By express mandate of the Constitution (Article III, Section 1, Paragraph 14), 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. The power to suspend the privileges of the writ of habeas corpus in case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, has been lodged by the Constitution (Article VII, Section 10, Paragraph 2) in the President.

On January 31, 1905, for the first time in Philippine history, the writ of habeas corpus was suspended in the provinces of Batangas and Cavite under the following Executive Order issued by Governor General Luke E. Wright:

"WHEREAS, certain organized bands of ladrones exist in the Provinces of Cavite and Batangas who are levying forced contributions upon the people, who frequently require them, under compulsion, to join their bands, and who kill or maim in the most barbarous manner those who fail to respond to their unlawful demands, and are therefore terrifying the law-abiding and inoffensive people of those provinces; and

"WHEREAS, these bands have 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; and

"WHEREAS, because of the foregoing conditions there exists a state of insecurity and terrorism among the people which makes it impossible in the ordinary way to conduct preliminary investigations before the justices of the peace and other judicial officers:

"In the interest of public safety, it is hereby ordered that the writ of habeas corpus is from this date suspended in the Provinces of Cavite and Batangas."

On October 22, 1950, for the second time in Philippine history, the suspension of the privilege of the writ of habeas corpus was decreed by virtue of the following Proclamation No. 210 issued by the President:

"WHEREAS, lawless elements of the country have committed overt acts of sedition, insurrection and rebellion for the purpose of overthrowing the duly constituted authorities and, in pursuance thereof, have created a state of lawlessness and disorder affecting public safety and the security of the state;

"WHEREAS, these acts of sedition, insurrection and rebellion consisting of armed raids, sorties and ambushes and the wanton acts of murder, rape, spoilage, looting, arson, planned destruction of public and" private buildings, and attacks against civilian lives and properties, as reported by the Commanding General of the Armed Forces, have seriously endangered and still continue to endanger the public safety;

"WHEREAS, these acts of sedition, insurrection and rebellion have been perpetrated by various groups of persons well organized for concerted action and well armed with machine guns, rifles, pistols and other automatic weapons, by reason whereof there is actual danger of rebellion which may extend throughout the country; .

"WHEREAS, 100 leading members of these lawless elements have been apprehended and are presently under detention, and strong and convincing evidence has been found in their possession to show that they are engaged in rebellious, seditious and otherwise subversive acts as above set forth; and

"WHEREAS, public safety requires that immediate and effective action be taken to insure the peace and security of the population and to maintain the authority of the government;

"NOW, THEREFORE, I, ELPIDIO QUIRINO, 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 sedition, 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."

The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. (Villavicencio vs. Lukban, 39 Phil., 778, 788.) It secures to a prisoner the right to have the cause of his detention examined and determined by a court of justice, and to have ascertained if he is held under lawful authority. (Quintos vs. Director of Prisons, 55 Phil., 304, 306.)

The necessity for suspending the writ of habeas corpus in 1905 arose obviously from the fact that it was "impossible in the ordinary way to conduct preliminary investigations before the justice of the peace and other judicial officers," so that undoubtedly it was never aimed at the indefinite detention of suspects, but at an investigation (other than judicial) to determine whether there is evidence sufficient for the filing in court of the necessary information.

The immediate cause for the issuance of Proclamation No. 210 on October 22, 1950, was the apprehension and detention of 100 alleged leading members of lawless elements in whose possession strong and convincing evidence was allegedly found showing that they are engaged in rebellious, seditious and otherwise subversive acts. The privilege of the writ of habeas corpus had to be suspended not only because it was desirable for the prosecuting officials to have sufficient time to investigate and file the necessary charges in court, but also because a public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours, shall suffer the penalties provided in article 125 of the Revised Penal Code. In other words, the only effect of Proclamation No. 210 is that any person detained thereunder has no right to have the cause of his detention examined and determined by a court of justice through a writ of habeas corpus.

The important question is whether or not, after a person covered by the Proclamation has been formally indicted in court by the" filing against him of an information charging rebellion with multiple murder, arson and robberies, he may be entitled to bail.

Under paragraph 16, Section 1, Article III of the Constitution, all persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. The crime of rebellion or insurrection is certainly not a capital offense, because it is penalized only by prision mayor and a fine not to exceed 20,000 pesos. The privilege of the writ of habeas corpus and the right to bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of the Constitution was that the suspension of the privilege of the writ of habeas corpus carries or implies the suspension of the right to bail, they would have very easily provided that all persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong and except when the privilege of the writ of habeas corpus is suspended. As stated in the case of Ex parte Miligan, 4 Wall. 2, 18 Law Ed. 297, the Constitution limited the suspension to only one great right, leaving the rest to remain forever inviolable.

"It is essential to the safety of every government that, in a. great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus, In every war, there are' men of previously good character, wicked enough to counsel their fellow citizens to resist the measures deemed necessary by a good government to sustain its just authority and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an immediate public investigation according to law may not be possible; and yet, the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should see fit, in the exercise of a proper discretion, to make arrests, should not be required to produce the person arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of common law. If it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were .guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an established court, assisted by an impartial jury, was the only sure way of protecting the citizen against oppression and wrong. Knowing this, they limited the suspension of one great right, and left the rest to remain forever inviolable."

The purpose of the Proclamation has already been accomplished in respect of those who are now facing charges in court, to be dealt with necessarily in accordance with the Constitution 'and the law. The court, in passing upon petitions to bail and granting the same in proper cases, does not inquire into the cause of their detention which is plainly under and by virtue of commitments issued by the court upon the filing of the information for rebellion with multiple murder, arson and robberies. The court, therefore, cannot be said to be interfering in an act of the Executive, for it cannot be seriously contended that, after the filing of the information, the accused continues to be under detention as a result of an executive commitment and still covered by the suspension of the privilege of the writ of habeas corpus. Otherwise, the suspension will operate as a judgment of conviction, in violation of the constitutional mandate that no person shall be held to answer for a criminal offense without due process of law (Article III, Section 1, Paragraph 15). "The laws which protect the liberties of the whole people must not be violated or set aside in order to inflict, even upon the guilty, unauthorized though merited justice." Ex parte Milligan, supra.

The right to bail, along with the right of an accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial," to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it be contended that the suspension of the privilege of the writ of habeas corpus includes the suspension of the distinct right to bail or to be provisionally at liberty, it would a fortiori imply the suspension of all his other rights (even the rights to be tried by a court) that may win for him ultimate acquittal and, hence, absolute freedom. The latter result is not insisted upon for being patently untenable. It is not correct to say that, if a person covered by Proclamation No. 210 is not entitled to be released before he is indicted in court, there is more reason to hold that he should not be released after an information is filed against him, because it is then logical to assume that the Government holds sufficient evidence. If he cannot secure his release before the filing of an information, it is because, in view of the suspension of the privilege of the writ of habeas corpus, the court cannot look into the legality of his detention under an executive act, and not because he is assumed to be guilty. And, as already stated, after the filing of the information, in granting bail in proper cases, the court does not determine the legality of his prior detention which has already been superseded by a detention under judicial process, but merely proceeds with and carries into effect its jurisdiction over the criminal case and grants a right guaranteed by the Constitution. Besides, it is significant that in all criminal prosecutions the accused shall be presumed to be innocent (Article III, Section 1, Paragraph 17).

We are not insensitive to the proposition that the very nature of the crime of rebellion suggests the likehood that a person accused thereof will jump his bail. The remedy, however, is unfortunately not in the hands of the court. The lawmakers or the framers of the Constitution should have made the offense capital or even unbailable.

In the cases now before us, the accused have been charged with rebellion so complexed with other offenses as to make them capital. Their right to bail is accordingly not absolute and may be denied when evidence of guilt is strong. The filing of the information implies that the prosecution holds sufficient evidence for conviction, 'and it is fair to suppose that the court will duly exercise its judgment when called upon to pass on the question of whether or not the evidence of guilt is strong. At any rate, on admission to bail, the accused is delivered to the custody of his sureties as a continuance of the original detention. (U. S. vs. Addison and Gomez, 27 Phil., 563; U. S. vs. Sunico and Ng Chiong, 40 Phil. 826).

And it should be borne in mind that if the worse comes to the worst to the extent that the security of the State is in fact imperiled and the regular constitutional processes can no longer be observed with general safety to the people, the President is authorized by the Constitution (Article VII, Section 10, Paragraph 2) to "place the Philippines or any part thereof under martial law." Even then, the primordial objective should be a "regime of justice" as contemplated in the Preamble of the Constitution. The stubborn fact, however, is that the mere suspension of the privilege of the writ of habeas corpus is an admission that the courts can function and are functioning normally; otherwise, there is no need for the suspension as there will be no court to grant the writ.

Reyes, and Jugo, JJ., concur.

PABLO, M.;

En tiempos normales la Constitucion de Filipinas rige en su totalidad. Algunos de los derechos individuates, como el derecho del acusado a la libertad provisional bajo fianza, se hace efectivo por los juzgados por orden perentoria. Cuando a un acusado se le detiene y no se resuelve su peticion de libertad bajo fianza, puede acudir a un tribunal de superior categoria por medio de un recurso de mandamus para obligarle a actuar en un sentido u otro, que es su deber imperative Un condenado por un juzgado sin jurisdiction acude en certiorari a un tribunal superior para pedir la anulacion de la condena. Un individuo ilegalmente detenido por alguna autoridad u otra persona, puede acudir a los tribunales por medio de un recurso de habeas corpus y pedir que se le ponga en libertad. Los mismos abogados en ejercicio indistintamente utilizan un recurso u otro. Existe confusion en cuanto a que clase de recurso debe ejercitarse en cada caso. No es extrano. El reglamento dice que "el mandamiento de Habeas Corpus sc hara extensivo a todos los casos de confinamiento o detencion ilegales, en los cuales se prive a una persona de su libertad, o impida a una persona ejercer sus legitimos derechos en la custodia legal de otra." (Art. 1, Regla 102). Revisando los expedientes de este Tribunal, se vera que en algunos casos se empleo el recurso de habeas corpus para solicitar la libertad provisional de un acusado mediante prestacion de fianza, como en Herras Teehankee contra el Director de Prisiones, Juez Rovira y otros ^[1] (43 Off. Gaz., 513) ; otros utilizaron los remedios de certiorari y 'mandamus, como en el asunto de Marcos y Lizardo contra el Juez de Primera Instancia de Ilocos Norte (VII Lawyers' Journal, 66) ; en Payao contra Juez Lesaca, el recurso de mandamus; en Herras Teehankee contra Rovira y otros ^[2] (42 Off. Gaz1., 717), los recursos de certiorari y mandamus; y en el asunto de Montalbo contra Juez Santamaria (54 Jur. Fil., 1026), el recurso de mandamus. Este Tribunal, desatendiendo tecnicismos, decidio los asuntos en el fondo; tuvo en cuenta no el tltulo sino la esencia de la solicitud, Galao y otro contra Juez Diaz y otro^[3] (41 Off. Gaz., 873).

Estos recursos de certiorari y mandamus no son mas que remedios derivativos del recurso de habeas corpus; los tres se dirigen a un mismo fin: el obtener la libertad del que esta indebida o ilegalmente detenido.

En Estados Unidos el recurso de habeas corpus se utiliza para la obtencion de Iibertad provisional bajo fianza:

"It is proper to use the writ of habeas corpus for the purpose of securing admittance to bail." Ex parte Perkov, 45 F. Supp. (D.C. Cal. 1942), 864.

"The writ of habeas corpus may be had for purpose of letting prisoner to bail in civil and criminal actions as authorized in Constitution." Ex parte Womack, 71 Pac. 2d (Okl. Cr. App. 1937), 494.

"Remedy of person in custody on criminal charge to secure release on bail is by habeas corpus." Bennett v. State, 118 So. (Fla. 1928), 18.

"Prisoner denied bail or asked excessive bail has absolute right to invoke habeas corpus remedy, and court's duty to grant writ and to admit to bail is mandatory." Ex parte Stegman, 163 A. (N. J. Ch. 1933), 422.

"Persons held under indictment for capital offense are entitled as of right to hearing by way of habeas corpus upon issue of bail." Ex parte Readhimer, 60 S. W. (2d) (Tex Cr. App. 1933), 788.

"The use of the writ of habeas corpus to speedily determine whether a person charged with an offense is entitled to bail before trial and conviction is authorized by law, so as to render effective the rights to bail and to liberty as provided by the Constitution." Ex parte McDaniel, 97 So. (Fla. 1923), 317.

"The use of the writ of habeas corpus to speedily determine whether a person charged with an offense is entitled to bail before trial and conviction is authorized by law." Ex parte Hatcher, 98 So. (Fla. 1923), 72.

"A writ of habeas corpus is an appropriate and proper remedy in aid of bail." Mozorosky v. Hurlburt, 198 Pac. (Or. 1921), 556.

"Where a lieutenant in a military posse, seeking a deserter, was wounded by a shot in the dark, and fired at the place where he saw the flash, and killed the shooter, who was found near an illicit still, and, although the lieutenant was confined thereafter by the federal authorities for over a year, the state authorities had taken no steps to bring the charge made against the lieutenant and another member of the posse by indictment to a hearing conclusion, habeas corpus would issue to release both defendants on bail." State of Florida v. Tooher, 283 F. (U.S.D.C. Fla. 1922) 845.

"A person charged with being an accessory before the fact to murder by counseling, hiring, or otherwise procuring murder to be committed is charged with a capital offense under statutes of this state, and when held in actual custody under a mittimus issued by a committing magistrate to await the action of the grand jury has a right upon habeas corpus proceedings before a justice of the Supreme Court to show by all the evidence proper in the case, including that for the prosecution, that the proof is not evident and the presumption is not great of the guilt of the accused of a capital offense, and that consequently the accused is entitled to bail under the Constitution." (Syllabus No. 1, Ex parte Nathan, 50 So., 38.)

"On the lower court refusing bail on appeal being taken, habeas corpus proceedings therefor in the Supreme Court is the proper practice." (Syllabus No. 2, Packenham v. Reed, 79 Pac, 786.)

"Any one who is in custody on a criminal charge for want of bail is entitled to a writ of habeas corpus admission to bail, and the petitioner need only allege that he is confined for want of bail." (In re Haigler, 137 Pac, 423.)

"Under Const. U. S. art. 1, section 9, and Const. Wash. art. 1, section 13, providing 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; section 20, providing that all persons charged with crime shall be bailable by sufficient sureties except for capital offenses; and section 22, providing that in criminal prosecutions the accused shall have the right to appeal; and Rem. & Bal. Code, section 1077, providing1 relative to habeas corpus that the writ may be had for the purpose of admitting to bail in civil and criminal actions habeas corpus will lie to procure the release on bail of a person held under a body execution pending an appeal from an order denying a motion to vacate the order for the issuance of such execution, notwithstanding Rem. & Bal. Code, section 1075, providing relative to habeas corpus that no court or judge shall inquire into the legality of any judgment or process whereby the party is in custody or discharge him when the term of commitment has not expired, when he is held upon any process issued on any final judgment of a court of competent jurisdiction." {State v. Foster, 146 Pac, 169.)

"Application for a writ of habeas corpus by Kizzie Nathan alleging that she is unlawfully restrained of her liberty in the actual custody of the sheriff of Leon county on a charge of accessory before the fact to murder, by being denied the right to bail; Held: Petitioner was permitted to give bail with sufficient sureties as required by law." Ex parte Nathan (Before a Justice of the Supreme Court of Florida), 50 So., 38.

"Appeal from an order in habeas corpus refusing the petitioner admission to bail who is held on a charge of murder in the first degree; Held: Looking at all of the evidence offered and viewing it in the light of the presumption of innocence, and remembering that to grant bail is the ride and the refusal of it is the exception, petitioner is admitted to bail with sufficient sureties in suck sum as may be reasonable and just in view of all the circumstances of the case." In re Haighler (Supreme Court of Arizona), 137 Pac, 423.

"Petition for a writ of habeas corpus alleging that an appeal was taken by the relator from an order of the inferior court denying his motion to vacate an order of arrest. It appears that one Amy D. Bronson secured a judgment against the relator for damages for injury to person, and the judgment being unsatisfied, an execution was issued against his person and was arrested and taken into custody by the sheriff until the judgment is satisfied. The petition prays for an order fixing bail pending determination of the appeal; Held: The writ of habeas corpus is an appropriate and proper remedy in aid of bail. Writ of habeas corpus granted and relator released on bail upon a bond of $3,000." State vs. Poster (Supreme Court of Washington), 146 Pac, 169.

"Petition for writ of habeas corpus to admit to bail. Petitioner had been committed to the reform school of the state of Washington until he should attain the age of 13 years, or until he should otherwise be regularly discharged therefrom. Thereafter he gave notice of appeal. Bail was denied pending the hearing on appeal; Held: An infant has a right of appeal when committed to the reform school, and incidentally a right to be admitted to bail pending such appeal. Habeas corpus is an appropriate remedy to bail." Packenham vs. Reed, 37 Wash., 258, 79 Pac, 786.

"The writ of habeas corpus lies where the imprisonment is illegal and no other remedy is available to secure a release therefrom. As in the case of other extraordinary prerogative writs, the writ of habeas corpus will not ordinarily be granted where there is another adequate remedy, by appeal or writ of error or otherwise. But, although another remedy exists, it is not necessarily exclusive so as to oust a court of jurisdiction to grant relief on habeas corpus, and, in the exercise of its discretion, the writ may be granted notwithstanding the existence of another remedy. Generally where another remedy is provided, failure to take advantage of it until the expiration of the time within which relief may be had will not authorize relief in habeas corpus, hut in such cases the writ may issue in the discretion of the court. Defenses which might have been made in an action cannot be reserved as grounds of attack in habeas corpus upon the judgment after rendition." (29 C. J., 17-18.)

"The fact of the existence of another remedy does not necessarily preclude a resort to the writ of habeas corpus to obtain relief from illegal detention. Thus, while there are decisions to the effect that, even when a judgment is wholly void, a defendant will not, except in rare and extraordinary cases, be relieved from imprisonment thereunder if appropriate relief can be granted by writ of error or appeal, it is the well established general rule that one restrained of his liberty by virtue of a judgment, order or sentence, void by reason of the court's want of jurisdiction to make the same, may be released by a writ of habeas corpus, whether such release could have been secured by writ of error or not. The existence of a statutory remedy whereby a person restrained, of his liberty may be released is usually held to be cumulative and not exclusive. Thus it has been ruled that the writ of habeas corpus may be issued to determine the legality of the confinement of a person in a state insane asylum, without first compelling a resort to a statutory proceeding1 for that purpose at least where there is some doubt as to the effect of the statute. And it has been held that a parent may have the writ issued for the purpose of securing the release of his child from a benevolent institution although a remedy is given the parent by the act under which the child was committed; the remedy so provided being merely cumulative. The discretion of federal courts to issue writs of habeas corpus or to require the petitioner to resort to appeal or writ of error if appropriate relief can be thereby obtained is treated elsewhere in this article." (12 R. C. L., 1186-1187.)

Y el Tribunal Supremo de los Estados Unidos en Ex parte Bollman y Ex parte Swartwout, (2 Law. Ed., 554) dijo:

"The appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed, is by the writ now applied for. Of consequence, a court possessing the power to bail prisoners not committed by itself, may award a writ of habeas corpus for the exercise of that power."

Si hemos de atenernos a la definition del habeas corpus y a los precedentes americanos citados, el recurso que tiene un acusado para pedir la libertad bajo fianz'a es el de habeas corpus. Pero no debe confundirse el remedio de habeas corpus con el que originariamente obtuvieron los que luchaban por los derechos individuales contra las demasias del monarca. El habeas corpus de la legislation vigente es mas amplio en su esfera de accion; no se dirige solamente contra las detenciones del Ej ecutivo; es un instrumento procesal contra los juzgados que indebidamente ordenan la detention de una persona, contra la Comision de Inmigracion que detiene provisionalmente a los que estan condenados a deportacion, contra el amo que priva de su libertad al criado, contra la duena de la casa de hetairas que priva a una pupila de su libertad, contra el superintendente de un hospital que detiene ilegalmente a un paciente, contra el Senado de Filipinas y de los Estados Unidos por la detencion de un condenado por desacato, contra la Camara de Representantes de los Estados Unidos, contra cualquiera, ya sea un funcionario publico o no, que en una u otra forma detiene ilegalmente a alguna persona.

En casos de invasion, rebelion o insurreccion, o peligro inminente de ellas, cuando la seguridad publica Io requiera, el privilegio del mandamiento de habeas corpus se suspende, o se declara la ley marcial en cualquier parte o en toda la nacion.

En Estados Unidos no se determina quien puede suspenderlo. Su Constitucion dice asi:

"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." (Par. 2, Sec. 9, Art. I, Constitution of the United States).

En Filipinas la Asamblea Constituyente tuvo a bien confiarlo al Presidente. El Articulo III, parrafo 14 de la Constitucion dice textual mente:

"El Presidente sera el generalising de todas las fuerzas armadas, y, siempre que fuere necesario, podru Hamarlas para impedir o sofocar toda manifestacion de violencia ilegal, invasion, insurreccion o rebelion. En caso de invasion, insurreccion o rebelion, o peligro inminente de ellas, cuando la segnridad publica lo requiera, podra suspender el privilegio del mandamiento de habeas corpus o declarar la ley marcial en todo el pais o en cualquier parte de el."

En 22 de octubre de 1950, el Presidente suspendio el privilegio del habeas corpus para aquellos detenidos por rebelion o insurreccion. La razon por que se toma esta medida descansa en la seguridad publica.

No es un secreto para nadie las frecuentes matanzas a sangre fria de ninos, viejos y mujeres, las emboscadas de pasajeros inocentes, de la viuda del Presidente Quezon y comitiva, el robo a sangre y fuego, el secuestro de particulares y de funcionarios publicos; el de inspectores de eleccion esta a la orden del dia; son victimas del secuestro personas pertenecientes a diferentes partidos. No solamente existe el deseo de derrocar al gobierno establecido sino tambien el de sembrar el terror y la anarquia en todas partes para Jirustrar la expresion libre del sufragio, que es el alma de la democracia. Para impedir la ola destructora de rebelion o insurrection, el Poder Ejecutivo, como medida de propia preservacion, detiene a todos cuantos tienen interveneion en ella. Si se suelta a los detenidos, pueden volver a las andadas, pueden reunirse con sus companeros y reduplicar su obra de destruccion; de ahi la necesidad de suspender el recurso de habeas corpus. El gobierno, escudado por la suspension del habeas corpus, podria con facilidad suprimir la rebelion e insurreccion deteniendo indefinidamente a todos los sospechosos; pero eso daria lugar a muchas injusticias, la detencion de inocentes. Consciente de su obligacion de velar por los derechos individuales, no se vale de este privilegio: detuvo pero entrego los detenidos a los tribunales de justicia para que fuesen juzgados. Eso es motivo de satisfaccion. No quiere obrar solo; no quiere ser despota; solicita la colaboracion de los tribunales. Desea que los juzgados y no el decidan quienes son los culpables y quienes son los injustamente acusados. Pero debe entenderse que mientras no esten absueltos, no deben ser puestos en libertad bajo fianza; su Hbertad pone en peligro la seguridad del Estado. En muchos respectos la Hbertad de los acusados pone en peligro la seguridad nacional, ya facilitando ayuda economica o provisiones de boca, proporcionando medicinas o trasmitiendo informes a los que estan en espera del tnomento oportuno para dar el golpe de gracia y, lo que es peor aun, empleando el "sabotage."

Si su detencion por el Poder Ejecutivo esta justificada por la seguridad publica ¿por que no esta justificada tambien su detencion cuando esta se ordena por los tribunales de justicia? Es tan peligroso el detenido por rebelion e insurreccion puesto en libertad por el Poder Ejecutivo como el acusado de )os mismos delitos puesto en libertad por el Poder Judicial. Si el objeto de la suspension del recurso de habeas corpus es suprimir la rebelion e insurreccion, ¿no es un contrasentido conceder libertad a los que estan acusados de rebelion o insurreccion? Soltarlos es ayudarles: es poner en peligro la salud del pueblo.

Mientras rige la suspension del recurso de habeas corpus, por tanto, los acusados de rebelion o insurreccion no tienen derecho a la libertad provisional bajo fianza. Razon fundamental: para ponerles a buen recaudo.

Se arguye que la suspension del privilegio de habeas corpus se aplica solamente a las detenciones realizadas por el Poder Ejecutivo y no a los acusados ante los tribunales de justicia.

La proclama no distingue para que clase de detencion esta suspendido el recurso: es aplicable, por tanto, no solamente a los detenidos por el Poder Ejecutivo sino tambien a los detenidos por orden judicial. Seria el mayor de los absurdos privar de este privilegio a los detenidos por el Poder Ejecutivo y no a los detenidos por los tribunales. No parece sino que los tribunales tienen que regirse por la parte de la constitucion suspendida. Si es constitucional privar del recurso de habeas corpus a los detenidos por el Poder Ejecutivo, con mayor razon se debe privar de ello a los acusados ante los tribunales porque el ministerio fiscal posee pruebas que demuestran su culpabilidad.

Se arguye que el Poder Ejecutivo puede detener por todo el tiempo que quiera sin necesidad de dar cuenta de la detencion, pero en cuanto los detenidos se han colocado bajo la jurisdiccion de los tribunales, ya tienen derecho a la libertad bajo fianza. Esta teorla fomenta el establecimiento de un gobierno dictatorial y autocratico y no quisiera que en Filipinas se estableciese un gobierno de tal naturaleza.

Si los tribunales ponen en Hbertad, bajo fianza, a los que atentan contra la seguridad del Estado, a pesar de la suspension del habects corpus, entonces, para afrontar la situacion, el Poder Ejecutivo no acusaria a los detenidos ante los tribunales: los detendria indefinidamente por su propia cuenta. Aun mas, detendria a cualquier ciudadano; entonces hasta los inocentes estarian en peligro. Los tribunales no tendrian oportunidad de absolver a los inocentes. Esto seria el reinado de la fuerza y no de la ley. Y eao es precisamente lo que quiere evitar el Poder Ejecutivo al poner a disposicion de los tribunales a los detenidos por rebelion. Los que pretenden velar por los derechos individuales, alucinados por el oropel de la decantada libertad, son los que, tal vez sin quererlo, estan fomentando el establecimiento de un regimen al estilo Nazi, la ereccion del Poder Ejecutivo en un despota.

Tal como se desarrollan los acontecimientos, el Poder Ejecutivo entrega los detenidos a los tribunales de justicia para que puedan ser juzgados cuanto antes; si son culpables que se les condene, pero si son inocentes, que les absuelva. No es esto un ordenado proceso legal y constitucional? Por que obligar de una rnanera indirecta al Poder Ejecutivo a detener indefinidamente a los acusados de rebelion sin colocarlos bajo la jurisdiccion de los tribunales? Es mejor que continue acusandolos ante los tribunales para que puedan ser juzgados prontamente. Es indispensable que los dos poderes, Ejecutivo y Judicial, actuen al unisono cuando la seguridad publica lo requiere.

Si la suspension del privilegio de habeas corpus es infundada y arbitraria, que lo declare asi este Tribunal; que declare nula la suspension. Pero si los acontecimientog aconsejan la medida por necesaria e indispensable, que los detenidos permanezcan detenidos hasta que hayan sido absueltos en sentencia judicial.

Voto por la denegacion de las solicitudes en las causas Nos. L-4855 y L-4964 y por que se declare nula y de ningun valor la orden del Hon. Juez Abaya del 12 de
septiembre de 1951, concediendo libertad bajo fianza a 3os acusados.

---

^[1] 76 Phil., 630 and 756.

^[2] 75 Phil., 634.

^[3] 75 Phil., 109.

BENGZON, J. (in L-4964)

I fully agree to the views of the Chief Justice.

This case (like the other cases of Jose M. Nava et al., vs. Hon. Magno Gatmaitan, G. R. No. L-4-855 and Eugenio Angeles vs. Hon. Gavino S. Abaya, G. R. No. L-5102) involves the question whether the presidential proclamation suspending the privilege of the writ of habeas corpus for persons detained for rebellion or insurrection has equally suspended their right to bail after the information has been filed against them.

For purposes of discussion of this central issue I will assume that the information against Hernandez describes the crime of rebellion only, unattended by other crimes that make the offense a capital one. At the end of this opinion I shall explain my vote as to the disposition of petitioner's cause, the charge against him being rebellion with multiple murder, arsons and robberies.

Now inasmuch as the information does not describe a capital offense, (rebellion is punished with prision mayor) the prisoner is entitled, as a matter of right, to bail. This privilege is vouchsafed to him by the Constitution and the Rules of Court.

But it is alleged that the Executive proclamation suspending the privilege of the writ of habeas corpus had the effect of suspending the right to bail of all persons charged before the courts with crime of rebellion. I do not think so. What the proclamation suspended was the privilege of the writ not the right to bail.

The writ of habeas corpus is of immemorial antiquity. Originally there were several forms of the writ: (1) habeas corpus ad respondendum (2) ad satisfaciendum (3) ad prosequendum, testificandum, deliberandum (4) ad faciendum et recipiendum and (5) the great writ of habeas corpus ad subjiciendum. (Blackstone's Commentaries (Jones) p. 1676). The writ mentioned in the U. S.

Constitution is the writ ad subjiciendum. The American colonists brought it with them. (Ex parte Yerger 8. Wall [75 U. S.] 85 at p. 95.) And undoubtedly that is the same writ contemplated in our fundamental laws, the Philippine Bill, the Jones Law and the Philippine Consti tution. It is an order issued by the court directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention, * * * to do, submit, to and ., I receive whatsoever the judge or court shall consider in that behalf. (Blackstone [Jones] p. 1676).

Marshall (in Ex parte Watkins 3 Pet. 193) explained the character of the writ as "a highly prerogative writ ; known to the common law, the great object of which is the liberation of those who may be imprisoned without sufficient cause. It is in the nature of a writ of error, to examine the legality of the Commitment."

Habeas Corpus. Este auto es una orden de producir, es decir, de presentar el cuerpo del detenido (habeas corpus, have the body) ante el Tribunal, para que este determine sobre la validez del arresto. Encyclopedia Juridica Espanola Tomo XVII, p. 406.

From the above descriptions and many others of the general nature of the writ, I deduce that when by Executive proclamation the privilege of the writ of habeas corpus is suspended, the Judiciary is thereby prevented from interfering with the Executive doings by inquiring into the legality of the detention of prisoners held by the Executive Department for rebellion or insurrection.

Here Hernandez does not ask for a writ of habeas corpus to inquire into the legality of his detention. No need for such inquiry because he is now detained by a judicial warrant of arrest. The Court knows the reason for the detention. Hernandez assumes for the moment the legality of the restraint; but he files a motion, in the case initiated against him (Criminal Case No. 15841) that he be allowed to go on bail. He did not petition for habeas corpus.

In this Court he is not asking for habeas corpus, he pleads for mandamus and/or certiorari. The cases decided by this Court show that his request should be granted.

Mandamus: Sy Guan vs. Amparo,^[1] 45 Off. Gaz., 2447. Certiorari: Ocampo vs. Bernabe,^[2] 43 Off. Gaz., 1632. Certiorari and Mandamus: Teehankee vs. Rovira,^[3] 42 Off. Gaz., 717.

For one thing the Constitution does not provide that all accused persons shall be bailable except in capital offenses when the evidence of guilt is strong or when the President has suspended the writ of habeas corpus.

The proclamation of the Chief Executive did not have the effect of depriving the Courts of their normal powers or jurisdiction. It merely curtailed their privilege to issue the writ of habeas corpus at the request or on behalf of prisoners held for rebellion or insurrection. The proclamation did not suspend all the constitutional rights of such prisoners. Only the right to habeas corpus. Needless to say, martial rule has' not been established, luckily for all.

The English themselves, from whom Americans inherited the practice of the suspension, believe that the so-called "suspension of the Habeas Corpus Act" "is not in reality more than suspension of one particular remedy for the protection of personal freedom." (Ennyc Britanica, Habeas corpus)

Other remedies remain intact. The petition to go on bail is one of them. Pertinent excerpts from American decisions confirm this trend of thought.

1. "The illustrious men who framed that instrument (Constitution) limited the suspension to one great right, and left the rest to remain forever inviolable." Ex parte Miligan, 18 U. S. (Law Ed.) 281, 297.
   
   
2. "This clause (suspension of the writ) refers only to the writ of habeas corpus ad subjiciendum when a person stands committed or detained as a prisoner for a crime, and does not include the other writ?'. This involved a construction of a similar clause in the constitution of the Confederate states. "On so grave a subject every word used must be supposed to have some import; and every word used in this clause does import that the power of suspension has reference only to the writ applicable in the case of persons imprisoned for crime. "The privilege." When one is committed to wait his trial for a crime, it is a privilege to be allowed a writ whereby the legality of his arrest may be inquired of, and he may be discharged or admitted to bail. But when one who has not committed and is not supposed to have committed a criminal offense is wrongfully restrained of his liberty, that he should be allowed to institute a civil suit to be relieved from the confinement is a right which every state is bound to secure at all times to its citizens; and these words must import that the power of suspension refers only to the former class of cases, otherwise no meaning can be attached to them." Matter of Cain, 1864, 2 Winst. L, N.C., 145. (Note, United States Code Annotated, Constitution Vol. I p. 747.)
   
   
3. "The suspension of the writ of habeas corpus does not legalize a wrongful arrest and imprisonment; it only deprives the party thus arrested of the means of procuring his liberty, but does not exempt the" person making the illegal arrest from liability to damages, in a civil prosecution." Griffin vs. Wilcox, 1863,21 Ind. 732, (Note, United States Code Annotated, Constitution Vol. I p. 748.)
   
   
4. "The suspension merely disturbed 'one of the safeguards of civil liberty.'" (Sinclair vs. Hiatt 86 Fed. Supp. 828)

It is contended that because habeas corpus is one of the remedies^[1] to obtain personal freedom thru bail after the information has been presented, the suspension of the writ, suspended the right to bail. The answer is that the proclamation suspended only that particular remedy (habeas corpus) to obtain personal freedom. Not the other remedies to secure bail. It is pretended that the suspension of the writ also suspended the right of the prisoners to defend themselves, to present witnesses, to face the accusers etc. because these rights would be ways to obtain their freedom?

An illustration will serve to emphasize the point. Hernandez like all accused persons, is entitled to speedy trial. If the prosecution or the court should unreasonably delay his trial, he may resort either to mandamus, or habeas corpus (Conde vs. Rivera, 45 Phil., 650; Mercado vs. Santos, 66 Phil., 215). Now, simply because the writ of habeas corpus (one of his remedies) has been suspended, would it be reasonable to hold that Hernandez has also lost the right to speedy trial, and that he may not enforce such right by mandamus? Quod erat demostrandum. Suspension of one of two remedies does not suspend the other.

Another example: Suppose after trial, Hernandez is sentenced to life imprisonment, although the Penal Code punishes rebellion with prision mayor (I assume he is charged with rebellion only). Obviously that would be plain error, which Hernandez may rectify either by habeas corpus (Cruz vs. Director of Prisons, 17 Phil., 269) or by an ordinary appeal to this Court. Will anybody contend that simply because the writ has been suspended, Hernandez may not apply to this court for correction of the decision, thru an ordinary appeal?

It is urged that bail should not be allowed those charged with rebellion, because the moment they are released they will rejoin the dissidents and resume their destructive activities against the established government organizations. But as long as the Legislature has not deemed it proper to make rebellion a capital offense, we do not see how courts may refuse bail consistently with the constitutional precept that "All persons shall before conviction be bailable by sufficient sureties, "except those charged with capital offenses when evidence of guilt is strong."

And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of this Government's adherence to the principles of the Constitution together with an impartial application thereof to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that their comrades now under custody are being railroaded into Muntinlupa^[2], without benefit of those fundamental privileges which the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, "the Courts will favor personal liberty" (Ex parte Burford 3 Cranch [7 U. S.] Law. Ed. Book 2 at p. 495).

Under normal conditions when no suspension has been decreed a person under detention may ask for a writ of habeas corpus to inquire into the legality of the restraint. If the court finds that he is illegally detained, it will order his release. If the court finds that he is legally held for a crime which is bailable, the court may permit him to go on bail.

When normalcy is disturbed and the Executive decrees a suspension of .the writ he thereby erects, so to speak, a fence around those detained for rebellion or insurrection, a fence which the judiciary may not penetrate by the writ of habeas corpus. The Executive thereby practically tells the judiciary: "Please do not meddle with these prisoners. I am holding them for investigation or for purposes of quelling the rebellion." So long as the proclamation subsists, just so long will the Courts keep away in obedience to Constitutional inhibition. But when the Executive, thru the fiscals, files an information and requests the Courts to punish a particular rebel, the reason for non-interference ceases, because he thereby takes the prisoner out of the fenced premises and brings him into the Temple of Justice for trial and punishment. Thereby he sets in motion a train of consequences resulting from the rituals of the Temple: the principles regulating criminal procedure, e.g., proceedings to obtain bail or to enforce other rights of the prisoner at the bar. Indeed it would be preposterous and paradoxical for the Executive in so presenting the detainee expressly to stipulate, "Here is the prisoner, judge him; but you may not release him from confinement."

I admit that by virtue of the Presidential proclamation, persons detained for rebellion against whom no information has been filed may not ask for bail. The admission must be made because, under the rules, they may obtain bail only by inquiring into the cause of detention i.e., by the writ of habeas corpus, which is in abeyance. Sublata causa tollitur effectus.

But once the information is formulated, the circumstances change. The accused may ask bail by mere motion in the case not necessarily by habeas corpus proceedings. The suspension order does not preclude that motion it only bars the remedy of habeas corpus. The suspension paralyzed one of the means to obtain freedom it could not extinguish the ultimate objective. And if his motion is denied where he is charged merely with rebellion he will be entitled to mandamus to compel the judge to grant bail.^[3] If he is booked for a capital offense and the court, refusing to exercise its discretion to determine whether the evidence is strong or not, flatly denies bail invoking the suspension, mandamus will lie to compel the judge to exercise his discretion to determine whether or not the evidence is strong and act accordingly.^[4] However if such court, exercises its discretion, but without any proof denies bail declaring that the evidence is strong or makes no finding on that point certiorari will surely ba available to redress judicial abuse of discretion.^[5]

The storm center of these litigations has been represented as a clash between individual liberty and governmental security. A third aspect should not be overlooked: Curtailment of the power of adjudication.

Fundamentally the three great branches of the Government are independent, and none may encroach upon territory of the other except in those few instances specially allowed by the Constitutional structure. It should follow as a matter of judicial dialectics that when the line of separation projects into the other's domain, and alternative choices are equally available, the part of wisdom is to follow the course that, deflecting the angle of deviation, reduces the encroachment to a minimum consistent with the intention of the framers of the Constitution. Now, the suspension of the writ undeniably effects a temporary invasion of normal judicial territory; yet it is authorized by the Constitution for reasons of paramount necessity. The methaphorical "fence" previously mentioned is constructed on judicial realm. Therefore the Courts, in loyalty to the original apportionment, and the basic theories of republican institutions, should not enlarge its area by approving the extension ably but erroneously sponsored by the prosecution. Logical should be the view that when the Executive submitted the information, he invited the Court to look into the case of the accused here, and thereby waived the suspension of the writ, opening the fictional fence, in so far as this particular detainee is concerned. Unless it could be pretended^[6] that after this detainee is acquitted by the Court of the charges of rebellion, the Executive may still legally detain him, keep him within the enclosure, on the pretext that the remedy of habeas corpus is not available to secure his release from custody.

I have heretofore mentioned two alternatives equally available. In thus describing the situation I have favored the opposing school of thought. For in truth the competing theories are not of equal validity. The one maintains that the right to bail has been impliedly suspended with the suspension of the writ; whereas the other asserts that the right to bail is expressly guaranteed by the Constitution, not only as individual privilege but also as judicial prerogative. Express guarantee versus implied derogation. Considering that repeals by implication are never favored, the choice offers no doubt: the desired advantage to the prosecution should not outbalance the right of the prisoner nor the powers of the Court.

Nevertheless the conflicting propositions may be, and are, coordinated and reconciled in the manner herein advocated: bail before the information is filed has been suspended; after the information is filed, the right to bail emerges in full force and effect.

Before concluding I wish to touch upon the argument that although the only exception expressly mentioned to the right to bail is "when the offense is capital and the evidence of guilt is strong" another implied exception should be "when the writ of habeas corpus is suspended." By its effect section 1(14) of Article III (about suspension) appears to be an exception to section 1(16) (right to bail) of same Article III. But a little reflection will show that the paragraph about suspension is complete in itself, containing the general rule and the exception: the general rule being "no suspension of the writ" and the exception, "cases of invasion" etc. Consequently it may not be deemed as an exception to another paragraph, specially because it relates to procedure whereas the paragraph about bail is a substantive right. And this paragraph about bail is complete in itself, with the general rule and one exception. By the way, "an express exception excludes others." In re Estate of Enriquez 29 Phil., 167. (See also Chartered Bank vs. Imperial 48 Phil, 931.)

My vote in this case:

Amado V. Hernandez is actually charged with rebellion with multiple murder, arsons and robberies. That is a capital offense. But he is entitled to bail just the same unless the evidence of his guilt is strong. The lower court received no evidence, in the belief that the proclamation suspended bail. The error is plain and the right of petitioner to bail should be upheld. The respondent judge should therefore" be directed to receive evidence for the People and then, determining whether it is strong or not, should deny or grant bail accordingly. Needless to say, the burden of proof lies on the prosecution. (Moran Comments 3d. Vol. II, p. 676)

Bengzon, J. (in L-4855) :

In view of my opinion in Amado V. Hernandez vs. Hon. Agustin P. Montesa G. R. No. L^964 I vote that the respondent judge be required to hear the evidence for the prosecution and act accordingly. What I said about Hernandez right to bail applies equally to the rights of herein petitioners.

---