by
motion, seek proper relief in these proceedings if there
should be undue delay either in the completion of the
preliminary examination and/or investi-
514

Lansang vs. Garcia
gation, or in the issuance of proper orders or

resolutions in connection therewith.
ANNOTATION JUDICIAL REVIEW OF THE

POWER TO SUSPEND THE PRIVILEGE OF
THE WRIT OF HABEAS CORPUS
Introductory Statement
Ever since the Philippines had come under the
democratic form of Government, the privilege of the
writ of habeas corpushad been suspended at least
three times. It was in 1905 when, pursuant to the
Organic Act of the Philippines (The Philippine Bill of
1902), Governor General Luke E. Wright, in
Executive Order No. 6, January 31, 1905, suspended
the privilege of the writ of habeas corpus for the
provinces of Cavite and Batangas. Section 5 of
Philippine Bill of 1902 provided:
“That the privilege of the writ of habeas corpus
should not be suspended unless when in cases of
rebellion, insurrection or invasion the public safety
may require it in either of which events the same may
be suspended by the President, or by the Governor,
with the approval of the Philippine Commission,
wherever during such period the necessity for such
suspension shall exist.”
A portion of the Executive Order reads:
“Whereas, these bands (of ladrones) has in several
instances attacked police and constabulary
detachments, and are in open insurrection against
the constituted authorities, and it is believed that the
said bands have numerous agents and confederates
living within the municipalities of the said provinces.”
Significantly, the Philippine Bill of 1902 requires
the investigation by two departments of the
Government, the legislative and executive, of the
existing conditions, and joint action by the two is
necessary before the privilege of the writ of habeas
corpus can be suspended in the Philippines.
515
VOL. 42, DECEMBER 11, 1971 515

Lansang vs. Garcia
The Court, through Justice Johnson ruled that the

findings of the existing conditions bythe Governor
General and the Philippine Commission are
conclusive upon the judiciary. In making this ruling,
the Court posed a question that if the investigations
and findings of the President or the Governor General
with the approval of the Philippine Commission are
not conclusive and final as against the judicial
department of the Government, then every officer
whose duty it is to maintain order and protect the
lives and property of the people, may refuse to act,
and apply to the judicial department for another
investigation concerning the same conditions, to the
end that they may be protected against civil action
resulting from illegal acts (Barcelon vs. Baker, 5 Phil.
87).
Under the Jones Law (Philippine Autonomy Act,
Public Act No. 240, U.S. Congress, August 21, 1916)
it was provided in the section of the Bill of Rights:
“That the privilege of the writ of habeas corpus shall not be

suspended, unless when in cases of rebellion, insurrection
or invasion the public safety may require it, in either of
which events the same may be suspended by the President,
or by the Governor General, wherever during such period
the necessity for such suspension shall exist.”
In the section of the Executive Power, the Jones Law

provided:
“and he may, in case of rebellion or invasion or imminent

danger thereof, when the public safety requires it, suspend
the privilege of the writ of habeas corpus, or place the
Islands, or any part thereof, under martial law, Provided:
That whenever the Governor-General shall exercise this
authority, he shall at once notify the President of the
United States thereof, together with the attending facts
and circumstances, and the President shall have the power
to modify or vacate the action of the Governor-General.”
The second time the Executive in the Philippines

suspended the privilege of the writ was on October
22, 1950, when President Elpidio Quirino issued
Proclamation No. 210 under his powers in the present
Philippine Constitution. A portion of his
Proclamation reads:
“Acts of sedition, insurrection and rebellion consisting of

armed raids, sorties and ambushes and wanton acts of mur-
516

Lansang vs. Garcia
der, rape, spoilage, looting, arson, planned destruction of

public and private buildings, and attacks against police and
constabulary detachments, as well as against civilian lives
and properties, as reported by the Commanding General of
the Armed Forces have seriously endangered and still
continue to endanger public safety.”
There have been honest differences of opinions on the

necessity of the suspension and the extent of the area
where such suspension is necessary. Very often, the
Executive is in possession of certain facts not
available to other segments of society which he
considers “military secrets” making necessary the
suspension. As has been ruled in two cases (Barcelon
vs. Baker, 5 Phil. 87 and Montenegro vs. Castañeda,
91 Phil, 882), legally speaking, his determination of
these facts is conclusive upon the courts. In all the
three instances of the suspension of the writ,
however, several segments of society have questioned
the basis upon which the Executive had suspended
the writ. The main factor influencing the President in
determining whether to suspend or not is not the
legality of the suspension but his concern for the
public safety which has become naturally greater
than that of the average citizen, because of his
position of great responsibility (Aruego, Philippine
Government in Action, p. 140).
In at least three cases, the validity of the
Proclamation of President Quirino was challenged on
the right of some persons arrested to bail. It has been
ruled that if the cause of the detention be from an
offense other than rebellion or insurrection, which is
another matter, the court steps in, upon formal
complaint, and the executive steps out. The accused is
forthwith entitled to all the constitutional safeguards
and privileges essential to due process (Nava vs.
Gatmaitan, G.R. L-4855; Hernandez vs. Montesa,
G.R. L-4964; Angeles vs. Abaya, G.R. L-5102, Oct. 11,
1951, 90 Phil. 172).
Proclamation No. 210 not ex post facto law or bill of

attainder
The provision on ex post facto or bill of attainder
applies only to statutes (Montenegro vs. Castañeda,
91 Phil. 882,
517
VOL. 42, DECEMBER 11, 1971 517

Lansang vs. Garcia
citing U.S. vs. Gen. El., 80 Fed. Supra. 989; De Pass

vs. Bidwell, 124 Fed. 615; Calder vs. Bull, 3 Dall. U.S.
386).
Anyway, if the proclamation is in accordance with
the power vested on the President by the
Constitution, such order must be deemed an
exception to the general prohibition against ex post
facto laws and bills of attainder.
The Basis of the Presidential Power to Suspend the

Writ
On all three occasions of the suspension of the writ of
habeas corpus in the Philippines, the basis of the
Presidential power has always been questioned.
Citing Justice Johnson in Barcelon vs. Baker, supra,
the Supreme Court, in Montenegro vs. Castañeda,
supra, ruled that the constitutional authority of the
President to suspend the writ of habeas corpus in
cases of imminent danger of invasion, insurrection or
rebellion under Art. VII may not correctly be placed
in doubt.
Whereas the Executive branch of the Government
is enabled thru its civil and military branches to
obtain information about peace and order from every
quarter and corner of the nation, the judicial
department, with its very-limited machinery cannot
be in a better position to ascertain or evaluate the
conditions prevailing in the archipelago (Barcelon vs.
Baker, supra.).
The Danger of Communist overthrow of the Philippine

Government
Proclamation No. 889 dated August 21, 1971 but
announced on August 23, 1971 by President
Ferdinand E. Marcos, was the third occasion for the
chief executive of the Philippines to suspend the
privilege of the writ of habeas corpus. Similar to the
grounds set forth in President Quirino’s Proclamation
is the threat to overthrow the Philippine Government
by lawless elements.Portion of said Proclamation
reads:
elements in the country, which are moved by common
or similar ideological conviction, design and goal and
enjoying the active moral and
518

Lansang vs. Garcia
material support of a foreign power and being guided

and directed by a well trained, determined and
ruthless group of men and taking advantage of our
constitutional liberties to promote and attain their
ends, have entered into a conspiracy and have in fact
joined and banded their forces together for the
avowed purpose of actually staging, undertaking and
waging an armed insurrection and rebellion in order
to forcibly seize political power in this country,
overthrow the duly constituted government, and
supplant our existing political, social, economic and
legal order with an entirely new one whose form of
government, whose system of laws, whose conception
of God and religion, whose notion of individual rights
and family relations, and whose political, social and
economic precepts are based on the Marxist-Leninist-
Maoist teachings and beliefs.”
As early as 1932, the Philippine Supreme Court
has made definitive pronouncements, in the
prevention of Communist followings in the
Philippines, that the objectives and activities of the
Communist Party were illegal as their principal
purpose was to incite clear struggle and overthrow
the Government by armed revolution, or to alter the
social order by violence and consequently to commit
the crimes of rebellion or insurrection and sedition
(People vs. Nabong, 57 Phil. 455; People vs.
Evangelista, 57 Phil. 354; People vs. Manahan,57
Phil. 354; People vs. Capadocia, 57 Phil. 364; People
vs. Feleo, 57 Phil. 451).
Taking cognizance of the danger of communist
threats, the Congress of the Philippines enacted on
June 20, 1957 Republic Act No. 1700, the Anti-
Subversio.n Law. This act outlawed the Communist
Party of the Philippines and similar associations.
The existence of rebellion and insurrection in the
Philippines was affirmed by the Supreme Court in
People vs. Lava,L-4974; People vs. Magboo, L-4975;
People vs. Rodriguez, L-4976; People vs. Mangila, L-
4977; and People vs. Bueno, L-4978, May 16, 1969, 28
SCRA 72.
Definition and nature of Habeas Corpus

Habeas corpus is a writ directed to the person
detaining another and commanding him to produce
the body of the prisoner at a certain time and place,
with the day and
519
VOL. 42, DECEMBER 11, 1971 519

Lansang vs. Garcia
cause of his caption and detention, to do, submit to,

and receive what issue the court or judge awarding
the writ shall consider in that behalf (Bouvier’s Law
Dictionary, p. 1400).
A writ has for centuries been esteemed the best
and only sufficient defense of pesonal freedom, a high
prerogative common law writ, having for its object the
speedy release by judicial decree of persons who are
illegally restrained of their liberty, or illegally
detained from the control of those who are entitled to
their custody.
It is essentially a writ of inquiry, and on matters
which the state itself is concerned, in aid of right and
liberty. The writ is directed to the person in whose
custody the person is detained and requires the body
of the alleged person unlawfully held in custody or
restrained of his liberty to be brought before the court
that appropriate judgment may be rendered upon
judicial inquiry into the alleged unlawful restraint
(25 Am. Jur. 143).
Historical Background
The writ of habeas corpus is the most important
single safeguard of personal liberty known to Anglo-
American law. Often traced to Magna Carta itself, it
dates from, at latest, the seventeenth century, and it
is interesting to note that the constitution simply
assumes that, of course, it will be a part of the law of
the land. The importance of the writ is that it enables
anybody who has been put under personal restraint
to receive immediate inquiry by a court into the cause
of his detention, and if he is not detained for good
cause, his liberty is restored (Edward Jenks, Short
History of English Law, 333; David Hutchinson,
Foundations of the Constitution, 137 cited in Corwin,
The Constitution and What it Means Today, p. 70).
During the American civil war, President Lincoln,
without authorization by Congress, temporarily
suspended the privilege of the writ for the line of
transit for troops en route to Washington, thereby
giving rise to the famous case of Ex parte Merriman
(Taney Reps 246 [1861]). Chief Justice Taney, after
vainly attempting to serve the
520

Lansang vs. Garcia
writ, filed an opinion denouncing the President’s

course as violative of the Constitution. Whether the
President or the Chief Justice was in the right seems
to depend on whether the district for which the writ
was suspended was properly to be regarded as within
the field of military operations at this time, for, as it
was, the President’s power as Commander-in-Chief
had full sway. Congress subsequently passed an act
declaring the President “authorized” to suspend the
writ in certain kinds of cases wherever arising,
though whether “authorized” by the act or by the
constitution itself was not made clear (Corwin, op.
cit., p. 70).
In suspending the writ, President Lincoln, justified
his action by saying that he believed it to be legal.
But intimating that if it was not legal, it was better to
violate a single legal provision than to permit the
collapse of the entire structure upon which our legal
system rested (James Richardson, A Compilation of
Messages and Papers of the President, VI, 25).
Essential Purposes of the Writ of Habeas Corpus

Except as otherwise expressly provided by law, the
writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person
is deprived of his liberty, or by which the rightful
custody of any person is withheld from the person
entitled thereto (Section 1, Rule 102, Rules of Court).
The writ of habeas corpus was devised and exists as a
speedy and effective remedy to relieve persons from
unlawful restraint, and as the best and only sufficient
defense of personal freedom (Villavicencio vs.
Lukban,39 Phil. 778).
The prime specification of an application for a writ
of habeas corpus is restraint of liberty. The essential
objects and purpose of the writ 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 (Id.).
521
VOL. 42, DECEMBER 11, 1971 521

Lansang vs. Garcia
The U.S. Constitutional Provision

“The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or
invasion the public safety may require it (Section IX
[2], Art. I).
General Grounds for Relief by Writ of Habeas Corpus

Generally speaking, the grounds for relief by habeas
corpusare (1) deprivation of any fundamental or
constitutional rights, (2) lack of jurisdiction of the
court to enforce the sentence, or (3) excessive penalty
(Santiago vs. Director of Prisons, 77 Phil. 924; Harden
vs. Director of Prisons, 81 Phil. 741; Parulan vs.
Director of Prisons, G.R. No. L-28519, Feb. 17, 1968).
In order that the special remedy of habeas corpus
may be invoked, it is necessary that there should be
an actual and effective restraint or deprivation of
liberty. A nominal or moral restraint is not sufficient
(Zagala vs. Ilustre, 48 Phil. 282; Gonzales vs. Viola,
61 Phil. 824).
Who may grant the writ (Sec. 2, Rule 102)

The writ of habeas corpus may be granted by the
Supreme Court, or any member thereof, on any day
and at any time, or by the Court of Appeals or any
member thereof in the instances authorized by law,
and if so granted it shall be enforceable anywhere in
the Philippines, and may be made returnable before
the court or any member thereof, or before a Court of
First Instance, or any judge thereof for hearing and
decision on the merits. It may also be granted by a
Court of First Instance, or a judge thereof, on any day
or at any time, and returnable before himself,
enforceable only within his judicial district.
The Philippine Constitutional Provisions

Article III, Section 1 (14) reads:
(14) “The privilege of the writ of habeas corpus
shall not be suspended except in cases of invasion,
insurrection, or rebellion when public safety requires
it, in any of which
522

Lansang vs. Garcia
events the same may be suspended wherever during

such period the necessity for such suspension shall
exist.”
Article VII, Section 10 (2) reads:
(2) “The President shall be commander-in-chief of
all armed forces in the Philippines and, whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion,
insurrection, or rebellion. In case of invasion,
insurrection, or rebellion, or imminent danger
thereof, when the public safety requires it, he may
suspend the privilege of the writ of habeas corpus, or
place the Philippines or any part thereof under the
martial law.”
The danger arising from a suspension of the writ is
that the officers of the Government will make
unwarranted arrests. The occasions when the
privilege of the writ may be suspended are clearly
precarious when “the public safety may require” that
the Government should have the power to make
arrests on suspicion which it would, perhaps, find it
difficult to back up by evidence (Corwin, op.cit. p. 71).
Distinctions between Art. IIIand Art. VII, Sec. 10(2) of

the Philippine Constitution:
While Art. III impliedly denies the suspension of the
writ in case of imminent danger, Art. VII, Sec. 10(2)
expressly authorizes the President to suspend it when
there is imminent danger of invasion, rebellion or
insurrection. To reconcile the apparently conflicting
provisions, it has been ruled that where two
provisions of a written constitution are repugnant to
each other that which is last in order of time and in
local position is to bepreferred. Art. VII, Sec.
10(2),therefore, should prevail (Montenegro vs.
Castañeda, 91 Phil. 882).
The prevailing rule before the decision on the Matter

of Petition of Habeas Corpus of Teodosio Lansang,
Rogelio Arienda, et al.:
The determination of the necessity of suspending the
privilege of the writ of habeas corpus is conclusive
upon
523
VOL. 42, DECEMBER 11, 1971 523

Lansang vs. Garcia
the courts (Barcelon vs. Baker, 5 Phil. 87). This

constitutional authority of the President to suspend
the writ of habeas corpus in case of imminent danger
of invasion, insurrection or rebellion may not be
clearly placed in doubt (Montenegro vs. Castañeda,
supra).The purpose of the suspension is to enable the
President, as a precautionary measure, to detain
without interference persons suspected of harboring
designs harmful to public safety. The Constitution
goes no further (Nava vs. Gatmaitan, 90 Phil. 172).
The authority to decide whether the exigency has
arisen requiring suspension of the privilege of habeas
corpus belongs to the President and his decision is
final and conclusive upon the processes and upon all
court processes (Mon-tenegro vs. Castañeda, supra).
That condition will be considered by the Judicial
Department as continuing until the President shall
declare it to be at an end (Barcelon vs. Baker,5 Phil.
87).
Effects of the Suspension in Executive Proclamation:

The only grounds for suspension of the writ of habeas
corpus are invasion, insurrection, rebellion, or
imminent danger thereof. The inclusion of the word
“sedition” in the Executive Proclamation does not
invalidate the entire proclamation and in cases where
a person is detained not only for sedition but also for
grave offenses of rebellion and insurrection, the
detainee may still be confined in jail for these grave
offenses. The word “sedition” in said proclamation
should be deemed a mistake or surplusage that does
not taint the decree as a whole (Montenegro vs.
Castaneda, supra).
Since the suspension of the writ is designed to
prevent the issuance of this extraordinary remedy,
and since the writ issues from the courts but never to
the courts, it follows that arrests and detention by
order of the court are outside the purview of the
constitutional prerogatives. The persons detained for
investigation are under executive control. The
Constitution, therefore, tells the courts to keep their
hands off. However, if the cause of the detention is
524
Lansang vs. Garcia
for an offense other than rebellion or insurrection, the

court steps in upon a formal complaint presented and
the executive steps out. The corresponding court
assumes its role and the judicial processes takes its
course to the exclusion of the executive or the
legislative departments. Henceforth, the accused is
entitled to demand all the constitutional safeguards
and privileges essential to due processes (Nava vs.
Gatmaitan, G.R. L-4855; Hernandez vs. Montesa,
G.R. L-4964; Angeles vs. Abaya, G.R. L-5102, Oct. 11,
1951, 91 Phil. 172).
Judicial inquiry into the existence of a factual basis

for the Presidential order
Two conditions must concur for the valid exercise of
the authority to suspend the privilege of the writ,
namely, there must be “invasion, insurrection or
rebellion, or imminent danger thereof” (Art. III and
Art. VII, Sec. 10 [2], Phil. Constitution).
Findings in the Presidential Proclamation are not
conclusive upon the court. The militarism which, he
being the commander-in-chief of all armed forces,
may be exercised to suppress or prevent any lawless
violence, even without invasion, insurrection or
rebellion or imminent danger, and is accordingly
much broader than his authority to suspend the
privilege of the writ of habeas corpus.
American jurisprudence is not explicit or clear as
to the conclusiveness upon the courts. Some cases
deny the judicial power to review the findings made
in the proclamations (In Re Boyle, 57 Pac. 706; Moyer
vs. Peabody, 212 U.S. 78; Luther vs. Borden, 7 How 1,
12 1.ed. 581).
The opposite view, however, is supported in the
case of In re Burrus, 136 U.S. Sterling vs.
Constantine, 287 U.S. 775; U.S. vs. Phillips, 33 F.
Supp. 261).
When there is a substantial showing that the
assertion of state power has over-ridden private
rights secured by that constitution, the subject is
necessarily one for judicial inquiry in an appropriate
proceeding directed against the individuals charged
with the transgression. To such a case,
525
VOL. 42, DECEMBER 11, 1971 525

Lansang vs. Garcia
the Federal Judicial Power extends (Art. III, Sec. 2),

and so extending, the court has all the authority to its
exercise.
Precedents that Uphold Conclusiveness of Presidential

determination of Conditions of Emergency
Is the President the sole and exclusive judge whether
the exigency has arisen or is it to be considered as
open question, upon which every person to whom the
orders of the President are addressed, may decide for
himself, and equally open to be contested by every
militia man who shall refuse to obey the orders of the
President? The authority to decide whether exigency
has arisen belongs exclusively to the President, and
that his decision is conclusive upon all other persons
(Martin vs. Mott, 12 Wheat 19, 6 1.ed. 537).
In Luther vs. Borden, 7 How. 1,12 1.ed., the
United States Supreme Court also held that after the
President has acted and called out the militia, a
circuit court of the United States is not authorized to
inquire whether his decision is right. It is said that
this power of the President is dangerous to liberty,
and liberty abused. All powers may be abused or
placed in unworthy hands; but it would be difficult,
we think, to point out any other hands in which this
power would be more safe, and at the same time
equally effectual.
See also Luther vs. Borden (1849) 7 How., 44, 77;
Wilkes vs. Dinsman (1849), 7 How., 130,131; Murray
vs. Hoboken, etc., Co. (1855), 18 How., 280; United
States vs. Speed (1868), 8 Wall., 83; Mullan vs. United
States (1890), 140 U.S., 245; Nishimura Ekiu vs.
United States (1891), 142 U.S., 660; Lem Moon Sing
vs. United States (1894), 158 US., 538; Ex parte Field
(1862), 5 Blatch., 77, 81 (Fed. Case No. 4761); Allen
vs. Blunt, 3 Story, 745 (Fed. Case No. 216; Gould vs.
Hammond, 1 McAll., 237, 239 (Fed. Case 5638);
United States vs. Packages (1862), 27 Fed. Case, 288,
289; United States vs. Cement (1962), 28 Fed. Case,
293; United States vs. Cotton (1872), 27 Fed Case,
325, 328; United States vs. Tropic Wind, 28 Fed.
Case, 221; In re Day, 27 Fed. Rep., 680; Hammer vs.
Mason, 24 Ala.,
526

Lansang vs. Garcia
485; People vs. Pacheco (1865), 27 Cal., 223; Porter vs.

Haight(1873), 45 Cal., 639; Evansville and C. Ry. Co.
vs. Evansville, 15 Ind., 421; Koehler vs. Hill, 60 Ia.,
566; People vs. Wayne (1878), 39 Mich., 20; State vs.
Town of Lime (1877), 23 Minn. 526; People vs. Parker,
3 Nebraska, 432; Kneedler vs. Lane (1863), 45 Penn.
St., 292; In re Legislative Adjournment (1893), 18
Rhode Island, 834; 22 L.R.A., 716;Chapin vs. Ferry
(1891), 3 Washington, 396; 28 Pac. Rep., 758; 15
L.R.A., 120; Druecker vs. Solomon, 21 Wis., 621; 94
Am. Dec, 571; People vs. Bissel (1857), 19 Ill., 229,
232, 233; Sutherland vs. Governor (1874) 29 Mich.,
320, 330; Ambler vs. Auditor General (1878),38 Mich.,
746, 751; State vs. Warmoth (1870), 22 La. An. Rep.,
1; 13 Am. Rep., 126; Jonesboro, etc., Co. vs. Brown
(1875), 8 Baxter (Tenn.) 490; 35 Am. Rep. 713, cited
in Barcelon vs. Bakea, supra.
If one should wholly refuse to act, or should
undertake to divest itself, or abdicate its legitimate
functions, it would by no means follow that another
department, expressly limited to specific duties,
would thereby acquire ungranted powers. The
abdication of executive functions by the executive, for
instance, would not constitute the judicial the
executive department of the country; nor would a
failure or refusal of the legislative to pass needed
statutes constitute the executive the law-making
power. Each department has its true boundaries
prescribed by the Constitution, and it can not travel
beyond them. (United States vs. Ferreira(1851), 13
How., 40; Little vs. Barreme (1804), 2 Cranch, 170.)
If the judicial power extends so far, the guaranty
contained in the Constitution of the United States is
a guaranty of anarchy, and not of order. Yet if this
right does not reside in the courts when the conflict is
raging; if the judicial power is at that time bound to
follow the decision of the political (department of the
Government), it must be equally bound when the
contest is over. At all events, it (the power to decide)
is conferred upon him (the President) by the
Constitution and laws of the United States, and must
therefore be respected and enforced in its judicial
527
VOL. 42, DECEMBER 11, 1971 527

Lansang vs. Garcia
tribunals (Luther vs. Border [1849], 7 How., 43, 44;

Martin vs. Mott [1827], 12 Wheat, 29-31).
In short, the status of the country as to peace or
war is legally determined by the political department
of the Government and not by the judicial
department. When the decision is made the courts are
concluded thereby, and bound to apply the legal rules
which belong to that condition. The same power
which determines the existence of war or insurrection
must also decide when hostilities have ceased—– that
is, when peace is restored. In a legal sense the state
of war or peace is not a question in pais for courts to
determine. It is a legal fact, ascertainable only from
the decision of the political government. (The
Fortuna[1818], 3 Wheat., 236; United States vs.
Palmer [1818], 3 Wheat., 610; Nuestra Señora, etc.
[1819], 4 Wheat, 497; Santisima Trinidad (1822), 7
Wheat., 283; Rose vs. Himely [1806], 4 Cranch, 241;
Foster vs. Neilson [1829], 2 Peters, 253).
Within any construction which could be very well
given to the President’s proclamation, no part of that
State (Tennessee) maintains as yet a loyal adhesion
to the Union and Constitution. It is the duty of the
President, however, to decide that point. Until he
declares to the contrary, the court must hold that the
legal condition of hostility continues. The exceptions
in the proclamation, so far as made by the President,
courts can and must enforce. But if it be correct that
by the terms of that proclamation the President
intended to devolve on the courts the duty of
determining judicially the status of a State orpart of a
State by an inquiry into its loyalty, or its occupation
from time to time by the United States forces
irrespective of a decision thereon by the executive,
still courts could not then acquire the power. The
limits upon their constitutional and legal functions
could not thus be emerged. Political power could not
be so delegate to the courts. They (the courts) can not
be charged with any duties not judicial; “judicial
power” alone is invested in them (the courts) under
the Constitution. (United States vs. Packages [1862],
27 Fed. Case, 288, 289).
528
Lansang vs. Garcia
In the case of Druecker vs. Solomon (21 Wis., 621; 94

Am. Dec., 571, 576, 577) the supreme court of
Wisconsin, in an action for false imprisonment for the
arrest and detention during a state of insurrection,
etc., the court cites and approves of the doctrine laid
down by the Supreme Court of the United States in
the case of Martin vs. Mott (12 Wheat., 19) and holds
that the action of the political department of the
Government in such cases is final and conclusive
against the judicial department.
Authorities that uphold the power of the court to

inquire into the determination of the President
Ex Parte Milligan, 4 Wall., 2, 18 L. ed., 281 and
Duncan vs. Kahannoku, 327 U.S. 304, the U.S.
Supreme Court entertained actions questioning the
authority of the President as commander-in-chief
toorder the trial of civilians by military courts. Inboth
cases, the military trials were held unconstitutional.
Far from being full and plenary, the authority to
suspend the privilege of the writ is circumscribed,
confined and restricted, not only by prescribed setting
or the conditions essential to its existence, but, also,
as regards the time when and the place where it may
be exercised. Like the limitations imposed by the
Fundamental Law upon the legislative department,
adherence thereto and compliance therewith may,
within proper bounds, be inquired into by the courts
of justice. Otherwise, the explicit constitutional
provisions thereon would be meaningless. (See also In
re Burrus,136 U.S. 500; Sterling vs. Constantin, 287
U.S. 375;Joyver vs. Browning, 30F Supp. 512; U.S. vs.
Philipps, 33 F. Supp. 26; Fiske vs. Kansas, 274 U.S.
380).
The Supreme Court has the Authority under the
Constitution to Inquire into the Existence of a Factual
Basis for Suspending the Privilege of the Writ of
Habeas Corpus
For a valid suspension of the privilege of the writ, the
conditions set forth in the Constitution must exist. (In
the Matter of the Petition for Habeas Corpus by
Teodosio Lansang, et al., G.R. L-33962, 33965, 33973,
33982, 34004, 34013, 34639, 34265, 34339, Dec. 11,
1971).
529
VOL. 42, DECEMBER 11, 1971 529

Lansang vs. Garcia
Pursuant to the principle of separation of powers

underlying our system of government, the Executive
is supreme within his own sphere. However, the
separation of powers, under the Constitution, is not
absolute. What is more, it goes hand in hand with the
system of checks and balances, under which the
Executive is supreme, as regards the suspension of
the privilege, but only if and when he acts within the
sphere allotted to him by the Basic Law, and the
authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this
respect, is, in turn, constitutionally supreme.
The abdication of the executive functions by the
executive, for instance, would not constitute the
judicial and the executive departments of the country;
nor would a failure or refusal of the legislature to
pass needed statute constitute the executive the law
making power (Barcelon vs. Baker, Supra, citing U.S.
vs. Ferreira, 13 How. 40).
Extent of Inquiry by the Court

In the exercise of such authority, the function of the
Court is merely to check—– not to supplant—–the
Executive, or to ascertain merely whether he has
gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him
or to determine the wisdom of his act (Schwarts, An
Introduction to American Administrative Law, 2d ed.
190).
The legislative judgment as to how that threat
may best be met consistently with safeguarding of
personal freedom is not to be set aside merely
because the judgment of judges would, in the first
instance, have chosen other methods (Communist
Party vs. Subversive Activities Control Board, 367
U.S.A. See also Nebbia vs. New York, 291 U.S. 502).
The Solicitor General urged that “judicial inquiry
into the basis of the questioned proclamation can go
no further than to satisfy the Court not that the
President’s decision is correct and that public safety
was endangered by the rebellion and justified the
suspension of the writ, but that in suspending the
writ, the President did not act arbitrarily”. No cogent
reason has been submitted to warrant
530

Central Bank vs. Vasquez
the rejection of such test. (In the Matter of the Petition

for Habeas Corpus of Teodosio Lansang, et al.,supra).
—– JUDGE JORGE COQUIA
______________
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448 SUPREME COURT REPORTS ANNOTATED

NO.L-33964. December 11, 1971.

IN THE MATTER OF THE PETITION FOR

No. L-33965. December 11, 1971.

ROGELIO V. ARIENDA, petitioner, vs. SECRETARY

No. L-33973. December 11, 1971.

LUZVIMINDO DAVID,petitioner, vs.

No. L-33982. December 11, 1971.

VOL. 42, DECEMBER 11, 1971 449

No. L-34004. December 11, 1971.

IN THE MATTER OF THE APPLICATION FOR

No. L-34013. December 11, 1971.

REYNALDO RIMANDO,petitioner, vs. BRIG.GEN.

No. L-34039. December 11, 1971.

IN THE MATTER OF THE APPLICATION FOR

No. L-34265. December 11, 1971.

IN THE MATTER OF THE PETITION FOR

No. L-34339. December 11, 1971.

GARYB. OLIVAR,assisted by his father, GEORGE

Constitutional law; Judicial review; Habeas Corpus.—–

450 SUPREME COURT REPORTS ANNOTATED

Lansang vs. Garcia

Same; Grant of power to suspend writ privilege neither

VOL. 42, DECEMBER 11, 1971 451

Lansang vs. Garcia

bellion and justified the suspension of the writ, but that in

452 SUPREME COURT REPORTS ANNOTATED

Same; Same; Release of detainees will not be ordered

CASTROand BARREDO, JJ.,concurring:

Constitutional law; Release of detained persons when

FERNANDO, J.,concurring and dissenting:

Constitutional law; Separation of Powers; Persons

VOL. 42, DECEMBER 11, 1971 453

Lansang vs. Garcia

until warrant is issued.—–In the case of Nava vs.

ORIGINAL ACTION in the Supreme Court. Habeas

The facts are stated in the opinion of the Court.

454 SUPREME COURT REPORTS ANNOTATED

Jose W. Diokno and Juanito R. Remulla for petitioner

In the evening of August 21, 1971, at about 9 p.m.,

“WHEREAS, on the basis of carefully evaluated

VOL. 42, DECEMBER 11, 1971 455

“WHEREAS, these lawless elements, acting in concert

Presently, petitions for writs of habeas corpus were

1. TEODOSIO LANSANG, RODOLFO DEL

455 SUPREME COURT REPORTS ANNOTATED

of the Philippine Constabulary—– which is

VOL. 42, DECEMBER 11, 1971 457

458 SUPREME COURT REPORTS ANNOTATED

C. Rabago—– as President of the Conference

Upon the filing of the aforementioned cases, the

VOL. 42, DECEMBER 11, 1971 459

460 SUPREME COURT REPORTS ANNOTATED

These safeguards are set forth in:

VOL.42, DECEMBER 11, 1971 461

connection with the suspension of the privilege of the

“WHEREAS, on the basis of carefully evaluated

482 SUPREME COURT REPORTS ANNOTATED

dividual rights and family reiations, and whose political,

1 Words in bracket ([]) are those appearing m the original

VOL. 42, DECEMBER 11, 1971 463

On September 1, 1971, Cases Nos. L-33964, L-33965,

464 SUPREME COURT REPORTS ANNOTATED