Republic of the Philippines keeper or duly authorized representative of such establishments to

SUPREME COURT lease any room or portion thereof more than twice every 24 hours,
Manila runs counter to the due process guaranty for lack of certainty and for
EN BANC its unreasonable, arbitrary and oppressive character; and that
G.R. No. L-24693 July 31, 1967 insofar as the penalty provided for in Section 4 of the challenged
ERMITA-MALATE HOTEL AND MOTEL OPERATORS ordinance for a subsequent conviction would, cause the automatic
ASSOCIATION, INC., HOTEL DEL MAR INC. and GO cancellation of the license of the offended party, in effect causing the
CHIU, petitioners-appellees, destruction of the business and loss of its investments, there is once
vs. again a transgression of the due process clause.
THE HONORABLE CITY MAYOR OF MANILA, respondent- There was a plea for the issuance of preliminary injunction and for a
appellant. final judgment declaring the above ordinance null and void and
VICTOR ALABANZA, intervenor-appellee. unenforceable. The lower court on July 6, 1963 issued a writ of
Panganiban, Abad and Associates Law Office for respondent- preliminary injunction ordering respondent Mayor to refrain from
appellant. enforcing said Ordinance No. 4760 from and after July 8, 1963.
J. M. Aruego, Tenchavez and Associates for intervenor-appellee. In the a answer filed on August 3, 1963, there was an admission of
FERNANDO, J.: the personal circumstances regarding the respondent Mayor and of
The principal question in this appeal from a judgment of the lower the fact that petitioners are licensed to engage in the hotel or motel
court in an action for prohibition is whether Ordinance No. 4760 of business in the City of Manila, of the provisions of the cited
the City of Manila is violative of the due process clause. The lower Ordinance but a denial of its alleged nullity, whether on statutory or
court held that it is and adjudged it "unconstitutional, and, therefore, constitutional grounds. After setting forth that the petition did fail to
null and void." For reasons to be more specifically set forth, such state a cause of action and that the challenged ordinance bears a
judgment must be reversed, there being a failure of the requisite reasonable relation, to a proper purpose, which is to curb immorality,
showing to sustain an attack against its validity. a valid and proper exercise of the police power and that only the
The petition for prohibition against Ordinance No. 4760 was filed on guests or customers not before the court could complain of the
July 5, 1963 by the petitioners, Ermita-Malate Hotel and Motel alleged invasion of the right to privacy and the guaranty against self
Operators Association, one of its members, Hotel del Mar Inc., and a incrimination, with the assertion that the issuance of the preliminary
certain Go Chiu, who is "the president and general manager of the injunction ex parte was contrary to law, respondent Mayor prayed
second petitioner" against the respondent Mayor of the City of for, its dissolution and the dismissal of the petition.
Manila who was sued in his capacity as such "charged with the Instead of evidence being offered by both parties, there was
general power and duty to enforce ordinances of the City of Manila submitted a stipulation of facts dated September 28, 1964, which
and to give the necessary orders for the faithful execution and reads:
enforcement of such ordinances." (par. 1). It was alleged that the 1. That the petitioners Ermita-Malate Hotel and Motel
petitioner non-stock corporation is dedicated to the promotion and Operators Association, Inc. and Hotel del Mar Inc. are duly
protection of the interest of its eighteen (18) members "operating organized and existing under the laws of the Philippines,
hotels and motels, characterized as legitimate businesses duly both with offices in the City of Manila, while the petitioner
licensed by both national and city authorities, regularly paying taxes, Go Chin is the president and general manager of Hotel del
employing and giving livelihood to not less than 2,500 person and Mar Inc., and the intervenor Victor Alabanza is a resident
representing an investment of more than P3 million."1 (par. 2). It was of Baguio City, all having the capacity to sue and be sued;
then alleged that on June 13, 1963, the Municipal Board of the City 2. That the respondent Mayor is the duly elected and
of Manila enacted Ordinance No. 4760, approved on June 14, 1963 incumbent City Mayor and chief executive of the City of
by the then Vice-Mayor Herminio Astorga, who was at the time Manila charged with the general power and duty to
acting as Mayor of the City of Manila. (par. 3). enforce ordinances of the City of Manila and to give the
After which the alleged grievances against the ordinance were set necessary orders for the faithful execution and
forth in detail. There was the assertion of its being beyond the enforcement of such ordinances;
powers of the Municipal Board of the City of Manila to enact insofar 3. That the petitioners are duly licensed to engage in the
as it would regulate motels, on the ground that in the revised charter business of operating hotels and motels in Malate and
of the City of Manila or in any other law, no reference is made to Ermita districts in Manila;
motels; that Section 1 of the challenged ordinance is unconstitutional 4. That on June 13, 1963, the Municipal Board of the City
and void for being unreasonable and violative of due process insofar of Manila enacted Ordinance No. 4760, which was
as it would impose P6,000.00 fee per annum for first class motels approved on June 14, 1963, by Vice-Mayor Herminio
and P4,500.00 for second class motels; that the provision in the Astorga, then the acting City Mayor of Manila, in the
same section which would require the owner, manager, keeper or absence of the respondent regular City Mayor, amending
duly authorized representative of a hotel, motel, or lodging house to sections 661, 662, 668-a, 668-b and 669 of the
refrain from entertaining or accepting any guest or customer or compilation of the ordinances of the City of Manila besides
letting any room or other quarter to any person or persons without inserting therein three new sections. This ordinance is
his filling up the prescribed form in a lobby open to public view at all similar to the one vetoed by the respondent Mayor (Annex
times and in his presence, wherein the surname, given name and A) for the reasons stated in its 4th Indorsement dated
middle name, the date of birth, the address, the occupation, the sex, February 15, 1963 (Annex B);
the nationality, the length of stay and the number of companions in 5. That the explanatory note signed by then Councilor Herminio
the room, if any, with the name, relationship, age and sex would be Astorga was submitted with the proposed ordinance (now Ordinance
specified, with data furnished as to his residence certificate as well 4760) to the Municipal Board, copy of which is attached hereto as
as his passport number, if any, coupled with a certification that a Annex C;
person signing such form has personally filled it up and affixed his 6. That the City of Manila derived in 1963 an annual
signature in the presence of such owner, manager, keeper or duly income of P101,904.05 from license fees paid by the 105
authorized representative, with such registration forms and records hotels and motels (including herein petitioners) operating
kept and bound together, it also being provided that the premises in the City of Manila.1äwphï1.ñët
and facilities of such hotels, motels and lodging houses would be Thereafter came a memorandum for respondent on January 22,
open for inspection either by the City Mayor, or the Chief of Police, 1965, wherein stress was laid on the presumption of the validity of
or their duly authorized representatives is unconstitutional and void the challenged ordinance, the burden of showing its lack of
again on due process grounds, not only for being arbitrary, conformity to the Constitution resting on the party who assails it,
unreasonable or oppressive but also for being vague, indefinite and citing not only U.S. v. Salaveria, but likewise applicable American
uncertain, and likewise for the alleged invasion of the right to privacy authorities. Such a memorandum likewise refuted point by point the
and the guaranty against self-incrimination; that Section 2 of the arguments advanced by petitioners against its validity. Then barely
challenged ordinance classifying motels into two classes and two weeks later, on February 4, 1965, the memorandum for
requiring the maintenance of certain minimum facilities in first class petitioners was filed reiterating in detail what was set forth in the
motels such as a telephone in each room, a dining room or, petition, with citations of what they considered to be applicable
restaurant and laundry similarly offends against the due process American authorities and praying for a judgment declaring the
clause for being arbitrary, unreasonable and oppressive, a challenged ordinance "null and void and unenforceable" and making
conclusion which applies to the portion of the ordinance requiring permanent the writ of preliminary injunction issued.
second class motels to have a dining room; that the provision of After referring to the motels and hotels, which are members of the
Section 2 of the challenged ordinance prohibiting a person less than petitioners association, and referring to the alleged constitutional
18 years old from being accepted in such hotels, motels, lodging questions raised by the party, the lower court observed: "The only
houses, tavern or common inn unless accompanied by parents or a remaining issue here being purely a question of law, the parties, with
lawful guardian and making it unlawful for the owner, manager, the nod of the Court, agreed to file memoranda and thereafter, to
submit the case for decision of the Court." It does appear obvious purpose other than legal" and at the same time, to increase "the
then that without any evidence submitted by the parties, the decision income of the city government." It would appear therefore that the
passed upon the alleged infirmity on constitutional grounds of the stipulation of facts, far from sustaining any attack against the validity
challenged ordinance, dismissing as is undoubtedly right and proper of the ordinance, argues eloquently for it.
the untenable objection on the alleged lack of authority of the City of It is a fact worth noting that this Court has invariably stamped with
Manila to regulate motels, and came to the conclusion that "the the seal of its approval, ordinances punishing vagrancy and
challenged Ordinance No. 4760 of the City of Manila, would be classifying a pimp or procurer as a vagrant;8 provide a license tax for
unconstitutional and, therefore, null and void." It made permanent and regulating the maintenance or operation of public dance
the preliminary injunction issued against respondent Mayor and his halls;9 prohibiting gambling;10 prohibiting jueteng;11 and
agents "to restrain him from enforcing the ordinance in question." monte;12 prohibiting playing of panguingui on days other than
Hence this appeal. Sundays or legal holidays;13 prohibiting the operation of pinball
As noted at the outset, the judgment must be reversed. A decent machines;14 and prohibiting any person from keeping, conducting or
regard for constitutional doctrines of a fundamental character ought maintaining an opium joint or visiting a place where opium is smoked
to have admonished the lower court against such a sweeping or otherwise used,15 all of which are intended to protect public
condemnation of the challenged ordinance. Its decision cannot be morals.
allowed to stand, consistently with what has hitherto been the On the legislative organs of the government, whether national or
accepted standards of constitutional adjudication, in both procedural local, primarily rest the exercise of the police power, which, it cannot
and substantive aspects. be too often emphasized, is the power to prescribe regulations to
Primarily what calls for a reversal of such a decision is the absence promote the health, morals, peace, good order, safety and general
of any evidence to offset the presumption of validity that attaches to welfare of the people. In view of the requirements of due process,
a challenged statute or ordinance. As was expressed categorically equal protection and other applicable constitutional guaranties
by Justice Malcolm: "The presumption is all in favor of validity x x x . however, the exercise of such police power insofar as it may affect
The action of the elected representatives of the people cannot be the life, liberty or property of any person is subject to judicial inquiry.
lightly set aside. The councilors must, in the very nature of things, be Where such exercise of police power may be considered as either
familiar with the necessities of their particular municipality and with capricious, whimsical, unjust or unreasonable, a denial of due
all the facts and circumstances which surround the subject and process or a violation of any other applicable constitutional guaranty
necessitate action. The local legislative body, by enacting the may call for correction by the courts.
ordinance, has in effect given notice that the regulations are We are thus led to considering the insistent, almost shrill tone, in
essential to the well being of the people x x x . The Judiciary should which the objection is raised to the question of due process.16 There
not lightly set aside legislative action when there is not a clear is no controlling and precise definition of due process. It furnishes
invasion of personal or property rights under the guise of police though a standard to which the governmental action should conform
regulation.2 in order that deprivation of life, liberty or property, in each
It admits of no doubt therefore that there being a presumption of appropriate case, be valid. What then is the standard of due process
validity, the necessity for evidence to rebut it is unavoidable, unless which must exist both as a procedural and a substantive requisite to
the statute or ordinance is void on its face which is not the case free the challenged ordinance, or any governmental action for that
here. The principle has been nowhere better expressed than in the matter, from the imputation of legal infirmity sufficient to spell its
leading case of O'Gorman & Young v. Hartford Fire Insurance doom? It is responsiveness to the supremacy of reason, obedience
Co.,3 where the American Supreme Court through Justice Brandeis to the dictates of justice. Negatively put, arbitrariness is ruled out
tersely and succinctly summed up the matter thus: The statute here and unfairness avoided. To satisfy the due process requirement,
questioned deals with a subject clearly within the scope of the police official action, to paraphrase Cardozo, must not outrun the bounds of
power. We are asked to declare it void on the ground that the reason and result in sheer oppression. Due process is thus hostile to
specific method of regulation prescribed is unreasonable and hence any official action marred by lack of reasonableness. Correctly it has
deprives the plaintiff of due process of law. As underlying questions been identified as freedom from arbitrariness. It is the embodiment
of fact may condition the constitutionality of legislation of this of the sporting idea of fair play.17 It exacts fealty "to those strivings
character, the resumption of constitutionality must prevail in the for justice" and judges the act of officialdom of whatever branch "in
absence of some factual foundation of record for overthrowing the the light of reason drawn from considerations of fairness that reflect
statute." No such factual foundation being laid in the present case, [democratic] traditions of legal and political thought."18 It is not a
the lower court deciding the matter on the pleadings and the narrow or "technical conception with fixed content unrelated to time,
stipulation of facts, the presumption of validity must prevail and the place and circumstances,"19 decisions based on such a clause
judgment against the ordinance set aside. requiring a "close and perceptive inquiry into fundamental principles
Nor may petitioners assert with plausibility that on its face the of our society."20 Questions of due process are not to be treated
ordinance is fatally defective as being repugnant to the due process narrowly or pedantically in slavery to form or phrases.21
clause of the Constitution. The mantle of protection associated with It would thus be an affront to reason to stigmatize an ordinance
the due process guaranty does not cover petitioners. This particular enacted precisely to meet what a municipal lawmaking body
manifestation of a police power measure being specifically aimed to considers an evil of rather serious proportion an arbitrary and
safeguard public morals is immune from such imputation of nullity capricious exercise of authority. It would seem that what should be
resting purely on conjecture and unsupported by anything of deemed unreasonable and what would amount to an abdication of
substance. To hold otherwise would be to unduly restrict and narrow the power to govern is inaction in the face of an admitted
the scope of police power which has been properly characterized as deterioration of the state of public morals. To be more specific, the
the most essential, insistent and the least limitable of Municipal Board of the City of Manila felt the need for a remedial
powers,4 extending as it does "to all the great public needs."5 It measure. It provided it with the enactment of the challenged
would be, to paraphrase another leading decision, to destroy the ordinance. A strong case must be found in the records, and, as has
very purpose of the state if it could be deprived or allowed itself to be been set forth, none is even attempted here to attach to an
deprived of its competence to promote public health, public morals, ordinance of such character the taint of nullity for an alleged failure
public safety and the genera welfare.6 Negatively put, police power is to meet the due process requirement. Nor does it lend any
"that inherent and plenary power in the State which enables it to semblance even of deceptive plausibility to petitioners' indictment of
prohibit all that is hurt full to the comfort, safety, and welfare of Ordinance No. 4760 on due process grounds to single out such
society.7 features as the increased fees for motels and hotels, the curtailment
There is no question but that the challenged ordinance was precisely of the area of freedom to contract, and, in certain particulars, its
enacted to minimize certain practices hurtful to public morals. The alleged vagueness.
explanatory note of the Councilor Herminio Astorga included as Admittedly there was a decided increase of the annual license fees
annex to the stipulation of facts, speaks of the alarming increase in provided for by the challenged ordinance for hotels and motels,
the rate of prostitution, adultery and fornication in Manila traceable in 150% for the former and over 200% for the latter, first-class motels
great part to the existence of motels, which "provide a necessary being required to pay a P6,000 annual fee and second-class motels,
atmosphere for clandestine entry, presence and exit" and thus P4,500 yearly. It has been the settled law however, as far back as
become the "ideal haven for prostitutes and thrill-seekers." The 1922 that municipal license fees could be classified into those
challenged ordinance then proposes to check the clandestine imposed for regulating occupations or regular enterprises, for the
harboring of transients and guests of these establishments by regulation or restriction of non-useful occupations or enterprises and
requiring these transients and guests to fill up a registration form, for revenue purposes only.22 As was explained more in detail in the
prepared for the purpose, in a lobby open to public view at all times, above Cu Unjieng case: (2) Licenses for non-useful occupations are
and by introducing several other amendatory provisions calculated to also incidental to the police power and the right to exact a fee may
shatter the privacy that characterizes the registration of transients be implied from the power to license and regulate, but in fixing
and guests." Moreover, the increase in the licensed fees was amount of the license fees the municipal corporations are allowed a
intended to discourage "establishments of the kind from operating for much wider discretion in this class of cases than in the former, and
aside from applying the well-known legal principle that municipal principle. The policy of laissez faire has to some extent given way to
ordinances must not be unreasonable, oppressive, or tyrannical, the assumption by the government of the right of intervention even in
courts have, as a general rule, declined to interfere with such contractual relations affected with public interest.31 What may be
discretion. The desirability of imposing restraint upon the number of stressed sufficiently is that if the liberty involved were freedom of the
persons who might otherwise engage in non-useful enterprises is, of mind or the person, the standard for the validity of governmental acts
course, generally an important factor in the determination of the is much more rigorous and exacting, but where the liberty curtailed
amount of this kind of license fee. Hence license fees clearly in the affects at the most rights of property, the permissible scope of
nature of privilege taxes for revenue have frequently been upheld, regulatory measure is wider.32 How justify then the allegation of a
especially in of licenses for the sale of liquors. In fact, in the latter denial of due process?
cases the fees have rarely been declared unreasonable.23 Lastly, there is the attempt to impugn the ordinance on another due
Moreover in the equally leading case of Lutz v. Araneta24 this Court process ground by invoking the principles of vagueness or
affirmed the doctrine earlier announced by the American Supreme uncertainty. It would appear from a recital in the petition itself that
Court that taxation may be made to implement the state's police what seems to be the gravamen of the alleged grievance is that the
power. Only the other day, this Court had occasion to affirm that the provisions are too detailed and specific rather than vague or
broad taxing authority conferred by the Local Autonomy Act of 1959 uncertain. Petitioners, however, point to the requirement that a guest
to cities and municipalities is sufficiently plenary to cover a wide should give the name, relationship, age and sex of the companion or
range of subjects with the only limitation that the tax so levied is for companions as indefinite and uncertain in view of the necessity for
public purposes, just and uniform.25 determining whether the companion or companions referred to are
As a matter of fact, even without reference to the wide latitude those arriving with the customer or guest at the time of the registry or
enjoyed by the City of Manila in imposing licenses for revenue, it has entering the room With him at about the same time or coming at any
been explicitly held in one case that "much discretion is given to indefinite time later to join him; a proviso in one of its sections which
municipal corporations in determining the amount," here the license cast doubt as to whether the maintenance of a restaurant in a motel
fee of the operator of a massage clinic, even if it were viewed purely is dependent upon the discretion of its owners or operators; another
as a police power measure.26 The discussion of this particular matter proviso which from their standpoint would require a guess as to
may fitly close with this pertinent citation from another decision of whether the "full rate of payment" to be charged for every such lease
significance: "It is urged on behalf of the plaintiffs-appellees that the thereof means a full day's or merely a half-day's rate. It may be
enforcement of the ordinance could deprive them of their lawful asked, do these allegations suffice to render the ordinance void on
occupation and means of livelihood because they can not rent stalls its face for alleged vagueness or uncertainty? To ask the question is
in the public markets. But it appears that plaintiffs are also dealers in to answer it. From Connally v. General Construction
refrigerated or cold storage meat, the sale of which outside the city Co.33 to Adderley v. Florida,34 the principle has been consistently
markets under certain conditions is permitted x x x . And surely, the upheld that what makes a statute susceptible to such a charge is an
mere fact, that some individuals in the community may be deprived enactment either forbidding or requiring the doing of an act that men
of their present business or a particular mode of earning a living of common intelligence must necessarily guess at its meaning and
cannot prevent the exercise of the police power. As was said in a differ as to its application. Is this the situation before us? A citation
case, persons licensed to pursue occupations which may in the from Justice Holmes would prove illuminating: "We agree to all the
public need and interest be affected by the exercise of the police generalities about not supplying criminal laws with what they omit
power embark in these occupations subject to the disadvantages but there is no canon against using common sense in construing
which may result from the legal exercise of that power."27 laws as saying what they obviously mean."35
Nor does the restriction on the freedom to contract, insofar as the That is all then that this case presents. As it stands, with all due
challenged ordinance makes it unlawful for the owner, manager, allowance for the arguments pressed with such vigor and
keeper or duly authorized representative of any hotel, motel, lodging determination, the attack against the validity of the challenged
house, tavern, common inn or the like, to lease or rent room or ordinance cannot be considered a success. Far from it. Respect for
portion thereof more than twice every 24 hours, with a proviso that in constitutional law principles so uniformly held and so uninterruptedly
all cases full payment shall be charged, call for a different adhered to by this Court compels a reversal of the appealed
conclusion. Again, such a limitation cannot be viewed as a decision.
transgression against the command of due process. It is neither Wherefore, the judgment of the lower court is reversed and the
unreasonable nor arbitrary. Precisely it was intended to curb the injunction issued lifted forthwith. With costs.
opportunity for the immoral or illegitimate use to which such
premises could be, and, according to the explanatory note, are being
devoted. How could it then be arbitrary or oppressive when there
appears a correspondence between the undeniable existence of an
undesirable situation and the legislative attempt at correction.
Moreover, petitioners cannot be unaware that every regulation of
conduct amounts to curtailment of liberty which as pointed out by
Justice Malcolm cannot be absolute. Thus: "One thought which runs
through all these different conceptions of liberty is plainly apparent. It
is this: 'Liberty' as understood in democracies, is not license; it is
'liberty regulated by law.' Implied in the term is restraint by law for
the good of the individual and for the greater good of the peace and
order of society and the general well-being. No man can do exactly
as he pleases. Every man must renounce unbridled license. The
right of the individual is necessarily subject to reasonable restraint by
general law for the common good x x x The liberty of the citizen may
be restrained in the interest of the public health, or of the public
order and safety, or otherwise within the proper scope of the police Republic of the Philippines
power."28 SUPREME COURT
A similar observation was made by Justice Laurel: "Public welfare, Manila
then, lies at the bottom of the enactment of said law, and the state in EN BANC
order to promote the general welfare may interfere with personal G.R. No. 15574 September 17, 1919
liberty, with property, and with business and occupations. Persons SMITH, BELL & COMPANY (LTD.), petitioner,
and property may be subjected to all kinds of restraints and burdens, vs.
in order to secure the general comfort, health, and prosperity of the JOAQUIN NATIVIDAD, Collector of Customs of the port of
state x x x To this fundamental aim of our Government the rights of Cebu, respondent.
the individual are subordinated. Liberty is a blessing without which Ross and Lawrence for petitioner.
life is a misery, but liberty should not be made to prevail over Attorney-General Paredes for respondent.
authority because then society will fall into anarchy. Neither should MALCOLM, J.:
authority be made to prevail over liberty because then the individual A writ of mandamus is prayed for by Smith, Bell & Co. (Ltd.), against
will fall into slavery. The citizen should achieve the required balance Joaquin Natividad, Collector of Customs of the port of Cebu,
of liberty and authority in his mind through education and personal Philippine Islands, to compel him to issue a certificate of Philippine
discipline, so that there may be established the resultant equilibrium, registry to the petitioner for its motor vessel Bato. The Attorney-
which means peace and order and happiness for all.29 General, acting as counsel for respondent, demurs to the petition on
It is noteworthy that the only decision of this Court nullifying the general ground that it does not state facts sufficient to constitute
legislation because of undue deprivation of freedom to a cause of action. While the facts are thus admitted, and while,
contract, People v. Pomar,30 no longer "retains its virtuality as a living
moreover, the pertinent provisions of law are clear and register shall be issued for it. If the vessel is of domestic
understandable, and interpretative American jurisprudence is found ownership and of fifteen tons gross or less, the taking of
in abundance, yet the issue submitted is not lightly to be resolved. the certificate of Philippine register shall be optional with
The question, flatly presented, is, whether Act. No. 2761 of the the owner.
Philippine Legislature is valid — or, more directly stated, whether the "Domestic ownership," as used in this section, means
Government of the Philippine Islands, through its Legislature, can ownership vested in some one or more of the following
deny the registry of vessels in its coastwise trade to corporations classes of persons: (a) Citizens or native inhabitants of the
having alien stockholders. Philippine Islands; (b) citizens of the United States
FACTS. residing in the Philippine Islands; (c) any corporation or
Smith, Bell & Co., (Ltd.), is a corporation organized and existing company composed wholly of citizens of the Philippine
under the laws of the Philippine Islands. A majority of its Islands or of the United States or of both, created under
stockholders are British subjects. It is the owner of a motor vessel the laws of the United States, or of any State thereof, or of
known as the Bato built for it in the Philippine Islands in 1916, of thereof, or the managing agent or master of the vessel
more than fifteen tons gross The Bato was brought to Cebu in the resides in the Philippine Islands
present year for the purpose of transporting plaintiff's merchandise Any vessel of more than fifteen gross tons which on
between ports in the Islands. Application was made at Cebu, the February eighth, nineteen hundred and eighteen, had a
home port of the vessel, to the Collector of Customs for a certificate certificate of Philippine register under existing law, shall
of Philippine registry. The Collector refused to issue the certificate, likewise be deemed a vessel of domestic ownership so
giving as his reason that all the stockholders of Smith, Bell & Co., long as there shall not be any change in the ownership
Ltd., were not citizens either of the United States or of the Philippine thereof nor any transfer of stock of the companies or
Islands. The instant action is the result. corporations owning such vessel to person not included
LAW. under the last preceding paragraph.
The Act of Congress of April 29, 1908, repealing the Shipping Act of Sections 2 and 3 of Act No. 2761 amended sections 1176 and 1202
April 30, 1906 but reenacting a portion of section 3 of this Law, and of the Administrative Code to read as follows:
still in force, provides in its section 1: SEC. 1176. Investigation into character of vessel. — No
That until Congress shall have authorized the registry as application for a certificate of Philippine register shall be
vessels of the United States of vessels owned in the approved until the collector of customs is satisfied from an
Philippine Islands, the Government of the Philippine inspection of the vessel that it is engaged or destined to
Islands is hereby authorized to adopt, from time to time, be engaged in legitimate trade and that it is of domestic
and enforce regulations governing the transportation of ownership as such ownership is defined in section eleven
merchandise and passengers between ports or places in hundred and seventy-two of this Code.
the Philippine Archipelago. (35 Stat. at L., 70; Section The collector of customs may at any time inspect a vessel
3912, U. S. Comp Stat. [1916]; 7 Pub. Laws, 364.) or examine its owner, master, crew, or passengers in
The Act of Congress of August 29, 1916, commonly known as the order to ascertain whether the vessel is engaged in
Jones Law, still in force, provides in section 3, (first paragraph, first legitimate trade and is entitled to have or retain the
sentence), 6, 7, 8, 10, and 31, as follows. certificate of Philippine register.
SEC. 3. That no law shall be enacted in said Islands which SEC. 1202. Limiting number of foreign officers and
shall deprive any person of life, liberty, or property without engineers on board vessels. — No Philippine vessel
due process of law, or deny to any person therein the operating in the coastwise trade or on the high seas shall
equal protection of the laws. . . . be permitted to have on board more than one master or
SEC. 6. That the laws now in force in the Philippines shall one mate and one engineer who are not citizens of the
continue in force and effect, except as altered, amended, United States or of the Philippine Islands, even if they hold
or modified herein, until altered, amended, or repealed by licenses under section one thousand one hundred and
the legislative authority herein provided or by Act of ninety-nine hereof. No other person who is not a citizen of
Congress of the United States. the United States or of the Philippine Islands shall be an
SEC. 7. That the legislative authority herein provided shall officer or a member of the crew of such vessel. Any such
have power, when not inconsistent with this Act, by due vessel which fails to comply with the terms of this section
enactment to amend, alter modify, or repeal any law, civil shall be required to pay an additional tonnage tax of fifty
or criminal, continued in force by this Act as it may from centavos per net ton per month during the continuance of
time to time see fit said failure.
This power shall specifically extend with the limitation ISSUES.
herein provided as to the tariff to all laws relating to Predicated on these facts and provisions of law, the issues as above
revenue provided as to the tariff to all laws relating to stated recur, namely, whether Act No 2761 of the Philippine
revenue and taxation in effect in the Philippines. Legislature is valid in whole or in part — whether the Government of
SEC. 8. That general legislative power, except as the Philippine Islands, through its Legislature, can deny the registry
otherwise herein provided, is hereby granted to the of vessel in its coastwise trade to corporations having alien
Philippine Legislature, authorized by this Act. stockholders .
SEC. 10. That while this Act provides that the Philippine OPINION.
government shall have the authority to enact a tariff law 1. Considered from a positive standpoint, there can exist no
the trade relations between the islands and the United measure of doubt as to the power of the Philippine Legislature to
States shall continue to be governed exclusively by laws enact Act No. 2761. The Act of Congress of April 29, 1908, with its
of the Congress of the United States: Provided, That tariff specific delegation of authority to the Government of the Philippine
acts or acts amendatory to the tariff of the Philippine Islands to regulate the transportation of merchandise and
Islands shall not become law until they shall receive the passengers between ports or places therein, the liberal construction
approval of the President of the United States, nor shall given to the provisions of the Philippine Bill, the Act of Congress of
any act of the Philippine Legislature affecting immigration July 1, 1902, by the courts, and the grant by the Act of Congress of
or the currency or coinage laws of the Philippines become August 29, 1916, of general legislative power to the Philippine
a law until it has been approved by the President of the Legislature, are certainly superabundant authority for such a law.
United States: Provided further, That the President shall While the Act of the local legislature may in a way be inconsistent
approve or disapprove any act mentioned in the foregoing with the Act of Congress regulating the coasting trade of the
proviso within six months from and after its enactment and Continental United States, yet the general rule that only such laws of
submission for his approval, and if not disapproved within the United States have force in the Philippines as are expressly
such time it shall become a law the same as if it had been extended thereto, and the abnegation of power by Congress in favor
specifically approved. of the Philippine Islands would leave no starting point for convincing
SEC. 31. That all laws or parts of laws applicable to the argument. As a matter of fact, counsel for petitioner does not assail
Philippines not in conflict with any of the provisions of this legislative action from this direction (See U. S. vs. Bull [1910], 15
Act are hereby continued in force and effect." (39 Stat at Phil., 7; Sinnot vs. Davenport [1859] 22 How., 227.)
L., 546.) 2. It is from the negative, prohibitory standpoint that counsel argues
On February 23, 1918, the Philippine Legislature enacted Act No. against the constitutionality of Act No. 2761. The first paragraph of
2761. The first section of this law amended section 1172 of the the Philippine Bill of Rights of the Philippine Bill, repeated again in
Administrative Code to read as follows: the first paragraph of the Philippine Bill of Rights as set forth in the
SEC. 1172. Certificate of Philippine register. — Upon Jones Law, provides "That no law shall be enacted in said Islands
registration of a vessel of domestic ownership, and of which shall deprive any person of life, liberty, or property without due
more than fifteen tons gross, a certificate of Philippine process of law, or deny to any person therein the equal protection of
the laws." Counsel says that Act No. 2761 denies to Smith, Bell & (Bacon vs. Walker [1907], 204 U.S., 311.) For quite similar reasons,
Co., Ltd., the equal protection of the laws because it, in effect, none of the provision of the Philippine Organic Law could could have
prohibits the corporation from owning vessels, and because had the effect of denying to the Government of the Philippine
classification of corporations based on the citizenship of one or more Islands, acting through its Legislature, the right to exercise that most
of their stockholders is capricious, and that Act No. 2761 deprives essential, insistent, and illimitable of powers, the sovereign police
the corporation of its properly without due process of law because by power, in the promotion of the general welfare and the public
the passage of the law company was automatically deprived of every interest. (U. S. vs. Toribio [1910], 15 Phil., 85; Churchill and
beneficial attribute of ownership in the Bato and left with the naked Tait vs. Rafferty [1915], 32 Phil., 580; Rubi vs. Provincial Board of
title to a boat it could not use . Mindoro [1919], 39 Phil., 660.) Another notable exception permits of
The guaranties extended by the Congress of the United States to the the regulation or distribution of the public domain or the common
Philippine Islands have been used in the same sense as like property or resources of the people of the State, so that use may be
provisions found in the United States Constitution. While the "due limited to its citizens. (Ex parte Gilleti [1915], 70 Fla., 442;
process of law and equal protection of the laws" clause of the McCready vs. Virginia [1876], 94 U. S., 391;
Philippine Bill of Rights is couched in slightly different words than the Patsone vs. Commonwealth of Pennsylvania [1914], 232U. S., 138.)
corresponding clause of the Fourteenth Amendment to the United Still another exception permits of the limitation of employment in the
States Constitution, the first should be interpreted and given the construction of public works by, or for, the State or a municipality to
same force and effect as the latter. (Kepner vs. U.S. [1904], 195 U. citizens of the United States or of the State. (Atkin vs. Kansas
S., 100; Sierra vs. Mortiga [1907], 204 U. S.,.470; U. S. vs. Bull [1903],191 U. S., 207; Heim vs. McCall [1915], 239 U.S., 175;
[1910], 15 Phil., 7.) The meaning of the Fourteenth Amendment has Crane vs. New York [1915], 239 U. S., 195.) Even as to
been announced in classic decisions of the United States Supreme classification, it is admitted that a State may classify with reference
Court. Even at the expense of restating what is so well known, these to the evil to be prevented; the question is a practical one,
basic principles must again be set down in order to serve as the dependent upon experience. (Patsone vs. Commonwealth of
basis of this decision. Pennsylvania [1914], 232 U. S., 138.)
The guaranties of the Fourteenth Amendment and so of the first To justify that portion of Act no. 2761 which permits corporations or
paragraph of the Philippine Bill of Rights, are universal in their companies to obtain a certificate of Philippine registry only on
application to all person within the territorial jurisdiction, without condition that they be composed wholly of citizens of the Philippine
regard to any differences of race, color, or nationality. The word Islands or of the United States or both, as not infringing Philippine
"person" includes aliens. (Yick Wo vs. Hopkins [1886], 118 U. S., Organic Law, it must be done under some one of the exceptions
356; Truax vs. Raich [1915], 239 U. S., 33.) Private corporations, here mentioned This must be done, moreover, having particularly in
likewise, are "persons" within the scope of the guaranties in so far as mind what is so often of controlling effect in this jurisdiction — our
their property is concerned. (Santa Clara County vs. Southern Pac. local experience and our peculiar local conditions.
R. R. Co. [1886], 118.U. S., 394; Pembina Mining To recall a few facts in geography, within the confines of Philippine
Co. vs. Pennsylvania [1888],.125 U. S., 181 Covington & L. Turnpike jurisdictional limits are found more than three thousand islands.
Road Co. vs. Sandford [1896], 164 U. S., 578.) Classification with Literally, and absolutely, steamship lines are, for an Insular territory
the end in view of providing diversity of treatment may be made thus situated, the arteries of commerce. If one be severed, the life-
among corporations, but must be based upon some reasonable blood of the nation is lost. If on the other hand these arteries are
ground and not be a mere arbitrary selection (Gulf, Colorado & protected, then the security of the country and the promotion of the
Santa Fe Railway Co. vs. Ellis [1897],.165 U. S., 150.) Examples of general welfare is sustained. Time and again, with such conditions
laws held unconstitutional because of unlawful discrimination against confronting it, has the executive branch of the Government of the
aliens could be cited. Generally, these decisions relate to statutes Philippine Islands, always later with the sanction of the judicial
which had attempted arbitrarily to forbid aliens to engage in ordinary branch, taken a firm stand with reference to the presence of
kinds of business to earn their living. (State vs. Montgomery [1900], undesirable foreigners. The Government has thus assumed to act
94 Maine, 192, peddling — but see. Commonwealth vs. Hana for the all-sufficient and primitive reason of the benefit and protection
[1907], 195 Mass., 262; Templar vs. Board of Examiners of Barbers of its own citizens and of the self-preservation and integrity of its
[1902], 131 Mich., 254, barbers; Yick Wo vs. Hopkins [1886], 118 U. dominion. (In re Patterson [1902], 1 Phil., 93; Forbes vs. Chuoco,
S.,.356, discrimination against Chinese; Truax vs. Raich [1915], 239 Tiaco and Crossfield [1910], 16 Phil., 534;.228 U.S., 549; In
U. S., 33; In re Parrott [1880], 1 Fed , 481; Fraser vs. McConway & re McCulloch Dick [1918], 38 Phil., 41.) Boats owned by foreigners,
Torley Co. [1897], 82 Fed , 257; Juniata Limestone Co. vs. Fagley particularly by such solid and reputable firms as the instant claimant,
[1898], 187 Penn., 193, all relating to the employment of aliens by might indeed traverse the waters of the Philippines for ages without
private corporations.) doing any particular harm. Again, some evilminded foreigner might
A literal application of general principles to the facts before us would, very easily take advantage of such lavish hospitality to chart
of course, cause the inevitable deduction that Act No. 2761 is Philippine waters, to obtain valuable information for unfriendly
unconstitutional by reason of its denial to a corporation, some of foreign powers, to stir up insurrection, or to prejudice Filipino or
whole members are foreigners, of the equal protection of the laws. American commerce. Moreover, under the Spanish portion of
Like all beneficient propositions, deeper research discloses provisos. Philippine law, the waters within the domestic jurisdiction are
Examples of a denial of rights to aliens notwithstanding the deemed part of the national domain, open to public use. (Book II, Tit.
provisions of the Fourteenth Amendment could be cited. IV, Ch. I, Civil Code; Spanish Law of Waters of August 3, 1866, arts
(Tragesser vs. Gray [1890], 73 Md., 250, licenses to sell spirituous 1, 2, 3.) Common carriers which in the Philippines as in the United
liquors denied to persons not citizens of the United States; States and other countries are, as Lord Hale said, "affected with a
Commonwealth vs. Hana [1907], 195 Mass , 262, excluding aliens public interest," can only be permitted to use these public waters as
from the right to peddle; Patsone vs. Commonwealth of a privilege and under such conditions as to the representatives of
Pennsylvania [1914], 232 U. S. , 138, prohibiting the killing of any the people may seem wise. (See De Villata vs. Stanley [1915], 32
wild bird or animal by any unnaturalized foreign-born resident; Ex Phil., 541.)
parte Gilleti [1915], 70 Fla., 442, discriminating in favor of citizens In Patsone vs. Commonwealth of Pennsylvania ([1913], 232 U.S.,
with reference to the taking for private use of the common property 138), a case herein before mentioned, Justice Holmes delivering the
in fish and oysters found in the public waters of the State; opinion of the United States Supreme Court said:
Heim vs. McCall [1915], 239 U. S.,.175, and Crane vs. New York This statute makes it unlawful for any unnaturalized
[1915], 239 U. S., 195, limiting employment on public works by, or foreign-born resident to kill any wild bird or animal except
for, the State or a municipality to citizens of the United States.) in defense of person or property, and `to that end' makes it
One of the exceptions to the general rule, most persistent and far unlawful for such foreign-born person to own or be
reaching in influence is, that neither the Fourteenth Amendment to possessed of a shotgun or rifle; with a penalty of $25 and
the United States Constitution, broad and comprehensive as it is, nor a forfeiture of the gun or guns. The plaintiff in error was
any other amendment, "was designed to interfere with the power of found guilty and was sentenced to pay the
the State, sometimes termed its `police power,' to prescribe abovementioned fine. The judgment was affirmed on
regulations to promote the health, peace, morals, education, and successive appeals. (231 Pa., 46; 79 Atl., 928.) He brings
good order of the people, and legislate so as to increase the the case to this court on the ground that the statute is
industries of the State, develop its resources and add to its wealth contrary to the 14th Amendment and also is in
and prosperity. From the very necessities of society, legislation of a contravention of the treaty between the United States and
special character, having these objects in view, must often be had in Italy, to which latter country the plaintiff in error belongs .
certain districts." (Barbier vs. Connolly [1884], 113 U.S., 27; New Under the 14th Amendment the objection is twofold;
Orleans Gas Co. vs. Lousiana Light Co. [1885], 115 U.S., 650.) This unjustifiably depriving the alien of property, and
is the same police power which the United States Supreme Court discrimination against such aliens as a class. But the
say "extends to so dealing with the conditions which exist in the state former really depends upon the latter, since it hardly can
as to bring out of them the greatest welfare in of its people." be disputed that if the lawful object, the protection of wild
 life (Geer vs. Connecticut, 161 U.S., 519; 40 L. ed., 793; These laws continued in force without contest, although possibly the
16 Sup. Ct. Rep., 600), warrants the discrimination, the, Act of March 3, 1825, may have affected them, until amended by the
means adopted for making it effective also might be Act of May 28, 1896 (29 Stat. at L., 188) which extended the
adopted. . . . privileges of registry from vessels wholly owned by a citizen or
The discrimination undoubtedly presents a more difficult citizens of the United States to corporations created under the laws
question. But we start with reference to the evil to be of any of the states thereof. The law, as amended, made possible
prevented, and that if the class discriminated against is or the deduction that a vessel belonging to a domestic corporation was
reasonably might be considered to define those from entitled to registry or enrollment even though some stock of the
whom the evil mainly is to be feared, it properly may be company be owned by aliens. The right of ownership of stock in a
picked out. A lack of abstract symmetry does not matter. corporation was thereafter distinct from the right to hold the property
The question is a practical one, dependent upon by the corporation (Humphreys vs. McKissock [1890], 140 U.S., 304;
experience. . . . Queen vs. Arnaud [1846], 9 Q. B., 806; 29 Op. Atty.-Gen.
The question therefore narrows itself to whether this court [U.S.],188.)
can say that the legislature of Pennsylvania was not On American occupation of the Philippines, the new government
warranted in assuming as its premise for the law that found a substantive law in operation in the Islands with a civil law
resident unnaturalized aliens were the peculiar source of history which it wisely continued in force Article fifteen of the Spanish
the evil that it desired to prevent. (Barrett vs. Indiana,. 229 Code of Commerce permitted any foreigner to engage in Philippine
U.S., 26, 29; 57 L. ed., 1050, 1052; 33 Sup. Ct. Rep., trade if he had legal capacity to do so under the laws of his nation.
692.) When the Philippine Commission came to enact the Customs
Obviously the question, so stated, is one of local Administrative Act (No. 355) in 1902, it returned to the old American
experience, on which this court ought to be very slow to policy of limiting the protection and flag of the United States to
declare that the state legislature was wrong in its facts vessels owned by citizens of the United States or by native
(Adams vs. Milwaukee, 228 U.S., 572, 583; 57 L. ed., inhabitants of the Philippine Islands (Sec. 117.) Two years later, the
971,.977; 33 Sup. Ct. Rep., 610.) If we might trust popular same body reverted to the existing Congressional law by permitting
speech in some states it was right; but it is enough that certification to be issued to a citizen of the United States or to a
this court has no such knowledge of local conditions as to corporation or company created under the laws of the United States
be able to say that it was manifestly wrong. . . . or of any state thereof or of the Philippine Islands (Act No. 1235,
Judgment affirmed. sec. 3.) The two administration codes repeated the same provisions
We are inclined to the view that while Smith, Bell & Co. Ltd., a with the necessary amplification of inclusion of citizens or native
corporation having alien stockholders, is entitled to the protection inhabitants of the Philippine Islands (Adm. Code of 1916, sec. 1345;
afforded by the due-process of law and equal protection of the laws Adm. Code of 1917, sec. 1172). And now Act No. 2761 has returned
clause of the Philippine Bill of Rights, nevertheless, Act No. 2761 of to the restrictive idea of the original Customs Administrative Act
the Philippine Legislature, in denying to corporations such as Smith, which in turn was merely a reflection of the statutory language of the
Bell &. Co. Ltd., the right to register vessels in the Philippines first American Congress.
coastwise trade, does not belong to that vicious species of class Provisions such as those in Act No. 2761, which deny to foreigners
legislation which must always be condemned, but does fall within the right to a certificate of Philippine registry, are thus found not to
authorized exceptions, notably, within the purview of the police be as radical as a first reading would make them appear.
power, and so does not offend against the constitutional provision. Without any subterfuge, the apparent purpose of the Philippine
This opinion might well be brought to a close at this point. It occurs Legislature is seen to be to enact an anti-alien shipping act. The
to us, however, that the legislative history of the United States and ultimate purpose of the Legislature is to encourage Philippine ship-
the Philippine Islands, and, probably, the legislative history of other building. This, without doubt, has, likewise, been the intention of the
countries, if we were to take the time to search it out, might disclose United States Congress in passing navigation or tariff laws on
similar attempts at restriction on the right to enter the coastwise different occasions. The object of such a law, the United States
trade, and might thus furnish valuable aid by which to ascertain and, Supreme Court once said, was to encourage American trade,
if possible, effectuate legislative intention. navigation, and ship-building by giving American ship-owners
3. The power to regulate commerce, expressly delegated exclusive privileges. (Old Dominion Steamship Co. vs. Virginia
to the Congress by the Constitution, includes the power to [1905], 198 U.S., 299; Kent's Commentaries, Vol. 3, p. 139.)
nationalize ships built and owned in the United States by In the concurring opinion of Justice Johnson in Gibbons vs. Ogden
registries and enrollments, and the recording of the ([1824], 9 Wheat., 1) is found the following:
muniments of title of American vessels. The Congress Licensing acts, in fact, in legislation, are universally
"may encourage or it may entirely prohibit such restraining acts; as, for example, acts licensing gaming
commerce, and it may regulate in any way it may see fit houses, retailers of spirituous liquors, etc. The act, in this
between these two extremes." (U.S. vs. Craig [1886], 28 instance, is distinctly of that character, and forms part of
Fed., 795; Gibbons vs. Ogden [1824], 9 Wheat., 1; The an extensive system, the object of which is to encourage
Passenger Cases [1849], 7 How., 283.) American shipping, and place them on an equal footing
Acting within the purview of such power, the first Congress of the with the shipping of other nations. Almost every
United States had not been long convened before it enacted on commercial nation reserves to its own subjects a
September 1, 1789, "An Act for Registering and Clearing Vessels, monopoly of its coasting trade; and a countervailing
Regulating the Coasting Trade, and for other purposes." Section 1 of privilege in favor of American shipping is contemplated, in
this law provided that for any ship or vessel to obtain the benefits of the whole legislation of the United States on this subject. It
American registry, it must belong wholly to a citizen or citizens of the is not to give the vessel an American character, that the
United States "and no other." (1 Stat. at L., 55.) That Act was shortly license is granted; that effect has been correctly attributed
after repealed, but the same idea was carried into the Acts of to the act of her enrollment. But it is to confer on her
Congress of December 31, 1792 and February 18, 1793. (1 Stat. at American privileges, as contradistinguished from foreign;
L., 287, 305.).Section 4 of the Act of 1792 provided that in order to and to preserve the. Government from fraud by foreigners,
obtain the registry of any vessel, an oath shall be taken and in surreptitiously intruding themselves into the American
subscribed by the owner, or by one of the owners thereof, before the commercial marine, as well as frauds upon the revenue in
officer authorized to make such registry, declaring, "that there is no the trade coastwise, that this whole system is projected.
subject or citizen of any foreign prince or state, directly or indirectly, The United States Congress in assuming its grave responsibility of
by way of trust, confidence, or otherwise, interested in such vessel, legislating wisely for a new country did so imbued with a spirit of
or in the profits or issues thereof." Section 32 of the Act of 1793 even Americanism. Domestic navigation and trade, it decreed, could only
went so far as to say "that if any licensed ship or vessel shall be be carried on by citizens of the United States. If the representatives
transferred to any person who is not at the time of such transfer a of the American people acted in this patriotic manner to advance the
citizen of and resident within the United States, ... every such vessel national policy, and if their action was accepted without protest in the
with her tackle, apparel, and furniture, and the cargo found on board courts, who can say that they did not enact such beneficial laws
her, shall be forefeited." In case of alienation to a foreigner, Chief under the all-pervading police power, with the prime motive of
Justice Marshall said that all the privileges of an American bottom safeguarding the country and of promoting its prosperity? Quite
were ipso facto forfeited. (U.S. vs. Willings and Francis [1807], 4 similarly, the Philippine Legislature made up entirely of Filipinos,
Cranch, 48.) Even as late as 1873, the Attorney-General of the representing the mandate of the Filipino people and the guardian of
United States was of the opinion that under the provisions of the Act their rights, acting under practically autonomous powers, and
of December 31, 1792, no vessel in which a foreigner is directly or imbued with a strong sense of Philippinism, has desired for these
indirectly interested can lawfully be registered as a vessel of the Islands safety from foreign interlopers, the use of the common
United. States. (14 Op. Atty.-Gen. [U.S.], 340.) property exclusively by its citizens and the citizens of the United
States, and protection for the common good of the people. Who can
say, therefore, especially can a court, that with all the facts and even as he discharged both his defense counsel of choice and his
circumstances affecting the Filipino people before it, the Philippine military defense counsel.
Legislature has erred in the enactment of Act No. 2761? The proceedings were thereupon adjourned to another day. In the
Surely, the members of the judiciary are not expected to live apart meantime, for the petitioner's assurance, a Special Committee,
from active life, in monastic seclusion amidst dusty tomes and composed of a retired. Justice of the Supreme Court, to be
ancient records, but, as keen spectators of passing events and alive designated by the Chief Justice, as Chairman, and four (4) members
to the dictates of the general — the national — welfare, can incline to be designated respectively by petitioner, the President of the
the scales of their decisions in favor of that solution which will most Integrated Bar of the Philippines, the Secretary of Justice and the
effectively promote the public policy. All the presumption is in favor Secretary of National Defense, was created to reinvestigate the
of the constitutionally of the law and without good and strong charges against petitioner. The Secretaries of Justice and National
reasons, courts should not attempt to nullify the action of the Defense designated their representatives but the petitioner refused
Legislature. "In construing a statute enacted by the Philippine to name his. The Chief Justice asked former Justice J.B.L. Reyes
Commission (Legislature), we deem it our duty not to give it a but the latter declined, as he also declined in his capacity as
construction which would be repugnant to an Act of Congress, if the President of the IBP to designate a representative to the Committee.
language of the statute is fairly susceptible of another construction As a result, with only two of its members designed, the Special
not in conflict with the higher law." (In re Guariña [1913], 24. Phil., Committee has not been able to function.
36; U.S. vs. Ten Yu [1912], 24 Phil., 1.) That is the true construction On September 4, 1973, a supplemental petition alleging the creation
which will best carry legislative intention into effect. of the Special Committee and questioning the legality of its creation
With full consciousness of the importance of the question, we was filed. The Chief Justice of the Supreme Court and the Secretary
nevertheless are clearly of the opinion that the limitation of domestic of Justice were included as respondents. Subsequently, the Court
ownership for purposes of obtaining a certificate of Philippine resolved to require the respondents to file their answer and on
registry in the coastwise trade to citizens of the Philippine Islands, August 21, 1974, within the extended period granted by the Court,
and to citizens of the United States, does not violate the provisions respondents, with the exception of the Chief Justice, filed their
of paragraph 1 of section 3 of the Act of Congress of August 29, answer to the supplemental petition.
1916 No treaty right relied upon Act No. 2761 of the Philippine Thereafter, petitioner was required to file a reply and was granted
Legislature is held valid and constitutional . additional time after the lapse of the original period, but instead of
The petition for a writ of mandamus is denied, with costs against the doing so, petitioner asked for the admission of a second
petitioner. So ordered. supplemental petition challenging the continued enforcement of
martial law in the Philippines, in the light of Presidential statements
to the effect that with the coming into force of the new Constitution
Republic of the Philippines on January 17, 1973, martial law was "technically and legally" lifted.
SUPREME COURT To this petition respondents answered. Thereafter, the parties
Manila submitted their respective memoranda in lieu of oral argument as
EN BANC per Resolution of this Court on January 14, 1975.4
G.R. No. L-37364 May 9, 1975 On March 24, 1975, petitioner filed an "Urgent Motion for Issuance of
BENIGNO S. AQUINO, JR., petitioner, Temporary Restraining Order Against Military Commission No. 2";
vs. praying that said Commission be prohibited from proceeding with the
MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES perpetuation of testimony under its Order dated March 10, 1975, the
OF THE PHILIPPINES, and SECRETARY OF NATIONAL same being illegal, until further orders from the Supreme Court..
DEFENSE, THE CHIEF JUSTICE OF THE SUPREME COURT, and On March 31, 1975, respondents filed their Comment to petitioner's
SECRETARY OF JUSTICE, * respondents. aforementioned urgent motion, which motion and other related
Tañada, Salonga, Ordoñez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per
Castro and Felipe for petitioner. Resolution of this Court on April 8, 1975.
Office of the Solicitor General Estelito P. Mendoza, Assistant Meanwhile, or on April 1, 1975, this Court issued a Resolution,
Solicitor-General Vicente V. Mendoza, Assistant Solicitor General stating that "for lack of a necessary quorum", it could not act on
Hugo E. Gutierrez, Jr., Assistant Solicitor General Reynato S. Puno petitioner's Urgent Motion for Issuance of temporary Restraining
and Attorney Blesila Quintillan for respondents. Order Against Military Commission No. 2, inasmuch as this case
ANTONIO, J.:ñé+.£ªwph!1 involved a constitutional question..
Following the proclamation of martial law in the Philippines, On April 7, 1975, petitioner filed a "Manifestation" stating, among
petitioner was arrested on September 23, 1972, pursuant to General others, that the "Urgent Motion did not and does not involve a
Order No. 2-A of the President for complicity in a conspiracy to seize constitutional question", for reasons stated therein.
political and state power in the country and to take over the On April 12, 1975, respondents filed their "Reply to Petitioner's
Government. He was detained at Fort Bonifacio in Rizal province. Manifestation", followed by Respondents' Manifestation filed on April
On September 25, 1972, he sued for a writ of habeas corpus1 in 14, 1975, attaching thereto fourteen (14) sworn statements of
which he questioned the legality of the proclamation of martial law witnesses whose testimonies are sought to be perpetuated..
and his arrest and detention. This Court issued a writ of habeas On April 14, 1975, this Court also issued a restraining order against
corpus, returnable to it, and required respondents to file their respondent Military Commission No. 2, restraining it from further
respective answers, after which the case was heard. Thereafter, the proceeding with the perpetuation of testimony under its Order dated
parties submitted their memoranda. Petitioner's last Reply March 10, 1975 until the matter is heard and further orders are
memorandum was dated November 30, 1972. On September 17, issued.
1974, this Court dismissed the petition and upheld the validity of When this case was called for hearing, petitioner's counsel
martial law and the arrest and detention of petitioner.2 presented to this Court a motion to withdraw the petition, as well as
In the present case, petitioner challenges the jurisdiction of military all other pending matters and/or incidents in connection therewith.
commissions to try him, alone or together with others, for illegal Respondents' counsel interposed objection to the granting of the
possession of firearms, ammunition and explosives, for violation of aforesaid motion to withdraw.
the Anti-Subversion Act and for murder. The charges are contained After the hearing, this Court Resolved: "(a) to require the Solicitor
in six (6) amended charge sheets3 filed on August 14, 1973 with General to furnish the Court as well as the petitioner and the latter's
Military Commission No. 2. counsel, with copies of the transcript of all the stenographic notes
The original petition in this case was filed on August 23, 1973. It taken at the hearing before the Military Commission No. 2 for the
sought to restrain the respondent Military Commission from the perpetuation of the testimony of the witnesses for the prosecution in
proceeding with the hearing and trial of petitioner on August 27, various criminal cases filed against herein petitioner, within five (5)
1973. Because of the urgency of the petition, this Court called a days from today; (b) to request the Solicitor General and the AFP
hearing on Sunday, August 26, on the question of whether with its Judge Advocate General to make the necessary arrangements for
membership of only nine (9) Justices, it had a quorum to take the petitioner to confer with his counsel on matters connected with
cognizance of the petition in view of the constitutional questions the aforementioned motion to withdraw; (c) to allow counsel for the
involved. At that hearing, this Court asked the parties to agree to petitioner, if they so desire, to file a manifestation in amplication of
seek from the Military Commission a postponement of petitioner's the aforesaid motion to withdraw, within ten (10) days from the date
trial the following day. The purpose was to relieve the Court of the they confer with the petitioner, and thereafter to allow the Solicitor
pressure of having to decide the question of quorum without General to file a counter-manifestation within ten (10) days from
adequate time to do so. receipt of a copy thereof; and (d) to consider the case submitted for
When the proceedings before the Military Commission opened the decision after submission by both parties of their respective
following day, however, petitioner questioned the fairness of the trial pleadings on the motion to withdraw."
and announced that he did not wish to participate in the proceedings Subsequently, the parties manifested their compliance.
I
Acting on petitioner's motion to withdraw the petitions and motions in by martial law. When it is absolutely imperative for public safety,
this case, and there being only three (3) Justices (Justices legal processes can be superseded and military tribunals authorized
Fernando, Teehankee and Muñoz Palma) who voted in favor of to exercise the jurisdiction normally vested in court." 12
granting such withdrawal, whereas seven (7) Justices (Justices In any case, We cannot close Our eyes to the fact that the continued
Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion and Martin) existence of these military tribunals and the exercise by them of
voted for its denial, the said motion to withdraw is deemed denied jurisdiction over civilians during the period of martial law are within
(Section 11, Rule 56 of the Revised Rules of Court). The Chief the contemplation and intendment of Section 3, paragraph 2 of
Justice has inhibited himself, having been made respondent by Article XVII of the Constitution. These are tribunals of special and
petitioner in his Supplemental Petitions.5 restricted jurisdiction created under the stress of an emergency and
The Justice who voted to deny the withdrawal are of the opinion that national security. This is the only logical way to construe said
since all matters in issue in this case have already been submitted Section 3, paragraph 2 of Article XVII of the Constitution, in relation
for resolution, and they are of paramount public interest, it is to General Order Nos. 8, 12 and 39, in the context of contemporary
imperative that the questions raised by petitioner on the history and the circumstances attendant to the framing of the new
constitutionality and legality of proceedings against civilians in the charter.
military commissions, pursuant to pertinent General Orders, 4. When it has been established that martial law is in force, the
Presidential Decrees and Letters of Instruction, should be definitely responsibility for all acts done thereunder must be taken by the
resolved. authorities administering it. 13 It is a serious responsibility which
In regard to the merits, We Resolve by a vote of eight (8) Justices to merits the cooperation of all in the collective desire for the
dismiss the main as well as the supplemental petitions. 5* restoration of civil order. In the case at bar, petitioner is charged with
II having conspired with certain military leaders of the communist
MILITARY COMMISSIONS rebellion to overthrow the government, furnishing them arms and
We have that the respondent Military Commission No. 2 has been other instruments to further the uprising. There is no question that
lawfully constituted and validly vested with jurisdiction to hear the the continuing communist rebellion was one of the grave threats to
cases against civilians, including the petitioner. the Republic that brought about the martial law situation. Under
1. The Court has previously declared that the proclamation of Martial General Order No. 12, jurisdiction over this offense has been vested
Law (Proclamation No. 1081) on September 21, 1972, by the exclusively upon military tribunals. It cannot be said that petitioner
President of the Philippines is valid and constitutional and that its has been singled out for trial for this offense before the military
continuance is justified by the danger posed to the public safety.6 commission. Pursuant to General Order No. 12, all "criminal cases
2. To preserve the safety of the nation in times of national peril, the involving subversion, sedition, insurrection or rebellion or those
President of the Philippines necessarily possesses broad authority committed in furtherance of, on the occasion of incident to or in
compatible with the imperative requirements of the emergency. On connection with the commission of said crimes" which were pending
the basis of this, he has authorized in General Order No. 8 in the civil courts were ordered transferred to the military tribunals.
(September 27, 1972) the Court of Staff, Armed Forces of the This jurisdiction of the tribunal, therefore, operates equally on all
Philippines, to create military tribunals to try and decide cases "of persons in like circumstances..
military personnel and such other cases as may be referred to 5. Neither are We impressed with petitioner's argument that only thru
them." In General Order No. 12 (September 30, 1972), the military a judicial proceeding before the regular courts can his right to due
tribunals were vested with jurisdiction "exclusive of the civil courts", process be preserved. The guarantee of due process is not a
among others, over crimes against public order, violations of the guarantee of any particular form of tribunal in criminal cases. A
Anti-Subversion Act, violations of the laws on firearms, and other military tribunal of competent jurisdiction, accusation in due form,
crimes which, in the face of the emergency, are directly related to notice and opportunity to defend and trial before an impartial
the quelling of the rebellion and preservation of the safety and tribunal, adequately meet the due process requirement. Due process
security of the Republic. In order to ensure a more orderly of law does not necessarily means a judicial proceeding in the
administration of justice in the cases triable by the said military regular courts. 14 The guarantee of due process, viewed in its
tribunals, Presidential Decree No. 39 was promulgated on November procedural aspect, requires no particular form of procedure. It
7,1972, providing for the "Rules Governing the Creation, implies due notice to the individual of the proceedings, an
Composition, Jurisdiction, Procedure and Other Matters Relevant to opportunity to defend himself and "the problem of the propriety of the
Military Tribunals." These measures he has the authority to deprivations, under the circumstances presented, must be resolved
promulgate, since this Court recognized that the incumbent in a manner consistent with essential fairness." 15 It means
President, under paragraphs 1 and 2 of Section 3 of Article XVII of essentially a fair and impartial trial and reasonable opportunity for
the new Constitution, had the authority to "promulgate the preparation of defense.16
proclamations, orders and decrees during the period of martial law Here, the procedure before the Military Commission, as prescribed
essential to the security and preservation of the Republic, to the in Presidential Decree No. 39, assures observance of the
defense of the political and social liberties of the people and to the fundamental requisites of procedural due process, due notice, an
institution of reforms to prevent the resurgence of the rebellion or essentially fair and impartial trial and reasonable opportunity for the
insurrection or secession or the threat thereof....."7 Pursuant to the preparation of the defense.17
aforesaid Section 3 [1] and [2] of Article XVII of the Constitution, 6. It is, however, asserted that petitioner's trial before the military
General Orders No. 8, dated September 27, 1972 (authorizing the commission will not be fair and impartial, as the President had
creation of military tribunals), No. 12, dated September 30, 1972 already prejudged petitioner's cases and the military tribunal is a
(defining the jurisdiction of military criminals and providing for the mere creation of the President, and "subject to his control and
transfer from the civil courts to military tribunals of cases involving direction." We cannot, however, indulge in unjustified assumptions.
subversion, sedition, insurrection or rebellion, etc.), and No. 39, Prejudice cannot be presumed, especially if weighed against the
dated November 7, 1972, as amended (prescribing the procedures great confidence and trust reposed by the people upon the President
before military tribunals), are now "part of the law of the land." 8 and the latter's legal obligation under his oath to "do justice to every
3. Petitioner nevertheless insists that he being a civilian, his trial by a man". Nor is it justifiable to conceive, much less presume, that the
military commission deprives him of his right to due process, since in members of the military commission, the Chief of Staff of the Armed
his view the due process guaranteed by the Constitution to persons Forces of the Philippines, the Board of Review and the Secretary of
accused of "ordinary" crimes means judicial process. This argument National Defense, with their corresponding staff judge advocates, as
ignores the reality of the rebellion and the existence of martial law. It reviewing authorities, through whom petitioner's hypothetical
is, of course, essential that in a martial law situation, the martial law conviction would be reviewed before reaching the President, would
administrator must have ample and sufficient means to quell the all be insensitive to the great principles of justice and violate their
rebellion and restore civil order. Prompt and effective trial and respective obligations to act fairly and impartially in the premises.
punishment of offenders have been considered as necessary in a This assumption must be made because innocence, not wrongdoing,
state of martial law, as a mere power of detention may be wholly is to be presumed. The presumption of innocence includes that of
inadequate for the exigency. 9 "It need hardly be remarked that good faith, fair dealing and honesty. This presumption is accorded to
martial law lawfully declared," observed Winthrop, "creates an every official of the land in the performance of his public duty. There
exception to the general rule of exclusive subjection to the civil is no reason why such presumption cannot be accorded to the
jurisdiction, and renders offenses against the laws of war, as well as President of the Philippines upon whom the people during this period
those of a civil character, triable, at the discretion of the commander, has confided powers and responsibilities which are of a very high
(as governed by a consideration for the public interests and the due and dedicate nature. The preservation of the rights guaranteed by
administration of justice) by military tribunals." 10 the Constitution rests at bottom exactly where the defense of the
Indeed, it has been said that in time of overpowering necessity, nation rests: in the good sense and good will of the officials upon
"public danger warrants the substitution of executive process for whom the Constitution has placed the responsibility of ensuring the
judicial process." 11 According to Schwartz, "The immunity of civilians safety of the nation in times of national peril.
from military jurisdiction must, however, give way in areas governed III
ADMINISTRATIVE ORDER NO. 355 Speaking for the Court, Justice Tuason, in Bustos v.
We also find that petitioner's claim that Administrative Order No. 355 Lucero, 24 discussed the matter extensively, thus: têñ.£îhqwâ£
actually "strips him of his right to due process" is negated by the As applied to criminal law, substantive law is
basic purpose and the clear provisions of said Administrative Order. that which declares what acts are crimes and
It was precisely because of petitioner's complaint that he was denied prescribes the punishment for committing them,
the opportunity to be heard in the preliminary investigation of his as distinguished from the procedural law which
charges that the President created a Special Committee to provides or regulates the steps by which one
reinvestigate the charges filed against him in the military who commits a crime is to be punished. (22
commission. The Committee is to be composed of a retired Justice C.J.S., 49.) Preliminary investigation is
of the Supreme Court, to be designated by the Chief Justice, as eminently and essentially remedial; it is the first
Chairman, and four (4) members to be designated respectively by step taken in a criminal prosecution.
the accused, the President of the Integrated Bar, the Secretary of As a rule of evidence, section 11 of Rule 108 is
Justice and the Secretary of National Defense, all of whom, also procedural. Evidence — which is 'the mode
according to Administrative Order No. 355 "must be learned in the and manner of proving the competent facts and
law, reputed for probity, integrity, impartiality, incorruptibility and circumstances on which a party relies to
fairness...." It is intended that the Committee should conduct the establish the fact in dispute in judicial
investigation with "utmost fairness, 'impartiality and objectivity' proceedings' — is identified with and forms part
ensuring to the accused his constitutional right to due process, to of the method by which, in private law, rights are
determine whether "there is reasonable ground to believe that the enforced and redress obtained, and, in criminal
offenses charged were in fact committed and the accused is law, a law transgressor is punished. Criminal
probably guilty thereof." procedure refers to pleading, evidence and
Petitioner, however, objected by challenging in his supplemental practice. (State vs. Capaci, 154 So., 419; 179
petition before this Court the validity of Administrative Order No, 355, La., 462.) The entire rules of evidence have
on the pretense that by submitting to the jurisdiction of the Special been incorporated into the Rules of Court. We
Committee he would be waiving his right to cross-examination can not tear down section 11 of Rule 108 on
because Presidential Decree No. 77, which applies to the constitutional grounds without throwing out the
proceedings of the Special Committee, has done away with cross- whole code of evidence embodied in these
examination in preliminary investigation. Rules.
The infirmity of this contention is apparent from the fact that the In Beazeil vs. Ohio, 269 U.S., 167, 70 Law. ed.,
committee "shall have all the powers vested by law in officials 216, the United States Supreme Court said: têñ.
authorized to conduct preliminary investigations." We have held as £îhqwâ£
implicit in the power of the investigating Fiscal or Judge in the 'Expressions are to be found in earlier judicial opinions to the effect
discharge of his grave responsibility of ascertaining the existence of that the constitutional limitation may be transgressed by alterations
probable cause, is his right to cross-examine the witnesses since in the rules of evidence or procedure. See Calder Bull, 3 Dall 386,
"cross-examination whether by the judge or by the prosecution 390. 1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18
supplies the gap by permitting an instant contrast of falsehoods and L. ed., 356, 364; Kring Missouri, 107 U.S. 221, 228, 232, 27 L. ed.,
opposing half-truths, mixed with elements of truth, from which the 507, 508, 510, 2 Sup. Ct. Rep. 443. And there may be procedural
examining judge or officer is better able to form a correct synthesis changes which operate to deny to the accused a defense available
of the real facts." 18 under the laws in force at the time of the commission of his offense,
In the case at bar, petitioner's representative in the Committee or which otherwise affect him in such a harsh and arbitrary manner
having been conferred with "all the powers" of officials authorized to as to fall within the constitutional prohibition. Kring vs. Missouri, 107
conduct preliminary investigations, is, therefore, expressly U.S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson vs. Utah,
authorized by Section 1[c] of Presidential Decree No. 77 to 170 US 343; 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now
subpoena the complainant and his witnesses and "profound well settled that statutory changes in the mode of trial or the rules of
clarificatory questions". Viewed in the context of Our ruling in Abrera evidence, which do not deprive the accused of a defense and which
v.. Muñoz, 19 this implies the authority of his representative in the operate only in a limited and unsubstantial manner to his
Committee to cross-examine the witnesses of the prosecution, in disadvantage, are not prohibited. A statute which, after indictment,
order to reach an intelligent and correct conclusion on the existence enlarges the class of persons who may be witnesses at the trial, by
of probable cause. removing the disqualification of persons convicted of felony, is not an
IV ex post facto law. Hopt vs. Utah, 110 U.S., 575, 28 L. ed., 263, 4
PRELIMINARY INVESTIGATION Sup. Ct. Rep., 202. 4 Am. Crime Rep 417. Nor is a statute which
Equally untenable is petitioner's contention that his constitutional changes the rules of evidence after the indictment so as to render
right to due process has been impaired when the anti-subversion admissible against the accused evidence previously held
charges filed against him with the military commission were not inadmissible, Thompson Missouri, 171 U.S., 380, 43 L. ed., 204, 18
investigated preliminarily in accordance with Section 5 of the Anti- Sup. Ct. Rep. 922; or which changes the place of trial, Gut vs.
Subversion Act, but in the manner prescribed by Presidential Decree Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for
No. 39, as amended by Presidential Decree No. 77. It is asserted hearing criminal appeals, creating a new one in its stead. See
that under the aforesaid Presidential Decrees, he is precluded from Duncan vsMissouri, 152 U.S., 377, 382, 38 L. ed., 485, 487, 14 Sup.
cross-examining the prosecution witnesses and from being assisted Ct. Rep., 570.'
by counsel. Contrary to petitioner's contention, Section 1[b] of Tested by this standard, we do not believe that
Presidential Decree No. 77 specifically grants him the right to the curtailment of the right of an accused in a
counsel, and Presidential Decree No. 328 amended Presidential preliminary investigation to cross-examine the
Decree No. 39, precisely to secure the substantial rights of the witness who had given evidence for his arrest is
accused by granting him the right to counsel during preliminary of such importance as to offend against the
investigation. Under Section 5 of Republic Act No. 1700, the constitutional inhibition. As we have said in the
accused shall have the right "to cross-examine witnesses against beginning, preliminary investigation is not an
him" and in case the offense is penalized by prision mayor to death, essential part of due process of law. It may be
the preliminary investigation shall be conducted by the proper Court suppressed entirely, and if this may be done,
of First Instance. As to whether or not the denial to an accused of an mere restriction of the privilege formerly enjoyed
opportunity to cross-examine the witnesses against him in the thereunder can not be held to fall within the
preliminary investigation constitutes an infringement of his right to constitutional prohibition.
due process, We have to advert to certain basic principles. The In rejecting the contention of the political offenders accused in the
Constitution "does not require the holding of preliminary People's Court that their constitutional right to equal protection of the
investigations. The right exists only, if and when created by laws was impaired because they were denied preliminary
statute." 20 It is "not an essential part of due process of law." 21 The examination and investigation, whereas the others who may be
absence thereof does not impair the validity of a criminal information accused of the same crimes in the Court of First Instance shall be
or affect the jurisdiction of the court over the case. 22 As a creation of entitled thereto, this Court said: têñ.£îhqwâ£
the statute it can, therefore, be modified or amended by law. (2) Section 22 in denying preliminary
It is also evident that there is no curtailment of the constitutional right investigation to persons accused before the
of an accused person when he is not given the opportunity to "cross- People's Court is justified by the conditions
examine the witnesses presented against him in the preliminary prevailing when the law was enacted. In view of
investigation before his arrest, this being a matter that depends on the great number of prisoners then under
the sound discretion of the Judge or investigating officer detention and the length of time and amount of
concerned." 23 labor that would be consumed if so many
 prisoners were allowed the right to have has been served on him, and will be conducted
preliminary investigation, considered with the in the same manner as an examination at the
necessity of disposing of these cases at the trial. Failure or refusal on the part of the
earliest possible dates in the interest of the defendant to attend the examination or the
public and of the accused themselves, it was not taking of the deposition after notice hereinbefore
an unwise measure which dispensed with such provided, shall be considered a waiver. The
investigation in such cases. Preliminary statement or deposition of the witness thus
investigation, it must be remembered, is not a taken may be admitted in behalf of or against
fundamental right guaranteed by the the defendant. His testimony taken, the witness
Constitution. For the rest, the constitutional must thereupon be discharged, if he has been
prohibition against discrimination among detained.
defendants placed in the same situation and The foregoing was taken substantially from Section 7 of Rule 115 of
condition is not infringed. 25 the old Rules of Court, with the difference, among others, that the
It was realized that the procedure prescribed in Republic Act No. phrase "or after one hour notice" in the old Rules of Court has been
5180 granting the complainant and respondent in a preliminary changed to "or after reasonable notice" in the Revised Rules of
investigation the right to cross-examine each other and their Court.
witnesses was "time consuming and not conducive to the In Elago v. People, 27 this Court, in rejecting the contention that no
expeditious administration of justice". Hence, it was found necessary written motion was filed by the prosecuting attorney for the taking of
in Presidential Decree No. 77 to simplify the procedure of preliminary the depositions and that less than one hour notice has been given
investigation to conform to its summary character, by eliminating the the defendant, held that "the one-hour notice mentioned in Section
cross-examination by the contending parties of their respective 7, Rule 115, of the Rules of Court, was intended by law mainly to
witnesses which in the past had made the proceeding the occasion give the defendant time to attend the taking of a deposition and not
for the full and exhaustive display of parties' evidence. The to prepare for the taking thereof because in reality there is no need
procedure prescribed in the aforecited decrees appears justified by for preparation. It is not a trial where the defendant has to introduce
the necessity of disposing cases during martial law, especially those his evidence. It is only taking down the statements of the witnesses
affecting national security, at the earliest date. On the basis of the for the prosecution with opportunity on the part of the defendant to
aforestated settled principles, the curtailment of the right of an cross-examine them."
accused to cross-examine the witnesses against him in the The thrust of Elago is that the order of the court authorizing the
preliminary investigation does not impair any constitutional right. It taking of the deposition of the witnesses of the prosecution and
may be relevant to note that recently in Litton, et al. v. Castillo, et fixing the date and time thereof is the one that must be served on the
al., 26 this Court denied for lack of merit a petition challenging the accused within a reasonable time prior to that fixed for the
validity of Presidential Decree No. 77 issued on December 6, 1972, examination of the witnesses so that the accused may be present
on the ground that aforesaid decree now "forms part of the law of the and cross-examine the witness. On this point of the time given the
land." defendant to attend the taking of the deposition, Professor Wigmore
V has the following to say: têñ.£îhqwâ£
PERPETUATION OF TESTIMONY The opportunity of cross-examination involves
Petitioner claims that the order of the Military Commission for the two elements:
perpetuation of the testimony of prosecution witnesses is void (1) Notice to the opponent that the deposition is
because no copy of the petition was previously served on him. He to be taken at the time and place specified, and
asserts that, as a consequence, he was not given the opportunity to (2) A sufficient interval of time to prepare for
contest the propriety of the taking of the deposition of the witnesses. examination and to reach the place.
It must be noted that petitioner does not dispute respondents' claim xxx xxx xxx
that on March 14, 1975, he knew of the order allowing the taking of (2) The requirements as to the interval of
the deposition of prosecution witnesses on March 31, to continue time are now everywhere regulated by
through April 1 to 4, 1975. statute .... ; the rulings in regard to the
The provisions of Presidential Decree No. 328, dated October 31, sufficiency of time are thus so dependent on the
1973, for the conditional examination of prosecution witnesses interpretation of the detailed prescriptions of the
before trial, is similar to the provisions of Section 7 of Rule 119 of the local statutes that it would be impracticable to
Revised Rules of Court. Presidential Decree No. 328 provides: têñ. examine them here. But whether or not the time
£îhqw⣠allowed was supposedly insufficient or was
Where, upon proper application, it shall precisely the time required by statute, the actual
satisfactorily appear to the military tribunal attendance of the party obviate any objection
before which a case is pending, that a witness upon the ground of insufficiency, because then
for the prosecution or the defense is too sick or the party has actually had that opportunity of
infirm to appear at the trial, or has to leave the cross-examination ... for the sole sake of which
Philippines with no definite date of returning the notice was required. 28
thereto, or where delay in the taking of its We, therefore, hold that the taking of the testimony or deposition was
testimony may result in the failure of justice or proper and valid.
adversely affect national security, the witness VI
may forthwith be examined and his deposition WAIVER OF PETITIONER'S PRESENCE
immediately taken, such examination to be by There is conflict among the authorities as to whether an accused can
question and answer, in the presence of the waive his right to be present at his trial. Some courts have regarded
other party, or even in the latter's absence the presence of the accused at his trial for felony as a jurisdictional
provided that reasonable notice to attend the requirement, which cannot be waived. 29 Many others do not accept
examination or the taking of the deposition has this view.30 In defense of the first view, it has been stated that the
been served upon him, and will be conducted in public has an interest in the life and liberty of an accused and that
the same manner as an examination, at the trial, which the law considers essential in a trial cannot be waived by the
in which latter event the failure or refusal to accused. 31 In support of the latter view, it has been argued that the
attend the examination or the taking of the right is essentially for the benefit of the accused, 32 and that "since
deposition shall be considered a waiver. the accused, by pleading guilty, can waive any trial at all, he should
(Emphasis supplied.) be able to waive any mere privilege on the trial that is designated
Section 7 of Rule 119 of the Revised Rules provides: têñ.£îhqw⣠only to aid him in shielding himself from such result."33
Deposition of witness for the prosecution. — In this jurisdiction, this Court, in People v. Avanceña, 34 traced the
Where, however, it shall satisfactorily appear history of the constitutional right of the accused to be present at his
that the witness cannot procure bail, or is too trial from U.S. v. Karelsen 35 and U.S. v. Bello 36 Diaz v. United
sick or infirm to appear at the trial, as directed States 37 and People v. Francisco. 38 In the first two cases, it was
by the order of the court, or has to leave the ruled that one whose life or liberty is involved in the prosecution for
Philippines with no definite date of returning felony must be personally present at every stage of the trial when his
thereto, he may forthwith be conditionally substantive rights may be affected by the proceedings and that it is
examined or his deposition immediately taken. not within his power to waive the right to be personally present.
Such examination or deposition must be by In Diaz v. United States and People v. Francisco, this rule was
question and answer, in the presence of the modified. Upon the authority of the Diaz and Francisco cases, the
defendant or after reasonable notice to attend Court laid down as the law in this jurisdiction that: (1) in cases of
the examination or the taking of the deposition felony, the accused has the right to be present at every stage of the
trial, inclusive of the arraignment and pronouncement of the There are, for instance, certain rights secured to the individual by the
judgment; (2) where the offense is capital the right of the accused to fundamental charter which may be the subject of waiver. The rights
be present at every stage of the trial is indispensable and cannot be of an accused to defend himself in person and by attorney, to be
waived; (3) even in felonies not capital, if the accused is in custody, informed of the nature and cause of the accusation, to a speedy and
his right to be present at every stage of the trial is likewise public trial, and to meet the witnesses face to face, as well as the
indispensable and cannot be waived; (4) where the offense is not right against unreasonable searches and seizures, are rights
capital and the accused is not in custody his presence is guaranteed by the Constitution. They are rights necessary either
indispensable only: (a) at the arraignment; (b) at the time the plea is because of the requirements of due process to ensure a fair and
taken, if it be one of guilt; and (c) at the pronouncement of judgment. impartial trial, or of the need of protecting the individual from the
The Court looted the rationale of Diaz v. United States as basis of its exercise of arbitrary power. And yet, there is no question that all of
ruling, thus: têñ.£îhqw⣠these rights may be waived. 42 Considering the aforecited provisions
... the court was called upon to pass on the of the Constitution and the absence of any law specifically requiring
question whether the provision in section 5 of his presence at all stages of his trial, there appears, therefore, no
the Philippine Civil Government Act, securing to logical reason why petitioner, although he is charged with a capital
the accused in all criminal prosecutions 'the right offense, should be precluded from waiving his right to be present in
to be heard by himself and counsel,' makes his the proceedings for the perpetuation of testimony, since this right,
presence indispensable at every stage of the like the others aforestated, was conferred upon him for his protection
trial, or invests him with a right which he is and benefit.
always free to assert, but which he also may It is also important to note that under Section 7 of Rule 119 of the
waive by his voluntary act. After observing that Revised Rules of Court (Deposition of witness for the prosecution)
an identical or similar provision is found in the the "Failure or refusal on the part of the defendant to attend the
constitutions of the several states of the examination or the taking of the deposition after notice hereinbefore
American Union, and that its substantial provided, shall be considered a waiver" (Emphasis supplied.)
equivalent is embodied in the 6th Amendment to Similarly, Presidential Decree No. 328 expressly provides that " ...
the Constitution of the United States; that it is the failure or refusal to attend the examination or the taking of the
the right which these constitutional provisions deposition shall be considered a waiver." (Emphasis supplied).
secure to persons accused of crime in that It is for the foregoing reasons that the writer of this opinion voted
country that was carried here by the with the six (6) Justices who ruled on the full right of petitioner to
congressional enactment; and that, therefore, waive his presence at said proceedings..
according to a familiar rule, the prevailing Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio,
course of decision there may and should be Muñoz Palma and Aquino) are of the view that petitioner may waive
accepted as determinative of the nature and his right to be present at all stages of the proceedings while five (5)
measure of the right here, Justice Van Devanter Justices (Castro, Makasiar, Esguerra, Concepcion Jr. and Martin)
speaking for the court, said: 'As the offense in are in agreement that he may so waive such right, except when he is
this instance was a felony, we may put out of to be identified, the result is that the respondent Commission's Order
view the decisions dealing with this right in requiring his presence at all times during the proceedings before it
cases of misdemeanor. In cases of felony our should be modified, in the sense that petitioner's presence shall be
courts, with substantial accord, have regarded it required only in the instance just indicated. The ruling in People v.
as extending to every stage of the trial, inclusive Avanceña 43 is thus pro tanto modified.
of the empaneling of the jury and the reception Finally, it is insisted that even if said orders and decrees were valid
of the verdict, and as being scarcely less as martial law measures, they have ceased to be so upon the
important to the accused than the right of trial termination of the emergency. In Aquino, et al. v. Enrile, et al., supra,
itself. And with like accord they have regarded We adverted to the fact that the communist rebellion which impelled
an accused who is in custody and one who is the proclamation of martial law has not abated. In the absence of
charged with a capital offense as incapable of any official proclamation by the President of the cessation of the
waiving the right; the one, because his presence public emergency, We have no basis to conclude that the rebellion
or absence is not within his own control; and the and communist subversion which compelled the declaration of
other because, in addition to being usually in martial law, no longer pose a danger to public safety.
custody, he is deemed to suffer the constraint It is important to note here that an accused being tried before a
naturally incident to an apprehension of the military tribunal enjoys the specific constitutional safeguards
lawful penalty that would follow conviction. But, pertaining to criminal trials. Thus, he is entitled to be heard by
where the offense is not capital and the accused himself and counsel, 44 to be informed of the nature and cause of the
is not in custody, the prevailing rule has been, accusation, 45 to meet the witnesses face to face, to have
that if, after the trial has begun in his presence, compulsory process to secure the attendance of witnesses and the
he voluntarily absents himself, this does not production of evidence in his behalf, 46 and to be exempt from being
nullify what has been done or prevent the a witness against himself. As in trial before civil courts, the
completion of the trial, but, on the contrary, presumption of innocence can only be overcome by evidence
operates as a waiver of his right to be present, beyond reasonable doubt of the guilt of the accused. 47 These
and leaves the court free to proceed with the tribunals, in general, are "bound to observe the fundamental rules of
trial in like manner and with like effect as if he law and principles of justice observed and expounded by the civil
were present.' 39 judicature." 48 Section 11 of the Manual for Courts-Martial specifically
In Avanceña, the issue was whether the defendant charged with an provides that the "rules of evidence generally recognized in the trial
offense which is not capital had impliedly waived his right to be of criminal cases in the courts of the Philippines shall be applied by
present at his trial, because of his failure to appear in court at the courts-martial." 49 This is applicable to trials in the military
trial of his case. commission .50 There is, therefore, no justification for petitioner's
Under the present Constitution, however, trial even of a capital contention that such military tribunals are concerned primarily with
offense may proceed notwithstanding the absence of the accused. It the conviction of an accused and that proceedings therein involve
is now provided that "after arraignment, trial may proceed the complete destruction and abolition of petitioner's constitutional
notwithstanding the absence of the accused provided that he has rights. This is not, however, to preclude the President from
been duly notified and his failure to appear is unjustified." 40 considering the advisability of the transfer of these cases to the civil
On the basis of the aforecited provision of the Constitution which courts, as he has previously announced.
allows trial of an accused in absentia, the issue has been raised IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered
whether or not petitioner could waive his right to be present at the dismissing the petitions for prohibition with preliminary injunction and
perpetuation of testimony proceedings before respondent setting aside the temporary restraining order issued on April 8, 1975,
Commission.. with costs against petitioner.
As a general rule, subject to certain exceptions, any constitutional or Aquino, Concepcion, Jr. and Martin, JJ., concur.1äwphï1.ñët
statutory right may be waived if such waiver is not against public Makalintal, C.J, took no part.
policy. The personal presence of the accused from the beginning to
the end of a trial for felony, involving his life and liberty, has been
considered necessary and vital to the proper conduct of his defense.
The "trend of modern authority is in favor of the doctrine that a party Separate Opinions
in a criminal case may waive irregularities and rights, whether
constitutional or statutory, very much the same as in a civil case."41 CASTRO, J., concurring and dissenting:
I am constrained to write this concurring and dissenting opinion and at the same time professes absolute lack of faith in the
because (a) although I substantially agree with Justice Felix Q. Judiciary, does this mean that the petitioner is so magically endowed
Antonio's forthright discussion and learned resolution of the that only he and he alone is capable of meting out justice in this
inescapable issues posed by the petition and the supplemental country? The over-all workload of all the courts in the Philippines has
petitions filed by the petitioner Benigno S. Aquino, Jr., I disagree with increased immeasurably. If this does not indubitably indicate the
his approbation of the "right" of total waiver claimed by the petitioner, faith of the people in the Judiciary then I do not know what does. If
and (b,) I desire to express my views on matters which, although in a the petitioner does not share the faith of the people in the Judiciary,
sense peripheral and not squarely in issue, are nevertheless cogent we must look to reasons other than the ostensible ones for his
and pertinent to the central issues at bar. irresponsible and reprehensible statements. To my mind these
1. At the threshold, I must state that I voted to deny the petitioner reasons are obvious and need not be belabored.
Aquino's motion to withdraw his petitions and all related motions and 5. On the matter of whether the petitioner has what he claims is a
incidents, for the self-same reasons that impelled my vote to deny "right of total waiver" of his presence in the proceedings before the
Jose W. Diokno's motion to withdraw his petition in the Martial Law military commission, I confess that the basis for such view escapes
cases (Aquino, et al. vs. Enrile, et al., L-35546, and other allied me. The trouble with the advocacy of the so-called "right" of total
cases.*) Like in the cases just adverted to, there are in the case at waiver is that it places undue and inordinate stress on the "rights" of
bar considerations and issues of transcendental and grave import, the individual and completely refuses to recognize that the State,
and I apprehend that great disservice may be caused to the national too, has its own rights and duties. I do not believe that there can be
interest if these are not resolved on the merits. any debate on the right and obligation of the State to administer
2. I am hard put to understand how and why the petitioner's justice properly. Part and parcel of this right and obligation is the
counsels conjured the argument that under the Bill of Rights the "due right of a tribunal, whether judicial or executive, to satisfy itself that
process" accorded to persons accused in criminal cases the person whom it may later convict upon the evidence is the
contemplates only judicial process. This argument runs squarely accused pointed to by the eye-witnesses for the prosecution.
athwart the time-honored doctrine in the Philippines as well as in the Because if the witnesses point to X, and the accused actually
United States — a doctrine that the petitioner's counsels must surely happens to be Y, the court of tribunal has, in conscience, no
be aware of that due process in criminal trials may comprehend not recourse but to absolve Y. For, the proper identification of the
only judicial process, but also executive process (and even accused is the very quintessence and sine qua non of any valid
legislative process in the proper cases). prosecution, is the very fundamental of due process in any criminal
3. Corollarily to this contention of the petitioner, the further thesis is trial. Surely, if the commission is to discharge its burden
advanced that his trial by a military commission denies him due conscientiously, it cannot be denied the right to determine for itself
process because he is deprived of the right of appeal. It seems the proper identity of the person who stands accused before it. This
rather elementary that the right of appeal, unless the Constitution right has absolute primacy over what the petitioner calls his "right" of
expressly guarantees such right, is merely statutory and may be total waiver of his presence.
withdrawn, modified or altered at any time — a principle that his Of course, in this particular case of the petitioner, it could be argued
counsels know only too well. Even an appeal to an intermediate that he is a national figure and therefore is known by everybody. But
collegiate appellate court or to the Supreme Court is not a right I challenge the correctness of this postulate. For can it not possibly
under the Constitution unless an explicit guarantee can be found in happen that a member of the trying tribunal may have heard of
the words thereof. Benigno S. Aquino, Jr., the former Governor of Tarlac and former
And as far as appeal is concerned, it is apparent that the petitioner's Senator, but may have never actually seen him before? Identification
counsels are not aware of the number of the levels of review of a is essentially one of perception of sight and not a process of
decision of conviction by a military commission in our jurisdiction. inference or strained deductive reasoning. It may be correct to infer
Four levels of review (equivalent to four levels of automatic appeal) from the declarations in court of witnesses for the prosecution who
are provided, namely: the first review by the Staff Judge Advocate of refer to a Benigno S. Aquino, Jr., former Governor of Tarlac and
the Chief of Staff (who appoints the military commission); former Senator, that the person referred to is the petitioner, but this
the second review by a Board of Review of not less than three senior cannot thereby foreclose the petitioner from later challenging the
officers, of the Judge Advocate General's Service; the third review validity of his conviction (if he is convicted) upon the ground that not
by a Board of Review of not less than three senior officers of the one of the prosecution witnesses pointed to him as the indicted
Judge Advocate General's Service; the third review by a Board of Benigno S. Aquino, Jr.
Military Review acting for the Secretary of National Defense and My understanding of the provisions of the new Constitution on
consisting of not less than two lawyer-officers of at least field rank; waiver of presence in criminal proceedings is that such waiver may
and the fourth and final review by the Secretary of Justice for the be validly implied principally in cases where the accused has jumped
President of the Philippines as Commander-in Chief. These four ban or has escaped, but certainly may not he asserted as a matter of
reviews are compulsory; none of them may be bypassed or absolute right in cases where the accused is in custody and his
dispensed with. And even if the Staff Judge Advocate, the Board of identification is needed in the course of the proceedings.
Review, and the Board of Military Review all concur in the judgment And what of the reviews to be conducted by the Staff Judge
of conviction and the sentence imposed by the military commission, Advocate of the Chief of Staff, the Board of Review, the Board of
the Secretary of Justice may yet, if in his opinion the evidence so Military Review, and the Secretary of Justice? Is it not the bounden
warrants, recommend to the President the acquittal or exoneration of duty of these individuals, singly and collectively, to satisfy
the accused. So that from arraignment by a military commission to themselves beyond cavil at the outset of review that the person
final action by the President, a minimum of thirteen presumptively convicted by the commission is the accused named in the charges
responsible individuals in different capacities are involved in the and that he was identified properly by the eyewitnesses for the
entire process: a military commission of not less than five members, prosecution?
a Staff Judge Advocate, a Board of Review of not less than three Thus, I voted for qualified waiver: the accused may valve his
officers a Board of Military Review of not less than two officers, the presence in the criminal proceedings except at the stages where
Secretary of Justice, and the President. I cannot accept the identification of his person by the prosecution witnesses is
petitioner's inferential conclusion that all the twelve persons involved necessary. I might agree to the proposition of "total" waiver in any
(before the President takes final action) can be dictated to, assuming case where the accused agrees explicitly and unequivocally in
that the President is minded to influence them. The petitioner may writing signed by him or personally manifests clearly and indubitably
not be aware what the military commission now existing have in open court and such manifestation is recorded, that whenever a
acquitted many who have been accused before them, and that prosecution witness mentions a name by which the accused is
convictions have been reversed or modified upon the known, the witness is referring to him and to no one else.
recommendation of the reviewing officers and boards of officers What is disturbing is that because six Justices voted for "total"
4. The petitioner makes the indictment that the military tribunals and waiver and only five Justices voted for qualified waiver, the judges of
the entire Judiciary are, to paraphrase him, well under the thumb of all inferior courts would now be at a loss to determine, in any given
the President of the Philippines. I quote his exact words: "Mr. Marcos situation, whether to take the "total" waiver position or follow the
is the single genius, composing and directing all the proceedings, qualified waiver doctrine — unless it be conceded that because the
whether in the military tribunal or in the civil courts... [and] has Court is divided and the "total" waiver theory fails to command the
destroyed the independence of the civil courts..... Trials by civil assent of eight Justices, the qualified waiver theory must be
courts would still be a travesty of justice...." This accusation is regarded as doctrinal law. Otherwise, each judge should be left to
doubtless very serious, but I say that it is a gravely irresponsible determine, according to his conscience and the milieu of each case,
one. To declare or imply that the entire Judiciary, from the Chief what to do in order to administer justice properly.
Justice and Associate Justices of the Supreme Court down to the Acquittal on a mistaken identity basis has occurred in numberless
last municipal judge, is under dictation by the President, is an instances all over the world. While it is true that the Rules of Court
indictment that can come only from a person who does not know provide that identity of name means identity of person, it is a well-
whereof he speaks. If the petitioner has no faith in military justice known fact in this country that there are names so common that
many persons carry the same name. Especially considering that our cognizance of by a military commission, ignores one inescapable
population has burgeoned considerably, no one can deny that there basic fact, and this is that the crimes imputed to him are among the
are many persons by the name Jose Cruz, many by the name Jose crimes that gave cause for the institution of martial rule; (5) the
Santos, many by the name Jose Reyes, ad infinitum** (which is argument of the petitioner that the Constitution, in providing for due
good enough reason why the President of the Integrated Bar, retired process in criminal trials, can mean only trial by judicial courts, not
Supreme Court Justice Jose B.L. Reyes, has found it necessary to only demonstrates the petitioner's misunderstanding or misreading
put the letters "B" and "L" between the names "Jose" and "Reyes," of military traditions in civilized countries throughout the ages but as
and why I have used the name "Ruiz" in my name in order that my well foists an interpretation of the Constitution not warranted by its
identity will not be confused with those of two other persons who are phraseology ; (6) well-imbedded in our jurisprudence is the
known by the name Fred Castro). recognition that justice can be administered fairly by military
6. During the deliberations on this case, there came to the attention tribunals; and (7) the power of the Supreme Court to review death
of the Court rumors and amorphous bits of news to the effect that sentences does not include the power to review death sentences
the petitioner was on the verge of death because of his "hunger imposed by military tribunals.
strike." Curiously and oddly enough, none of those who purveyed the 10. In view, of all that I have above stated, and especially in the light
rumors ever thought of submitting to the Court a statement from the of my considered opinion that the military commissions now in
Secretary of National Defense as to the state of health of the existence have jurisdiction to try civilians, judicial restraint effectively
petitioner. And because of this, there was a feeling on the part of the precludes me from expressing my views on whether the President
members of the Court that they were being stampeded into deciding should transfer the case of the petitioner to a civil court for trial.
this case on the basis of the petitioner's "hunger strike." As far as I Finally, it is my abiding conviction that the President will do, within
am concerned, I did not think it advisable for the Court to request the the intendment of his sacred oath of office, what he believes is just
Secretary of National Defense for such statement, because I for the petitioner and, logically, also for everyone else similarly
assumed that if the petitioner were indeed in a state where his death situated.
was imminent, his counsels would have come forward with alacrity to Makasiar, Esguerra, Concepcion, Jr. and Martin, JJ.,
inform the Court accordingly and this, inspite of the petitioner's concur.1äwphï1.ñët
motion to withdraw which, at the time the rumors reached the Court, FERNANDO, J., concurring and dissenting:
was still unresolved. To argue that because the petitioner had As was made, clear at the opening of the learned and
already filed his motion to withdraw there was no more need for his comprehensive, ably-penned decision of the Court through Justice
counsels to give the Court information regarding his supposedly Antonio, I am for the granting of petitioner's motion for withdrawal.
deteriorating health, is to assume erroneously that the Court would My brethren had thought otherwise and consequently did proceed to
grant his motion. discuss the merits of the issues raised. While again I would vote for
7. I here make of record my considered view that the petitioner has the transfer of the criminal charges against petitioner to civil courts, it
deliberately and calculatingly tried to utilize the Court as a forum for does not mean that I am in total disagreement. Nonetheless, there
his propaganda. First he said he preferred trial by the civil courts to may be a need for a brief expression of opinion on my part as a
trial by any military tribunal, but in the next breath he denounced the mere formal concurrence on some of the points discussed may for
civil courts as "lacking in independence." Then he filed a petition with some imply an identity of thought lurking dormant and concealed. It
the Court to stop the proceedings before the military tribunal; shortly is better to avoid any misunderstanding. Moreover, at least to my
thereafter he moved to withdraw it, saying that his remedies had mind, it would make even more apparent the truth that there can be
come "too little and too late." Next he renounced the services of all no such thing as complete objectivity in constitutional law, a field
his counsels, civilian and military, yet his lawyers continued to file where there are no absolutes, every constitutional question involving
pleadings in his behalf with the Court, visit him in his quarters, and a balancing of competing values. It may also serve, hopefully, to
assist him in the perpetuation proceedings before the military illustrate that orthodoxy in juridical thought is not per se antithetical
commission. Then his lawyers filed a manifestation with the Court to the professed aims of an innovative legal order. It gives me an
claiming that the military commission's decision to compel him to opportunity likewise to acknowledge the neat and logical pattern to
appear was for the purpose of "dehumanizing and humiliating" him; the decision that strengthens its plausibility. The principles of law
but when the Court, acting on his manifestation, restrained the announced flow from the basic premise of the stern necessities of
military commission, he directed his lawyers to withdraw his petitions martial law. What bothers me is that from the standpoint of tried and
before the Court, including his prayer for a temporary restraining tested concepts in constitutional law, there would seem to be a need
order. He informed the newspapers that his "hunger strike" was a for further refinement as to the scope of such doctrines and for
protest against his compelled presence in the perpetuation clarifying differentiation. That, for me at least, would have been
proceedings, but when six Justices of the Court voted for his "right" desirable. The apprehension is entertained that as worded in a
to "total" waiver of his presence, he announced that he would attend rather all-encomassing manner, they may yield the impression of a
the proceedings. All of these developments could indeed be read to total surrender to the pressure of events and the demands of the
mean one or both of two things: that his "hunger strike" was, after all, times. Candor though compels the admission that in the final
perhaps not quite what it purported to be and/or that he has been analysis juridical theories cannot afford to be insensible to political
trifling and continues to trifle with the military commission and with and social realities. Now for the grounds of my concurrence and my
the Court. dissent.
8. If I were the petitioner, and I know I am innocent, there would 1. In the belief that petitioner's motion to withdraw should be
appear to be no reason for me not to face the proceedings frontally granted, I am compelled to dissent. This is with due recognition of
and establish my innocence. This is not to imply that the petitioner is the principle that the Court is vested with discretion to grant or refuse
guilty of the charges; it is merely to stress that his behavior is hardly such a plea. This notwithstanding, I am fully persuaded that the
what perceptive people would expect from a man who professes more appropriate response is one of acceding to petitioner's prayer
innocence. If it is propaganda that is in the back of the head of the that all cases filed on his behalf in this Court be terminated. The
petitioner, I would think that the highest-quality propaganda in his assumption must be that before he did arrive at such a conclusion,
favor is to establish his innocence of the charges soonest possible. he had weighed with care and circumspection all the relevant
9. I would like to add my own emphasis to the opinion written by aspects of the situation. It could very well be that he was prompted
Justice Antonio, by stating in capsule my considered views: (1) the to take such a move to avoid further anxiety and worry on his part,
President of the Philippines, by virtue of his proclamation of martial considering that the ultimate outcome could belie expectations and
law (in sensu strictiore), which the Court has already upheld as frustrate hopes. At any rate, with his mind thus made up and without
within the ambit of his powers under the 1935 and 1973 any compelling reason, in my mind, for the Court to keep the case in
Constitutions, has likewise the power to organize military the docket, the discretion should be exercised in his favor. Nor does
commissions in order to carry out the objectives and purposes of the fact that he used rather harsh language in the reasons given by
martial rule; (2) the military commissions created by authority of the him for his motion of withdrawal militate against his plea. There must
pertinent presidential decrees are legal as well as constitutional, as be more understanding shown for the state of his physical and
the said presidential decrees have been expressly made part of the mental health after this long period of confinement, and of late of his
law of the land by the transitory provisions of the 1973 Constitution; depriving himself of the daily sustenance. What is more, the cutting
(3) by tradition and history as well as by the explicit provisions of the edge of his sharp and pointed words may be blunted by the
said valid presidential decrees, the military commissions so created performance of this Court, which in the ultimate analysis is the
have jurisdiction to try civilians for offenses necessarily connected ultimate criterion as to whether or not it has adequately discharged
with the objectives of martial law, whether these offenses were its responsibilities or lived up to the trust reposed in it. The judgment
committed prior to the institution of martial rule or subsequent is for the entire constituency of informed and concerned citizens, not
thereto and this inspite of the fact that the civil courts are open and of petitioner alone. As for any individual Justice, I would assume that
functioning; (4) the claim of the petitioner that because the offenses what matters most is the verdict of his conscience.
with which he is charged were, in point of time, allegedly committed 2. Now as to the nature of my concurrence which has to be further
prior to the declaration of martial law they may not be taken qualified. Right at the outset, may I make clear that I join my
brethren only to the extent that the conclusion arrived at by them harm."12 It does appear to me then, and this I say with due respect,
conforms to what I had previously expressed in my separate that it is a rather forced interpretation to extract from the above
opinions in Aquino v. Ponce Enrile1 and Aquino v. Commission on explicit declaration of Justice Holmes the meaning that military
Elections.2 It follows that where the opinion of the Court reflects the tribunals are vested with jurisdiction over civilians. What was
stand I took, I am in agreement. More specifically, on the question of involved was a detention, not a trial. Under the view I entertain
the scope of the competence of a military commission, I would that Duncan v. Kahanamoku supplies the applicable principle under
predicate my vote on the constitutional provision that affixes to the 1935 Constitution, the citations
General Orders Nos. 8, 12, and 39 the status of being "part of the from Winthrop and Fairman found in the opinion of the Court are, for
law of the land."3 With due recognition of the vigor with which me, less than persuasive.13 What compels concurrence on my part,
counsel for petitioner had pressed the point that such a character to repeat, is "the law of the land" section found in the Transitory
cannot be impressed on the aforesaid general orders if found in Provisions. Absent that provision, I would be unable to yield to the
conflict with the present Constitution, I still find difficulty in according conclusion reached by my brethren on the question of jurisdiction.
complete acceptance to such a view. To do so in my opinion would 4. The recognition implicit in the above constitutional precept as to
mean closing one's eyes to what was intended by the 1971 the competence of a military commission to conduct criminal trials of
Constitutional Convention insofar as it did provide for the continued certain specified offenses, to my mind, carries with it the duty to
existence of a military commission with such powers as were then respect all the constitutional rights of an accused. It is from that
exercised. This is not to imply though that in no case may a perspective that a discussion of the due process guarantee gains
Presidential proclamation, order, decree, or instruction be significance. It has a connotation both substantive and procedural.
challenged in appropriate suits for lack of conformity to a specific As to the latter aspect, it is true that it has at its core, to follow the
provision found in the present Constitution. classic formulation of Webster, the requirement of a hearing before
3. It is to be stressed further that were it not for the above mandate condemnation and a process of rational inquiry, but it has a much
of the Transitory Provisions, the submission of petitioner as to a wider radiation extending to all the legal safeguards enjoyed by a
military commission being devoid of jurisdiction over civilians elicits person indicted for an offense. So it has come to be in the United
approval. The controlling principle, to my mind, is that supplied in the States, where it is deemed to include the right to be free from
opinion of the United States Supreme Court in Duncan v. unreasonable searches and seizures and to have excluded from
Kahanamoku,4 a decision impressed with the greatest relevance criminal trials any evidence illegally seized; 14 the right to be free of
inasmuch as it interpreted the specific section found in the Hawaiian compelled self-incrimination, 15 the right to counsel, 16 the right to a
Organic Act,5 which was also a feature of the Philippine Autonomy speedy 17 and public18 trial, to confrontation of opposing
Act,6 the source of the martial law provision in the 1935 witnesses,19 to compulsory process for obtaining witnesses,20 the
Constitution.7 As set forth in the Duncan opinion penned by Justice right to a jury trial, 21 and the right against double jeopardy.22 Such an
Black: "Our question does not involve the well established power of approach is not uncongenial in our jurisdiction.23 A related matter is
the military to exercise jurisdiction over members of the armed the question of due process and preliminary investigation. I have my
forces, those directly connected with such forces, or enemy reservations as to the tone of certitude in the opinion of the court
belligerents, prisoners of war, or others charged with violating the concerning the latter's being bereft of any constitutional significance.
laws of war. We are not concerned with the recognized power of the It was the ruling in People v. Sierra24 that "the principle
military to try civilians in tribunals established as a part of a uninterruptedly adhered to [is] that only where an accused is held to
temporary military government over occupied enemy territory or answer a criminal offense in an arbitrary or oppressive manner is
territory regained from an enemy where civilian government cannot there a disregard thereof. The requirement of the proceeding not
and does not function. For Hawaii since annexation has been held being unjust or unreasonable must be met. This is not to rule out
by and loyal to the United States. Nor need we here consider the cases where such infirmity could be predicated on a showing that
power of the military simply to arrest and detain civilians interfering the disregard of this procedural safeguard did infect the prosecution
with a necessary military function at a time of turbulence and danger with unfairness. In that sense, what was held in People v. Monton as
from insurrection or war. And finally, there was no specialized effort to such a failing nullifying the proceeding because of the due
of the military, here, to enforce orders which related only to military process protection could still be conceivably relied
functions, such as, for illustration, curfew rules or blackouts."8 I see upon." 25 Thus we come to what for me is the crucial issue posed,
nothing in Moyer v. Peabody 9 that in any way runs counter to the labeled "the principal question" in the memorandum of petitioner. He
above summary of the scope of the power of military tribunals. That would invoke the highly-prized ideal in adjudication announced
was an action, as pointed out by Justice Holmes, "brought by the in Gutierrez, likewise a due process requirement, that a party to a
plaintiff in error against the former governor of the state of Colorado, trial "is entitled to nothing less than the cold neutrality of an impartial
the former adjutant general of the national guard of the same state, judge."26 His fears, not devoid of plausibility, proceed from
and a captain of a company of the national guard, for an respondent Commission having been "created by the President's
imprisonment of the plaintiff by them while in office." 10 Then came Order and subject to his control and direction" being unable to ignore
this portion of the opinion: "The complaint alleges that the his characterization that the evidence against petitioner was "not
imprisonment was continued from the morning of March 30, 1904, to only strong [but] overwhelming."27 It is to that implacable tenet of
the afternoon of June 15, and that the defendants justified under the objectivity and neutrality, one of constitutional dimension, that appeal
Constitution of Colorado, making the governor commander in chief is made. For Gutierrez has been followed subsequently in an
of the state forces, and giving him power to call them out to execute unbroken line of decisions with an impressive concord of
laws, suppress insurrection, and repel invasion. It alleges that his opinion.28 That for petitioner is to buttress a stand that mirrors the
imprisonment was without probable cause, that no complaint was realities, to reinforce the solidity of his position. For was it not
filed against the plaintiff, and that (in that sense) he was prevented Stoessinger who pointed out that there may be at times a tendency
from having access to the courts of the state, although they were difficult to resist in subordinate military agencies to view matters in
open during the whole time but it sets out proceedings on habeas the light supplied by previous pronouncements of those higher up in
corpus, instituted by him before the supreme court of the state, in the ranks and to respond to situations less on the basis of empirical
which that court refused to admit him to bail and ultimately evidence but more on that of conformity to a position officially taken.
discharged the writ. 35 Colo. 154, 91 Pac. 738, and 35 Colo 159, 12 I do not have to go that far. There is acceptance on my part that, as
L.R.A. (N.S.) 979, 117 Am. St. Rep. 189, 85 Pac. 190. In those the opinion of the Court states, respondent military commission may
proceedings it appeared that the governor, had declared a county to be trusted to be fair and that at any rate there are still various
be in a state of insurrection, had called out troops to put down the appeals in the offing. Thus there are built-in defenses against any
trouble, and had ordered that the plaintiff should be arrested as a erroneous or unfair judgment. There is, however, this other point to
leader of the outbreak, and should be detained until he could be consider. For the Gutierrez ruling as now interpreted does not only
discharged with safety, and that then he should be delivered to the guard against the reality but likewise the appearance of partiality.
civil authorities, to be dealt with according to law." 11 Plaintiff in error That would argue strongly for the transfer of the trial of the criminal
would hold the Governor liable for his order of detention in the charges against petitioner to civil courts. Nor would he be the only
course of suppressing an insurrection. As the case was dismissed one thereby benefited. Respondent Commission would be spared
on demurrer by the Circuit Court, it was elevated to the United from proceeding with a case where from the start, in view of the
States Supreme Court. In affirming the judgment, Justice Holmes peculiar circumstances, its bona fides had been open to question,
categorically stated: "When it comes to a decision by the head of the although admittedly lacking factual foundation. The President
state upon a matter involving its life, the ordinary rights of individuals likewise would be absolved from any adverse, if unfounded,
must yield to what he deems the necessities of the moment. Public criticism. The greatest gain of course would be for the administration
danger warrants the substitution of execution process for judicial of justice. There is relevance to this excerpt from Palang v.
process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, Zosa:29 "This voluntary inhibition by respondent Judge is to be
328. This was admitted with regard to killing men in the actual clash commended. He has lived up to what is expected of occupants of
of arms; and we think it obvious, although it was disputed, that the the bench. The public faith in the impartial administration of justice is
same is true of temporary detention to prevent apprehended thus reinforced. It is not enough that they decide cases without bias
and favoritism. It does not suffice that they in fact rid themselves of the same fundamental question of whether military tribunals have
pre-possessions. Their actuation must inspire that belief. This is an jurisdiction to try civilians (wherein petitioner was sentenced on
instance where appearance is just as important as the reality. Like March 16, 1973 to death by firing squad, which sentence was
Caesar's wife, a judge must not only be pure but beyond suspicion. affirmed on September 29, 1973 by the President and which has
At least, that is an ideal worth striving for. What is more, there is long been pending decision); and since it is petitioner Aquino's life
deference to the due process mandate."30 Necessarily then, there is and liberty that are at stake, his choice to renounce his own petition
complete acceptance on my part of the thought expressed in the questioning the jurisdiction of respondent military commission to try
opinion of the Court that the President is not precluded from the cases filed against him and the subsequent incidents and to
pursuing further a notion previously expressed by him concerning remove the case from this Court's cognizance should be respected
the possible transfer of the proceedings against petitioner to the civil "regardless of the fact that (one) disagreed with many of his reasons
courts. for so doing" since one "could not escape a sense of irony in this
6. A few words more. It is to be admitted that in coping with the Court's turning down the plea to withdraw .... and then ruling
urgencies of the times, in accordance with what is ordained by the adversely to him on the merits of his petition." It may be added that
fundamental law and thus have its promise fulfilled, this Court is since the majority who voted to deny the withdrawal motion numbers
compelled to enter a domain much less clearly mapped out than only seven out of ten Justices taking part in the deliberations as of
before. It has to find its way as best it can with the light supplied by the date of issuance of the Court's Resolution of April 25, 1975
applicable precedents and the promptings of reason at times which denied the motion3 the majority opinion would fall short of the
rendered obscure by the clouds of the emergency conditions. required number of eight Justices to render a decision on the
Moreover, there must be an awareness that the complexities of an merits.4 The Solicitor General's grounds for opposing withdrawal are
era may not yield to the simplicities of a constitutional not persuasive. In his first opposition of April 14, 1975 where he
fundamentalism as well as of the pitfalls of merely doctrinaire notes that petitioner "has chosen to dramatize his protest by staging
interpretations. It cannot apply precepts with inflexible rigidity to fast- a hunger strike. Petitioner's motion is thus silently eloquent in its
changing situations. The notion of law in flux carries it far indeed avoidance of the reasons for (withdrawal)," his prayer that "if the
from a fixed mooring in certainty. There must be, it cannot be petitioner's motion is granted, it should be with prejudice," is
denied, greater sensitivity to the shifts in approach called for by the inconsistent with his posture that the petition is premature and with
troubled present. Nonetheless, to paraphrase Cardozo, care is to be the fact that the charges against petitioner are still pending
taken lest time-tested doctrines may shrivel in the effulgence of the reinvestigation as ordered by the President. In his second opposition
overpowering rays of martial rule. There must be an effort to remain of April 16, 1975, he avers that the Government "seeks only to
consistent with the old although relevant to the new. It is my view present the evidence supporting the charges of murder, illegal
that thereby there is fidelity to the concept of the Constitution not possession of firearms and subversion against the petitioner," and if
only as a broad charter of powers to resolve conflicting issues and this be so, petitioner's withdrawal of his petition at bar precisely
social problems, a means of ordering the life of the nation in times of clears the way of all judicial obstacles for the prosecution to do so.
normalcy as well as of crisis, but also as a citadel of civil liberties. Petitioner's withdrawal should be properly granted in pursuance of
TEEHANKEE, J, dissenting: the established principle that the judicial power is exercised only
This opinion for the granting of petitioner's withdrawal motion and in when necessary for the resolution of an actual case and controversy,
view of its denial, for the granting of the writ of prohibition against particularly in view of the respondents' stand in their answer that the
respondent military commission as prayed for in the petition, is petition has been prematurely filed.
issued pursuant to the Court's Resolution of April 25,1975, which Judicial abstention then would provide the Court with time and
ruled as follows: têñ.£îhqw⣠opportunity to ponder and deliberate on the basic constitutional
... The Court, by a vote of seven to three, questions involved and their ramifications which concern inter
Resolved to DENY petitioner's motion for alia the supremacy of civilian authority over the military, the right of
withdrawal of the petition and of all motions and civilians to judicial process as against the executive process of
incidents related thereto. Castro, Barredo, military tribunals, the upholding of Judicial Power as vested by the
Antonio, Esguerra, Aquino, Concepcion, Jr. and Constitution in the Supreme Court and in such inferior courts as may
Martin, JJ., voted to deny the motion; Fernando, be established by law and the recognition of the individual's liberties
Teehankee and Muñoz Palma, JJ., voted to as guaranteed by the Bill of Rights even in a state of martial law.
grant the motion. II. Since the majority has nevertheless resolved to go into the merits
There being no sufficient votes to declare that of the case and the transcendental constitutional issues, a brief
the respondent Military Commission is without statement of the factual background is required for the proper
jurisdiction over the pending criminal cases filed consideration of the issues on the merits.
against the petitioner and that it acted with Petitioner (after having been served on August 11 and 18, 1973 at
grave abuse of discretion in conducting the his detention quarters with copies of the six criminal charges filed
perpetuation of testimony proceedings, the against him with respondent military commission) filed on August 23,
Court Resolved to lift, effective immediately, the 1973 his original petition at bar for prohibition questioning the
restraining order issued on April 8, 1975. jurisdiction of military tribunals in the absence of a state of war or
Teehankee and Muñoz Palma, JJ., voted to belligerency over civilians like him particularly, for civil offenses
maintain the restraining order. allegedly committed before the proclamation of martial law and
On the question of waiver of the presence of the complaining of violation of his constitutional rights in that he was
petitioner in the perpetuation of testimony deprived of due process and the vested right to preliminary
proceedings, Fernando, Teehankee, Barredo, investigation as provided by law and the assistance of counsel with
Antonio, Muñoz Palma and Aquino, JJ., voted in right to cross-examine the witnesses against him.
favor of upholding the petitioner's right of total Petitioner further alleged that the military tribunals are mere
waiver of his presence; Castro, Esguerra, instruments and subject to the control of the President as created by
Concepcion, Jr. and Martin, JJ., voted in favor of him under the General Orders issued by him as Commander-in-
qualified waiver, that is, that the accused could Chief of the Armed Forces of the Philippines,5 and that he had
waive his presence except in the instances already been publicly indicted and adjudged guilty by the President
where such presence is needed for his of the charges in a nationwide press conference held on August 24,
identification by the prosecution witnesses. 1971, following the Plaza Miranda bombing of August 21, 1971 and
The extended reasoned resolution or decision the suspension of the privilege of the writ of habeas corpus under
and the separate extended reasoned concurring Proclamation No. 889 on August 23, 1971.
and/or dissenting opinions will be released next The Court set an urgent preliminary hearing on August 26, 1973 (a
week. Sunday) on the question of whether with its membership then on
Makalintal, C.J., took no part for being a party only nine (9) Justices, it had the required quorum to take cognizance
respondent.; Makasiar. J., is on leave. of the petition. No further action was taken by the Court for following
I. I vote for the granting of petitioner's motion to withdraw his petition petitioner's refusal to participate in the arraignment and trial set on
and all other pending motions and matters. To paraphrase and cite August 27, 1973, the President issued on August 28, 1973
the Chief Justice's reasons in casting a vote for granting a similar Administrative Order No. 355, creating a special five-member
motion for withdrawal of petition filed by former Jose W. Diokno in committee to "reinvestigate the charges against Benigno S. Aquino,
the Habeas Corpus cases1 (which was also defeated for lack of Jr. and others," composed of a retired Supreme Court Justice to be
necessary votes), such withdrawal would not emasculate the "issues designated by the Chief Justice as chairman and four members to
of paramount public interest" that need to be resolved (as invoked by be designated respectively, by the accused-petitioner himself, the
the majority) for they may be duly resolved in the other cases which president of the Integrated Bar of the Philippines, the Secretary of
remain pending, such as the earlier and urgent lead case Justice and the Secretary of National Defense, with the proviso that
of Gumaua vs. Espino and Military Commission No. 22 which raises "should the accused decline to designate a representative to the
committee, the Chief Justice shall designate someone in his stead to determine the existence of "reasonable ground to believe that the
and expressly stating the following premises and objectives: têñ. offenses charged were in fact committed and the accused is
£îhqw⣠probably guilty thereof" and "whether or not petitioner should be held
WHEREAS, Benigno S. Aquino, Jr. and his for trial."7
Counsel have repeatedly complained, orally and On April 1, 1975, this Court, then composed of ten members issued
in writing that the accused has been denied its resolution that it lacked the "necessary quorum to act on
his constitutional right to due process and have petitioner's said urgent motion.
openly questioned the regularity and fairness of On April 7, 1975, petitioner's counsel filed an urgent manifestation
the application to him of the established averring that this Court without a qualified quorum could issue the
procedure sanctioned by law and practice; temporary restraining order prayed for so as not to render the case
WHEREAS, although the Prosecution Staff is assumed to have moot and apprising this Court that after respondent military
conducted a fair and impartial initial investigation, it is desirable to commission had on April 1, 1975 held, consistently with Elago vs.
reassure the accused that he continues to enjoy his constitutional People8 that the perpetuation proceedings are not a part of the trial
right to due process and to remove any doubt whatsoever in the and granted petitioner's request to be returned to his detention
mind of anybody that only after finding a prima facie case against quarters, ruling that he could refuse to be present at the proceedings
him were charges filed; since he had expressly waived his presence, as allowed in P.D. No.
328, it reversed itself at the military prosecutor's instance on April 4,
WHEREAS, it is necessary for the above purpose that a Committee 1975 and now ruled that the perpetuation proceedings are part of the
be created to conduct a re-investigation of said charges to trial and that petitioner must be present at the proceedings (which
demonstrate that everything is being done to insure utmost would take two to three months according to the military prosecutor's
fairness, impartiality and objectivity in the prosecution of the manifestation) and that petitioner must be physically present
charges against the accused and to determine whether really throughout the proceedings even against his will.
there is reasonable ground to believe that the offenses charged Petitioner's counsel further manifested that petitioner's request to
were in fact committed and the accused is probably guilty thereof. respondent military commission to suspend the proceedings for
xxx xxx xxx seven days to allow his counsel time and opportunity to seek
appropriate relief from this Court was summarily denied and
The Committee shall convene immediately, conduct the preliminary petitioner then delivered his statement that if denied this "last basic
investigation in the most expeditious manner and submit its right of a human being ... to be let alone" he would have no
findings to the Secretary of Justice. alternative "but to go on a hunger strike, as a form of silent protest
against a procedure that is intended to humiliate and dehumanize
To prevent a failure or delay of justice, any testimonial evidence me."
presented before the Committee may be used in any proceeding The perpetuation of testimony proceedings thus commenced on
or action before any court or tribunal, civil or military, without need April 4, 1975 and continued on succeeding days with the military
of presenting the witness or witnesses who testified in case such prosecutor presenting as the first state witness Benjamin M. Bie, Jr.
witness or witnesses have died or left the country or become alias Huk Commander Melody, and with petitioner being compelled
unable to testify.6 to be present throughout the proceedings. This witness, Bie together
with another listed witness Benjamin Sanguyo alias Huk
The charges against petitioner and his co-accused were thus Commander Pusa were originally co-accused with petitioner in four
brought back to the stage of preliminary investigation. On August 30, subversion charges but the charges against them were withdrawn
1973, respondent military commission met and ordered that the under a "nolle prosequi" order issued by the Secretary of National
hearing of the cases be postponed indefinitely to await the outcome Defense dated March 15, 1975.
of the re-investigation ordered under the said Administrative Order. On April 8, 1975, the Court ordered the issuance of a temporary
The Secretaries of Justice and of National Defense designated their restraining order enjoining respondent military commission from
representatives. The Chief Justice asked retired Justice J. B. L. further proceeding with the perpetuation proceedings until the matter
Reyes, but the latter on August 31, 1973 declined the designation is heard and further orders and set petitioner's urgent motion and
and also declined as IBP president to designate a representative to related incidents for hearing on April 14, 1975. It was at this hearing
the special committee, on grounds of illegality of the order. Petitioner that petitioner's counsel presented the simple motion to withdraw the
likewise declined to designate his representative. petition and all other pending motions in compliance with the
Petitioner filed on September 5, 1973 his first supplemental petition petitioner's express wish. In compliance with the Court's instruction
to include these developments and to insist that he be granted his at the hearing to inquire into petitioner's reasons for his withdrawal
right to preliminary investigation as prescribed by statutory law, to be motion, his counsel on the next day, April 15, 1975, filed their
conducted by the court of first instance as far as the four charges of manifestation submitting therewith petitioner's 6- page letter of April
subversion under R.A. 1700 are concerned. (On October 31, 1973, 14, 1975 addressed to his wife, mother, relatives and friends stating
Presidential Decree No. 328 amending P.D. No. 39 prescribing the his reasons therefor and for continuing the hunger strike" (he) began
rules of procedure for military tribunals under martial law was issued, ten days ago," inter alia, that "(he) felt that the case (he) had filed
providing for the perpetuation of testimony in cases pending before since 1973 in the Supreme Court had become meaningless; that he
military tribunals.) has decided to "place (his) fate and (his) life squarely in the hands of
No action was taken by the Court on this supplemental petition until ... Mr. Marcos;" that "The meaning and thrust of (his) absence or
July 11, 1974 when it issued a resolution requiring an answer thereto presence, in the proceedings before the military tribunal" and he has
which was filed by the Solicitor General on August 21, 1974. On solemnly vowed to continue his hunger strike as a protest against:
October 31, 1974, petitioner filed a second supplemental petition "1. the trial of civilians before military tribunals . .; 2. the lack of
citing the President's statements to the world press on April 15, 1974 judicial independence . . for as long as our judges remain casuals'. .;
and August 19, 1974 on the "actual removal" of martial law and that 3. the absence of a genuine free press ... ; (and) 4. the further
"technically and legally, martial law was lifted with the ratification of continuance of martial law and its evils and repressions...."
the Constitution last year (1973)." The Solicitor General filed his III. The transcendental character of the constitutional issues raised,
answer thereto on December 11, 1974. dealing as they do with the individual's fundamental liberties as
Memoranda were filed by petitioner's counsel and by the Solicitor guaranteed by the Bill of Rights even in a state of martial law which
General on March 21, 1975 and March 11, 1975, respectively. concededly is "not a military takeover of civil government
Meanwhile, on March 10, 1975, respondent military commission functions" 9 and recognized under the 1973 Constitution to which all
issued ex parte its order granting the prosecution's motion of March have pledged loyalty and wherein we are now called upon to
7, 1975 "to examine and take the deposition of its witnesses" on discharge the judiciary's great burden of defining its constitutional
March 31, and April 1 - 4, 1975 until terminated for perpetuation boundaries, compels my vote on the merits which I cast for the
purposes on the bare allegation that "(T)he petitions of the accused granting of the writ of prohibition prayed for against respondent
Benigno S. Aquino, Jr. pending in the Supreme Court will take time military commission for the reasons and considerations which are
to resolve resulting in the delay of the perpetuation of the hereinbelow respectfully submitted.
testimonies of the prosecution witnesses...." 1. Civilians like petitioner placed on trial for civil offenses under
Petitioner's counsel filed on March 24, 1975 an urgent motion to general law are entitled to trial by judicial process, not by executive
restrain respondent military commission from holding the or military process. Judicial power is vested by the Constitution
perpetuation proceedings on the grounds among others that the very exclusively in the Supreme Court and in such inferior courts as are
issue of its jurisdiction to take cognizance of civil offenses allegedly duly established by law.10 Judicial power exists only in the courts,
committed before martial law by civilians like petitioner was pending which have "exclusive power to hear and determine those matters
with this Court and that such proceedings would "short-circuit" the which affect the life or liberty or property of a citizen." 11
Special Reinvestigating Committee created under Administrative Military commission or tribunals are admittedly not courts and do not
Order No. 355 even before such committee has commenced its duty form part of the judicial system. As further admitted by the Solicitor
General in his answer12, "military commissions are authorized to charged then as well as now before the civil courts which have
exercise jurisdiction over two classes of offenses, whether always remained open and their process and functions
committed by civilians or by military personnel either (a) in unobstructed.
the enemy's country during its occupation by an army and while it The Solicitor General's contention that military tribunals have
remains under military government or (b) in the locality, not within "competence to try civil crimes relating to the causes justifying the
the enemy's country, in which martial law has been established by proclamation of martial law"19 in a veiled reference to the subversion
competent authority. The classes of offenses are (a) violation of charges against petitioner does not meet the essential requirement
the laws and customs of war and (b) civil crimes, of the existence of overpowering necessity or emergency to justify
which because the civil courts are closed or their functions the trial of petitioner, a civilian, for the said civil offenses by
suspended or limited, cannot be taken cognizance of by the ordinary respondent military commission.
tribunals." On the contrary, the President's issuance of Administrative Order
Since we are not enemy-occupied territory nor are we under a No. 355 on August 28, 1973 for the reinvestigation of the charges
military government and even on the premise that martial law against petitioner by a non-military special committee establishes
continues in force, the military tribunals cannot try and exercise per se that no serious grounds of overpowering necessity or
jurisdiction over civilians for civil offenses committed by them which considerations of national security or emergency stand in the way of
are properly cognizable by the civil courts that have remained open recognizing petitioner's right to a civilian trial should the results of the
and have been regularly functioning.13 In the leading case of Duncan civilian reinvestigation prove adverse to him.
vs. Kahanamoku,14 the U.S. Supreme Court held in setting aside the As stated by the present Judge Advocate General in his treatise on
prison sentences imposed on two civilians by military tribunals that martial law, "Necessity limits both the extent of powers that may be
the placing of Hawaii under martial law (after the Japanese Pearl exercised under martial law, and the duration of its exercise. No life
Harbor attack on December 7, 1941) under the Hawaiian Organic may be taken, no individual arrested or confined, or held for trial, no
Act15 did not include the power on the part of the military governor to property destroyed, or appropriated, no rights of the individual may
supplant civilian laws by military orders and to supplant civil courts be curtailed or suspended except where necessity justifies such
by military tribunals, where conditions were not such as to prevent interference with the person or the property. Any action on the part
the enforcement of the laws by the courts. of the military that is not founded on the reasonable demands of
The late Justice Frank Murphy in his concurring opinion therein necessity is a gross usurpation of power, illegal, unjustified, and
repudiated the government's appeal to abandon the "open courts" improper. The broad mantle of martial law cannot cover acts illegal
rule on the alleged ground of its unsuitability to "modern warfare because not justified by necessity, nor proper under the
conditions where all the territories of a warring nation may be in circumstances. This principle is based not only upon the
Combat zones or imminently threatened with long range attack even fundamental precepts of constitutionalism, but rests on sound
while civil courts are operating" as seeking "to justify military reason — that where the action of the matter is not necessary for the
usurpation of civilian authority to punish crime without regard to the public ends of the state they are illegal, and the mere
potency of the Bill of Rights," and observing that "Constitutional fact that martial law exists will not be a ground for their
rights are rooted deeper than the wishes and desires of the military." justification."20
And in Toth vs. Quarles16 the U.S. Supreme Court further stressed 3. Petitioner may not be deprived of his constitutional right to due
that "the assertion of military authority over civilians cannot rest on process by means of the proceedings instituted against him before
the President's power as Commander-in-Chief or on any theory of respondent-military commission, viz:
martial law." (a) The summary ex parte investigation by the chief prosecution staff
Thus, the President has filled up vacancies in the judiciary and of the JAGO of the charges filed against him deprived him of his
"allayed effectively the fears expressed during the initial days of right to be informed of the charges against him and of his right to
martial law that the rule of the military would prevail because other counsel as expressly recognized now by section 20 of the Bill of
countries under martial law had dispensed with civilian courts of Rights of the 1973 Constitution.21
justice" and stressed the supremacy of the Constitution at the 38th (b) he would be deprived of his vested statutory right to a preliminary
anniversary rites of the AFP when he told the Armed Forces that investigation of the subversion charges against him before the
"The military is the force that enforces the law, but the civil proper court of first instance as required under section 5 of the Anti-
government is the ruling power in our country," and that "we have Subversion Act, Republic Act 170022 and of the other charges
stuck to the Constitution. We have pledged loyalty to that against him before the proper civilian officials and to confront and
Constitution."17 cross-examine the witnesses against him under Republic Act 5180;
2. Even assuming that military tribunals could validly exercise (at the least, the special reinvestigating committee created under
jurisdiction over offenses allegedly committed by civilians not Administrative Order No. 355 should be activated in order to
withstanding the absence of a state of war or belligerency and the discharge its assigned task of conducting the preliminary
unimpaired functioning of the regular courts of justice, such investigation and determining whether or not the petitioner should be
jurisdiction could not encompass civil offenses (defined by the held for trial); (c) he would be deprived of the right to be tried by
general civil law as per the Revised Penal Code and Republic Act judicial process, by the regular, independent courts of justice, with all
1700 known as the Anti-Subversion Act) alleged to have been the specific constitutional, statutory and procedural safeguards
committed by civilians like petitioner in 1965, 1967, 1969, 1970 and embodied in the judicial process and presided over not by military
1971, long before the declaration of martial law as of September 21, officers ("trained and oriented along strict rules of discipline and rigid
1972. countenance (although) they are human beings with human
The U.S. Supreme Court aptly pointed out in Toth vs. Quarles, hearts"23 who are not lawyers (except the law member), but by
supra in ruling that discharged army veterans (estimated to number judges of at least ten years experience in the practice of law whose
more than 22.5 million) could not be rendered "helpless before some objectivity and independence are protected by tenure guaranteed by
latter-day revival of old military charges"18 and subjected to military the Constitution and are nurtured by the judicial tradition; and
trials for offenses committed while they were in the military service (d) He would be deprived of the right to appeal to the regular
prior to their discharge, that "the presiding officer at a court martial is appellate courts and to judicial review by this Court, in the event of
not a judge whose objectivity and independence are protected by conviction and imposition of a sentence of death or life imprisonment
tenure and undiminished salary and nurtured by the judicial tradition, which the charges carry.24 Article X, section 1 of the 1973
but is a military law officer. Substantially different rules of evidence Constitution expressly provides that the National Assembly (which is
and procedure apply in military trials. Apart from these differences, vested with the power to define, prescribe and allocate the
the suggestion of the possibility of influence on the actions of the jurisdiction of the various courts) may not deprive this Court of its
court-martial by the officer who convenes it, selects its members and jurisdiction over such serious cases, among others. This Court in the
the counsel on both sides, and who usually has direct command exercise of such jurisdiction has consistently exacted the cardinal
authority over its members is a pervasive one in military law, despite rule that the prosecution must prove the guilt of the accused beyond
strenuous efforts to eliminate the danger." a reasonable doubt and required a qualified majority of ten (10)
The late Justice Black speaking for that Court added that "(A) Court- votes for affirmance of the death penalty (which requirement is of
Martial is not yet an independent instrument of justice but remains to course not found in the Commander-in-Chief's review of the
a significant degree a specialized part of the over-all mechanism by decisions of military tribunals).
which military discipline is preserved," and that ex-servicemen For the military tribunal to try petitioner under these circumstances is
should be given "the benefits of a civilian court trial when they are to deny petitioner due process of law as guaranteed under section 1
actually civilians .... Free countries of the world have tried to restrict of the Bill of Rights as well as under section 17 which further
military tribunals to the narrowest jurisdiction deemed absolutely specifically ordains that "No person shall be held to answer for a
essential to maintaining discipline among troops in active service." criminal offense without due process of law." The elimination by
More so then should military trials be not sanctioned for civil subsequent decrees of his right to preliminary investigation (with
offenses allegedly committed by civilians like petitioner long before right of counsel and of cross-examination) of the subversion charges
the declaration of martial law and for which they could have been before the proper court of first instance under Republic Act 1700 and
of other rights vested in him at the time of the alleged commission of People's Court after the last war to try those charged with treason in
the offense which were all meant to provide the accused with ample point, for said court as well as similar courts like the Circuit Criminal
lawful protection in the enforcement of said Act, such as the basic Courts which were created by Congress pursuant to its authority
right to be tried by judicial process and the right of judicial review by under the Constitution and vested with special jurisdiction over
this Court would further offend the Constitutional injunction against certain crimes, were created as judicial courts and part of the judicial
the enactment of ex post facto laws which would render it easier to system whose decisions were and are subject to review by the
convict an accused than before the enactment of such law.25 appellate courts, unlike military commissions.
With all such constitutional safeguards, the Court through Mr. Justice 5. Prescinding from the issue of respondent military commission's
Castro in its decision in People vs. Ferrer26 rendered after the lack of jurisdiction over the charges against the petitioner, the
proclamation of martial law, nevertheless enjoined that "even as we examination of the prosecution witnesses and the perpetuation of
uphold the validity of the Anti-subversion Act, we cannot their testimony should properly be held before the Special
overemphasize the need for prudence and circumspection in its Reinvestigating Committee created under Administrative Order No.
enforcement, operating as it does in the sensitive area of freedom of 355 for the simple reason that all proceedings before respondent
expression and belief," and set specific basic guidelines to be military commission were deemed suspended by virtue of the
observed in any prosecution under the Act. Hence, the prohibition reinvestigation ordered by the President to determine whether there
against ex post facto laws laws has been aptly described as "a "really is reasonable ground" to hold petitioner for trial and the
warning against legislative oppression or tyranny" and a provision perpetuation of testimony given before the said Committee is
that "would minimize if not eradicate the possibility of the legislature expressly provided for in the Administrative Order.
itself discrediting the state with its palpable disregard of a basic It was precisely "to reassure the (petitioner) that he continues to
objective, that justice be dispensed with an even hand through the enjoy his constitutional right to due process" and "to insure utmost
duly established organs with a special fitness for the task."27 fairness, impartiality and objectivity" and "to determine whether
Petitioner has thus cited the President's announcement on reality there is reasonable ground to believe that the offenses
December 11, 1974 that the persons charged with assassination charged were in fact committed and the (petitioner) is probably guilty
attempts against him will be tried before the civil courts although the thereof' that the President created under Adm. Order No. 355 on
charges were filed with the military tribunals28 and the President's August 28, 1973 a special five- member committee "to conduct the
recent issuance on March 6, 1975 of Letter of Instruction No. 225 preliminary investigation" of the charges against petitioner.
creating a special five-member panel to conduct an investigation to It may be seen from the above-stated premises and objectives that
re-evaluate the evidence against the therein accused and to the administrative order was issued by the President pursuant to his
determine whether an offense has been committed and whether they "orientation towards the protection of the Bill of Rights (and) the
are probably guilty thereof and if probable cause is found, to file the judicial process." As the President himself declared in the same
appropriate charges.29 nationwide press conference of August 24, 1971: têñ.£îhqwâ£
4. Petitioner's plea that his trial by a military tribunal created by the I am a lawyer, my training is oriented towards
President and composed of the President's own military the protection of the Bill of Rights, because if
subordinates without tenure and of non-lawyers (except the law you will remember, I have repeatedly said, that if
member) and of whose decision the President is the final reviewing it were not for the Bill of Rights I would not be
authority as Commander-in-Chief of the Armed Forces deprives him here now. If it were not for the judicial process, I
of a basic constitutional right to be heard by a fair and impartial would not be President of the Republic of the
tribunal, considering that the President has publicly declared the Philippines....35
evidence against petitioner "not only strong (but) overwhelming" and In petitioner's urgent motion of March 24, 1975 for a restraining
in petitioner's view thereby prejudged and predetermined his guilt order against the holding of perpetuation of testimony proceedings
merits consideration. before respondent military commission, he precisely complained that
In petitioner's view, he has been publicly indicted and his guilt such proceedings would preempt and render moot the prejudicial
prejudged by the President when in a nation-wide press conference question raised by him in the case at bar challenging the
on August 24, 1971 following the Plaza Miranda bombing three days commission's jurisdiction to take cognizance of the charges against
earlier of the Liberal Party proclamation meeting, the President him and would "short-circuit" the reinvestigation ordered by the
charged him and disclosed evidence in the possession of the President under Adm. Order No. 355 "even before the said
government linking petitioner to some illegal and subversive committee has performed its duty to determine whether or not
activities, in 1965-1971, which are virtually the same charges now petitioner should be held for trial" and notwithstanding that "there is
filed against him before respondent military commission, and no indication coming from the President of the Philippines that it has
declared the evidence against petitioner "not only strong (but) outlived its usefulness — functus oficio — or that it is not fit to
overwhelming." The President explained on the same occasion that administer justice to the petitioner."36
in not acting against petitioner, he had "erred on the side of While petitioner insisted on his right to a preliminary investigation of
generosity as well as of liberality hoping that good sense may the subversion charges by the court of first instance as prescribed by
someday catch up with him" since petitioner was "the only opposition Republic Act 1700, he nevertheless propounded in his March 21,
senator left in the Senate" after the bombing, but that he did not 1975 memorandum that retired Justice J. B. L. Reyes' having
know "what will happen later on, because, of course, the military declined to act as chairman of the committee and to designate a
insist that we must not make any exceptions to the general rule."30 representative of the Integrated Bar did not mean that the committee
While one may agree that the President as Commander-in-Chief "cannot be made to function (since) in the absence of judicial writ or
would discharge his duty as the final reviewing authority with fealty process, there is nothing to prevent the designation of another
to his oath "to do justice to every man," particularly because of his retired justice of the Supreme Court as chairman, and nothing to
renowned legal sagacity and experience, still under the prevent the incoming president of the Integrated Bar to designate a
environmental facts where the military appears to have been representative to the committee."37 As to petitioner's having declined
impressed by the President's appraisal of the evidence and without to designate his representative, it has already been pointed
casting any reflection on the integrity of the members of respondent out, supra,38 that the said order expressly provides that in such event
military commission which petitioner himself acknowledges, the "the Chief Justice shall designate someone in his stead "
doctrine consistently held by the Court that "elementary due process It is evident then that under the said order, the Chief Justice was
requires a hearing before an impartial and disinterested called upon to fill at least the two vacancies by making the substitute
tribunal"31 arid that "All suitors ... are entitled to nothing short of the designations as therein provided, which would have enabled the
cold neutrality of an independent, wholly free, disinterested and committee to discharge its function with a composition of four
impartial members (while awaiting the designation of the fifth member by the
tribunal"32 calls for application in the present case. IBP president) but that he refrained from doing so as the matter
This Court in all its jurisprudence on disqualification and inhibition of was sub judice because of the pendency of the supplemental
judges has invariably cited as "a salutary norm ... that he (the judge) petition at bar questioning the validity of the order on the ground that
reflect on the probability that a losing party might nurture at the back it deprived petitioner of his right to investigation by the court of first
of his mind the thought that the judge had unmeritoriously tilted the instance on the principal charges of subversion.
scales of justice against him" and applied the yardstick that when the With the Court's dismissal of the petitions (and petitioner's
basis has been laid for "the possibility of a trial-being tainted by withdrawal thereof) nothing stands in the way now of activating the
partiality, this Court can step in to assure respect for the demands of said Special Reinvestigating Committee and its discharging its
due process" which it has extended primarily for the peace of mind assigned task of "conducting the preliminary investigation" and
and protection of the accused.33 determining whether petitioner should be held for trial in
Respondents' citing of Yamashita vs. Styer34 as justifying the implementation of the order's express objectives of reassuring
prosecution and trial of civilians by military commissions is in error petitioner of "his constitutional right to due process" and "insuring
as that case involved the "trial and punishment of war criminals utmost fairness, impartiality and objectivity in the prosecution of the
(which) is an aspect of waging war." Neither is the creation of the charges against (petitioner)."
Such preliminary investigation by the Special Reinvestigating reasonable notice to an accused to attend the perpetuation
Committee with its diverse membership and emphasis that those proceedings, the deposition by question and answer of the witness
designated must meet the qualifications of being "learned in the law, may proceed in the accused's absence and the failure or refusal to
reputed for probity, integrity, impartiality, incorruptibility and fairness attend the examination or the taking of the deposition shall be
and must have had no previous connection in this matter either as considered a waiver."43 Thus, an accused's right of total waiver of his
counsel or investigator" is certainly far more desirable than the presence either expressly or impliedly by unjustified failure or refusal
present situation where such grave charges were summarily filed to attend the proceedings is now explicitly recognized and he cannot
with the military commission against petitioner without his having be compelled to be present as against his express waiver.
been previously informed of the charges against him nor given the Even as among the members of the Court who voted as per the April
benefit of any preliminary investigation. 25, 1975 resolution in favor of qualified waiver, i.e. that the
Going by the very standards of "utmost fairness, impartiality and accused's presence could be required in the instances where his
objectivity" set by the President in the Administrative Order, and presence is needed for his identification by the prosecution witness,
prescinding from the unsettled question of whether petitioner would the view was expressed that such presence could be dispensed with
have through counsel the right of cross-examination of the witnesses if his waiver expressly included an admission of his identification by
presented against him, it will be readily appreciated that in such name by the witnesses-deponents. It should be noted that such an
preliminary investigation by a non-military special committee wholly additional requirement would be superfluous because of the total
composed of civilians, petitioner may then fairly and properly be waiver as well as because of the disputable
represented by experienced counsel who can competently handle presumption44 established by the rule of evidence of "identity of
his defense and at least present timely objections to the admission person from identity of name"45, aside from the many prominent
of incompetent or inadmissible evidence, not to mention that the five public positions occupied by petitioner through which his
men "learned in the law" composing the committee would most identification is made by the prosecution witnesses as noted from
likely motu propio rule out any such inadmissible evidence. This their affidavits as submitted by the Solicitor-General.
would be in contrast to the perpetuation proceedings in the military 7. Petitioner's objection to the perpetuation proceedings, particularly
tribunal where petitioner has discharged all his counsels, civilian and if they were to be considered part of the trial, since the very question
military, because of the lack of jurisdiction, in his view, (as well as at issue in the case at bar on military commissions' lack of
per this opinion) of the military commission over civilians like him for jurisdiction over pre-martial law civil offenses allegedly committed by
alleged pre-martial law civil offenses and the nullity of the civilians like petitioner would be preempted and rendered moot by
proceedings therein and thus has been deprived, although by his the proceedings should have been given due consideration by said
own act, of indispensable legal representation and assistance in the commission, instead of being used by it to require his presence
proceedings where his very life, liberty and honor are at stake. against his will.
The objective of the perpetuation proceedings may properly be It should be noted that the Solicitor General's second ground for
achieved by the Special Reinvestigating Committee before whom justifying respondent commission's reversal order requiring
the testimonial evidence sought to be perpetuated should be petitioner's presence was that "petitioner had claimed in this case
presented in the discharge of its assigned task to conduct a that proceedings for the perpetuation of testimony were actually a
preliminary investigation to determine whether or not the charges part of trial", without however stating respondents' own stand.
against petitioner should stand and petitioner made to face trial. The prevailing doctrine, as enunciated by the Court in People vs.
Holding the perpetuation proceedings before the committee would Elago46 appears quite clear that "It is not a trial where the defendant
dispose of the legal requirements under P.D. No. 328 itself that the has to introduce his evidence. It is only taking down the statements
proceedings be had before a military tribunal with jurisdiction and of the witnesses for the prosecution with opportunity on the part of
"before which a case is pending." Even though technically, as the defendant to cross-examine them."47 The Court, citing Rule 111
contended by respondents, the cases are still pending with the (e) of the 1940 Rules of Court (now reproduced in Rule 115 (f) of the
military tribunal, it seems obvious from the very terms of Revised Rules of Court)48 and the great weight of judicial authorities
Administrative Order No. 355 that the charges are in fact deemed against the admission of a deposition or previous testimony of a
withdrawn from the military tribunal and the latter cannot hold any witness who is present in court or is available at the actual trial, set
proceedings for as long as the committee has not completed its aside the appellate court's decision affirming conviction therein and
preliminary investigation and determined thereafter the existence of ruled that the trial court and the appellate court "committed
a prima facie case sufficient to let the charges remain and to require reversible error" in admitting the perpetuated testimonies or
petitioner to face trial. The Administrative Order thus expressly depositions of the two American prosecution witnesses when they
provides for the perpetuation of "any testimonial evidence presented were actually present in court at the time of trial.
before the Committee" and for its use in any proceeding" before any The Court thus held that: têñ.£îhqwâ£
court or tribunal, civil or military, without need of presenting the It is clear from the rule ... that the testimony or
witness or witnesses who testified in case such witness or witnesses deposition of a witness may be read or
have died or left the country or become unable to testify."38* submitted in evidence only when the deponent
6. Assuming nevertheless that the perpetuation of testimony is dead or incapacitated to testify or cannot be
proceedings could be properly conducted before respondent military found in the Philippines. If he was present in
commission, petitioner's physical presence at the proceedings could court, there is no need for introducing his
not be compelled by virtue of his express waiver thereof as explicitly deposition in evidence because his testimony is
allowed by the Constitution and by P.D. No. 328 itself. the best evidence especially in a case like the
On April 1, 1975, respondent military commission had recognized present where the deponent in giving his
petitioner's right to waive his presence at the proceedings and deposition had not been cross-examined by the
granted his request to be returned to his detention quarters. But on defendant, although of course, said failure to
April 4, 1975, it reversed itself at the military prosecutor's instance cross examine may not be laid at the door of the
and ruled instead that petitioner's presence at every stage of the prosecution.49
proceeding is indispensable on the ground, as stated by the Solicitor The most that can be said then is that the perpetuation proceedings
General, that "the charges against petitioner involve capital offenses may be conditionally considered part of the trial only when the
and petitioner is in custody and petitioner had claimed in this case deponent-witness is at the time of trial dead or incapacitated to
that proceedings for the perpetuation of testimony were actually a testify or cannot with due diligence be found in the Philippines.
part of Absent any of these conditions, it is not a part of the trial and the
trial."39 Petitioner's submittal that he cannot be compelled to be witnesses must give their testimony anew (not their previous or
present at the proceedings even against his will by virtue of his perpetuated deposition) as the best evidence subject to the crucible
express waiver is meritorious. Whereas previously such right of of cross-examination.
waiver of the accused's presence in criminal proceedings was Hence, petitioner had cause to complain against the military
generally recognized40 save in capital cases4 l leading to the prosecutor's ambivalent posture that "In the first day he argued we
suspension of trial whenever the accused was at large) or where the must proceed (notwithstanding the pendency before this Court of the
accused was in custody although for a non-capital offense, the 1973 petition questioning the commission's lack of jurisdiction) because
Constitution now unqualifiedly permits trial in absentia even of this is not part of the trial. Now, the ruling adversely was handed
capital cases, and provides that "after arraignment, trial may proceed down (allowing petitioner's waiver of his presence), but this is a part
notwithstanding the absence of the accused provided that he has of the trial, he
been duly notified and his failure to appear is unjustified,"42 thus says."50
recognizing the right of an accused to waive his presence. P.D. No. 8. Withal, these questions presented serious, if not difficult,
328 under which the perpetuation proceedings are being conducted questions of law, and particularly, the petitioner's right to totally
in military commissions (as the counterpart rule for similar waive his presence at the proceedings presented an important new
proceedings before the regular civil courts, as provided in Rule 119, question that required an authoritative ruling from this Court because
section 7 of the Rules of Court) explicitly provides that after of the new provisions of the 1973 Constitution involved.
The granting of petitioner's urgent pleas on April 4, 1975 to be given state of war, incident to an invasion or
a period of at most seven days to file a written motion for insurrection.")56
reconsideration of the commission's reversal order of the same date These reflections on the competence of the civil courts find no
requiring his presence at every stage of the proceedings (estimated justification in the facts of public notice and knowledge, to wit:
to last from two to three months, according to the military A number of judges of courts of first instance have been removed
prosecutor51) and to seek relief from this Court, instead of yielding to with the acceptance of their resignations but there is not a single
the stubborn insistence of the military prosecutor that the recorded case where the "judges (were) in active sympathy with the
perpetuation be "done immediately" on the gratuituous assertion that rebels, and courts their most efficient allies"; There is not a single
"precisely because if the ground is delay, the witnesses whose known case since the martial law proclamation of "judges (being)
testimonies are sought to be presented would have been long dead unwilling to try the rebels out of fear or other motives" or of the
if perpetuation is held up"52 and summarily denying petitioner's judges, complainants and witnesses having been intimidated and
"repeated appeals . . as fast as they were presented" as graphically silenced by rebels;
reported by the press53 would have averted triggering off the hunger Neither is there a single known instance of an accused rebel having
strike commenced on the same date by petitioner who felt that he "exploited procedural advantages available in the civil courts and
was unjustly denied his right of waiver and the "last basic right of a rendering military operations against the rebellion difficult since
human being . . to be left alone." those suspected of participation or conspiracy in the communist
Such an urgent serious plea to be given a reasonable time and rebellion have been arrested without right to bail; General Order No.
opportunity to seek recourse from this Court would have been 49 issued by the President on October 4, 1974 restored to the civil
readily acceded to by a regular court in line with established judicial courts a large number of criminal cases that were transferred to
usage and procedure. The Solicitor General's reply of April 11, 1975 military tribunals upon the proclamation of martial law on the express
after this Court's issuance of the restraining order of April 8, 1975 premises that "positive steps have been taken to revitalize the
suspending further proceedings by the commission-in contrast to the administration of justice and the new Constitution authorizes the
military prosecutor's unyielding stand incongruously branding the reorganization of the courts" and "although there still exist areas of
filing with this Court of the petition at bar and of the supplemental active rebellion in the country, on the whole there has been such an
petitions as "delaying tactics" and "dilatory moves"54 — expressly improvement in the general conditions obtaining in the country and
"welcome(d) any ruling by this Court whether under Presidential in the administration of justice as to warrant the return of some of the
Decree No. 328 the presence of the accused is necessary or criminal cases to the jurisdiction of civil courts"; and
indispensable." The decision of this Court upholding petitioner's right These premises of G.O. No. 49 are borne out by the data and
of waiver vindicates petitioner's assertion before respondent military published reports. The twenty (20) military commissions (14
commission of his right "to keep silent ... to stay alone ... not to ambulatory and 6 regional commissions)57 hearing cases from time
participate. ."55 — a right which is his to exercise or not. to time in marathon hearings as the pressures of the military service
9. Respondents have utterly failed to show the existence of "public allow the military commissions to convene could not conceivably
danger (that) warrants the substitution of executive process for the match the work and cases disposition of around three hundred and
judicial process" and the setting aside of the constitutional mandate twenty (320) courts of first instance and circuit criminal courts all
that lodges judicial power in the regular courts of law and not in over the country working continuously and regularly throughout the
military tribunals and guarantees civilians the benefits of a civilian year.
court trial. To subject civilians to military trial just like military The argument of procedural delays in the civil courts and need of
personnel and troops and enemy belligerents rather than to civilian prompt and certain punishment has been long cut down by the late
trial by the regular civil courts is to negate the cardinal principle and Justice Frank Murphy in his concurring opinion in Duncan58 when he
state policy of supremacy at all times of civilian authority over the stressed that "civil liberties and military expediency are often
military. 55* irreconcilable and that "the swift trial and punishment which the
In seeking to justify the substitution of the executive or military military desires is precisely what the Bill of Rights outlaws. We would
process by military commissions for the judicial process of be false to our trust if we allowed the time it takes to give effect to
preliminary investigation and trial by the regular civil courts with right constitutional rights to be used as the very reason for taking away
of appeal to the Supreme Court invoked by petitioner as his those constitutional rights," as follows: têñ.£îhqwâ£
constitutional right, the Solicitor General in his memorandum has Delays in the civil courts and slowness in their
made a number of bare assertions without even any factual procedure are also cited as an excuse for
averments or allegations in support thereof, as follows:têñ.£îhqw⣠shearing away their criminal jurisdiction,
Indeed, civil courts may be open and although lack of knowledge of any undue delays
undisturbed in the execution of their functions in the Hawaiian courts is admitted. It is said that
and yet may be wholly incompetent to avert a the military 'cannot brook a delay' and that 'the
threatened danger, or to punish, with adequate punishment must be swift; there is an element of
promptitude and certainty, the guilty time in it, and we cannot afford to let the trial
conspirators. In times of rebellion it may often linger and be protracted.' This military attitude
happen that the judges are in active sympathy toward constitutional processes is not novel.
with the rebels, and courts their most efficient Civil liberties and military expediency are often
allies. (Ex parte Milligan, 4 Wall. 18L. Ed. 281, irreconcilable. It does take time to secure a
299 [Chase, C.J., concurring.]) grand jury indictment, to allow the accused to
There may be other reasons justifying the procure and confer with counsel, to permit the
creation of military tribunals. Judges may be preparation of a defense, to form a petit jury, to
unwilling to try the rebels out of fear or other respect the elementary rules of procedure and
motives. evidence and to judge guilt or innocence
xxx xxx xxx according to accepted rules of law. But
In our case, study shows that Communist experience has demonstrated that such time is
subversion and propaganda aim at the well spent. It is the only method we have of
paralyzation of the will and the terrorism of the insuring the protection of constitutional rights
population and the government functionary. In and of guarding against oppression, The swift
many parts of the country the rebels succeeded trial and punishment which the military desires is
in intimidating and silencing not only the precisely what the Bill of Rights outlaws. We
offended parties and their witnesses but even would be false to our trust if we allowed the time
the judges. it takes to give effect to constitutional rights to
xxx xxx xxx be used as the very reason for taking away
Still another reason for trial by military tribunals those rights. It is our duty, as well as that of the
is the possibility that the accused may exploit military, to make sure that such rights are
procedural advantages available in the civil respected whenever possible, even though time
courts and render military operations against the may be consumed.
rebellion difficult. (Citing a West Virginia case As already indicated above, it should be noted that no actual case of
(1921) where the court therein reasoned that undue delays in the prosecution of criminal cases in the regular civil
"Participants (in an insurrection) arrested and courts has been claimed by respondents, nor has it been shown that
committed to the civil authorities could easily military necessity or public danger require that petitioner be deprived
find means of delaying trial, and liberated on of his rights to due process and to the cold neutrality of an impartial
bail return to the insurrectionary camp and tribunal under the judicial process, should the reinvestigation
continue to render aid (and) the civil tribunals... ordered by the President bind him over for trial.
are wholly inadequate to the exigencies of a
10. The Solicitor-General's submittal that "the decrees and orders determined under the laws then in force. The
relating to military commissions are now part of the law of the land provisions of the existing Rules of Court not
and are beyond question" and that "as the trial and punishment of inconsistent with this Constitution shall remain
civilians by military tribunals under the circumstances ... are valid operative unless amended, modified, or
and constitutional, objections based on differences between civil and repealed by the Supreme Court or the National
military courts are immaterial" is constitutionally infirm and Assembly. (Art. XVII)
untenable. Insofar as the questioned decrees and orders encroached upon the
The Solicitor-General's premise is that "with the ratification of the jurisdiction of the regular courts over the trial of civilians, they must
new Constitution martial law as proclaimed by the President became be deemed abrogated by the cited provisions of the Constitution
part of the law of the land and now derives its validity from the new itself, in accordance with the established rule that statutes as well as
constitution"59 and that by virtue of section 3 (2) of the Transitory executive orders and regulations that are inconsistent with and
Provisions60 the decrees and orders on the military commissions are transgress the provisions of a new Constitution must be deemed
now also part of the law of the land and beyond question states a repealed thereby.
rather prolix and sweeping concept that cannot be precipitately As noted in the writer's previous opinions,65 the specific legislative
sanctioned. powers granted the incumbent President in section 3 (2) of the
Martial law has not become part of the law of the land and beyond article on Transitory Provisions are limited to "modifying, revoking or
question by virtue of the coming into force of the 1973 Constitution. superseding the incumbent President's validated acts and decrees
In fact, the said Constitution has precisely reproduced the 1935 done or issued prior to the proclaimed ratification on January 17,
Constitution's commander- in-chief clause with power to declare 1973 of the 1973 Constitution. No post-ratification legislative powers
martial law limited to exactly the same causes of invasion, are therein granted the incumbent President and such legislative
insurrection or rebellion or imminent danger and with exactly the power or more accurately military power under martial rule that has
same requirement that the public safety require it.61 Going by the been exercised by him thereafter (in the absence of a parliament)
doctrine enunciated in Lansang vs. Garcia62 by a unanimous Court, must rest on the law of necessity of preservation of the State and the
the existence of factual bases for the proclamation and continuation decreeing of such necessary measures as will safeguard the
of martial law may under the said provision be judicially inquired into Republic and suppress the rebellion (or invasion). On the other
in order to determine the constitutional sufficiency thereof as well as hand, section 7 of the same Article expressly reserves to the
to circumscribe the constraints thereof, in particular cases where National Assembly the power to amend, modify or repeal "all existing
they clash with an individual's constitutional rights, within the bounds laws not inconsistent with this Constitution (which) shall remain
of necessity for the public ends and the public safety, as indeed this operative." Among such existing laws whose "amendment,
Court did pass on such questions in the Habeas Corpus modification or repeal are reserved to the National Assembly are the
cases.63 And as the President expressly stated at his world-wide laws herein involved, viz, the Anti-Subversion Act, Republic Act No.
satellite press conference of September 30, 1974, the duration of 1700 and the existing Rules of Court66 with their safeguards for the
martial law is "only as long as necessary" as per the following rights of an accused defendant. At any rate, any such presidential
pertinent excerpt of his statement thereon: têñ.£îhqw⣠decrees and orders cannot prejudice the vested rights of a
Of course the problem here is, if you say that defendant-accused as to pre-martial law offenses allegedly
martial law leads to democracy, how long are committed by him nor be given an adverse ex post facto effect
you going to maintain martial law? I say again against him.
that only as long as necessary. As the 11. Respondents' assumption of the validity of military trials of
constitutionalists put it, necessity gave life to civilians and conclusion that objections based on differences
martial law and martial law cannot continue between civil and military courts are immaterial must necessarily fail.
unless necessity allows it to live .64 It has been shown that respondents have failed to show the
The cited Transitory Provision, known as the validating provision existence of some overpowering factor that makes a recognition of
puts the imprimatur of a law upon the President's acts and decrees petitioner's and other civilians' constitutional rights to due process
under martial law which were not within or beyond his allocated incompatible with the public safety as to warrant the temporary
constitutional powers. As aptly stated by Justice Muñoz Palma in her casting aside or suspension of such rights. On the contrary, the
separate opinion in the Habeas Corpus cases, the people could not issuance of the reinvestigation order under Administrative Order No.
by the 1973 Constitution have thrown away "all their precious 355 for the non-military Special Reinvestigating Committee created
liberties, the sacred institutions enshrined in their Constitution, for thereunder to conduct a preliminary investigation of the charges
that would be the result if we say that the people have stamped their against petitioner shows that no element of public safety is herein
approval on all the acts of the President executed after the involved.
proclamation of martial law irrespective of any taint of injustice, The vested rights invoked by petitioner as essential elements of his
arbitrariness, oppression, or culpable violation of the Constitution basic right to due process, which are not granted him under the
that may characterize such acts. Surely, the people acting through decrees and orders for his trial by respondent military commission,
their constitutional delegates could not have written a fundamental are substantial and vital, viz. his right to a preliminary investigation
law which guarantees their rights to life, liberty and property, and at as apparently recognized by Administrative Order No. 355 (as to the
the same time in the same instrument provide for a weapon that non-subversion charges) with right to counsel and of cross-
could spell death to these rights." examination of the witnesses against him, and the right under the
The contention that the decrees and orders on military commissions Anti-subversion Act to a preliminary investigation by the proper court
as "part of the law of the land are beyond question" really begs the of first instance; his right as a civilian to be tried by judicial process,
question, for as was stressed by Justice Muñoz Palma, it would be by the regular independent civilian courts presided by permanent
"incongruous" that while the acts of the regular National Assembly judges with tenure and with all the specific safeguards embodied in
as the "permanent repository of legislative power" are subject to the judicial process; and his right to appeal in capital cases to this
judicial review, "the acts of its temporary substitute, that is, the Court wherein a qualified majority of ten (10) affirmative votes for
incumbent President, such as the decrees and orders in question affirmance of the death penalty is required.
would be claimed to be "beyond question." The ordinary layman as well as practitioner are totally unfamiliar with
Indeed, the majority resolution recognizes that "Of course, from the the summary rules and procedures of military commissions as
fact that the President has this range of discretion, it does not compared to the established procedures under the Rules of Court
necessarily follow that every action he may take, no matter how before the civilian courts, which per se places the civilian on trial
unjustified by the exigency, would bear the imprimatur of validity." before a military commission in a disadvantageous position. A
While the decrees and orders on military tribunals were made part of cursory review of the transcripts furnished the Court shows these
the law of the land by the cited Transitory Provision (assuming that peculiarities that normally would not occur in civilian trials, as
they had been properly submitted for the purpose) still this general follows:
and transitory provision can in no way supersede or nullify the The swearing in at the commencement of the perpetuation
specific allocation of jurisdiction and judicial power to the Supreme proceedings on March 31, 1975 of two newly-appointed members;67
Court and the regular courts of justice as established by law under The withdrawal on March 15, 1975 of the charges against Huk
Article X section 1 of the Constitution nor their proper exercise of Commanders Melody and Pusa who were originally named as co-
jurisdiction to the exclusion of non-judicial agencies, under section 8 accused principals in the four subversion charges and their
of Article XVII which provides that: têñ.£îhqw⣠utilization as state witnesses, which according to the commission's
SEC. 8. All courts existing at the time of the law member "automatically takes effect. The military commission
ratification of this Constitution shall continue and cannot pass upon such withdrawal"68 in contrast to the procedure in
exercise their jurisdiction, until otherwise the civilian courts where the discharge of accused persons to be
provided by law in accordance with this state witnesses must meet certain requirements in the interest of
Constitution, and all cases pending in said truth and justice, e.g. that the "defendant (to be discharged) does not
courts shall be heard, tried, and appear to be the most guilty" and "has not at any time been
convicted of any offense involving moral turpitude" as determined in as that Constitution stands, whoever may the
the judgment of the court 69; and man in power be, whatever may his purpose be,
The military prosecutor (designated as trial counsel) acts in his own that Constitution will guide the people and no
description as "a 'Glorified Chimoy' of the Military Commission. He man, however powerful he may be will dare to
acts not only as Prosecutor of Military Commission No. 2 but he acts destroy and reck the foundation of such a
as a general FACTOTUM or a MAN FRIDAY of this Military Constitution.
Commission. . (and) he prepares the record of the trial."70 These are the reasons why I personally, having
As far as is generally known, the military commission at the proclaimed martial law, having been often
conclusion of the trial takes a secret written ballot with at least two- induced to exercise power that can be identified
thirds of the members present to arrive at its summary findings of merely with a revolutionary government, have
Guilty or Not Guilty, without entering a written decision which "shall remained steadfast on the rule of law and the
clearly and distinctly state the facts and the law on which it is based" Constitution. I would recommend that if the
as is mandatorily required by the Constitution of every decision of a President can do this, it the President can
civil court of record. 70* restrain the exercise of his own powers, every
12. The transcendental constitutional issues involved in the case at citizen for his part should not find it a burden to
bar which the majority has resolved to decide on the merits despite participate in this act of self-denial and self-
petitioner's withdrawal motion call for adjudication on the basis of abnegation, as an earnest to the future of our
enshrined principles of constitutionalism and the rule of law, as race and our people.77
unequivocably espoused by the President himself. The case at bar This is but to state that no one should be above or below the law and
asserts the right of civilians to the judicial process of civilian trials by to reiterate the classic dictum that "The Constitution . . . is a law for
the regular civil courts (particularly for pre-martial law offenses) as rulers and people, equally in war and in peace, and covers with the
against the executive process of trial by military tribunals and hinges shield of its protection all classes of men, at all times, and under all
on this Court's upholding the principle that the individual in the circumstances."78 In the relatively recent case of Phil. Blooming Mills
absence of overpowering necessity or public danger, must be Employees' Organization vs. Phil. Blooming Mills,79 Mr. Justice
accorded his constitutional rights as guaranteed by the Bill of Rights Makasiar restated for the Court certain "basic concepts and
even in a state of martial law. A corollary principle would be that the principles" of constitutionalism, which bear reproducing as they
continuation of martial law for institutionalization of reforms is not concern the issues at bar, as follows: têñ.£îhqwâ£
incompatible with recognizing the fundamental liberties granted in (1) In a democracy, the preservation and
the Bill of Rights. enhancement of the dignity and worth of the
The Bill of Rights of the Constitution specifies the powers that have human personality is the central core as well as
been withheld from the government and are reserved to the the cardinal article of faith of our civilization. The
people .71 But the freedom guaranteed by it against the inviolable character of a man as an individual
overwhelming power of the State would be meaningless and of no must be "protected to the largest possible extent
use unless citizens could vindicate and enforce them against the in his thoughts and in his beliefs as the citadel of
government officials and agencies by proper procedures in the his person."80
courts. As held by the Court in Garcia vs. Macaraig, "In a system like (2) The Bill of Rights is designed to preserve the
ours, every exercise of governmental competence, whether coming ideals of liberty, equality and security "against
from the President or from the lowest official, may be challenged in the assaults of opportunism, the expediency of
court in an appropriate legal the passing hour, the erosion of small
proceeding."72 encroachments, and the scorn and derision of
As was stressed by the late Chief Justice Stone in Duncan, supra, those who have no patience with general
"executive action is not proof of its own necessity, and the military's principles."81
judgment here is not conclusive that every action taken pursuant to In the pithy language of Mr. Justice Robert
the declaration of martial law was justified by the exigency. In the Jackson, the purpose of the Bill of Rights is to
substitution of martial law controls for the ordinary civil processes, withdraw "certain subjects from the vicissitudes
'what are the allowable limits of military discretion, and whether or of political controversy, to place them beyond
not they have been overstepped in a particular case, are judicial the reach of majorities and officials, and to
questions.' Sterling v. Constantin, supra (287 US 401, 77 L ed 387, establish them as legal principles to be implied
53 S Ct 190). by the courts. One's rights to life, liberty and
The Court's judgment at bar is therefore of the utmost importance property, to free speech, or free press, freedom
since under Article 8, Civil Code, "Judicial decisions applying or of worship and assembly, and other
interpreting the laws or the Constitution shall form a part of the legal fundamental rights may not be submitted to a
system of the Philippines." As defined by Knovitz "the Constitution vote; they depend on the outcome of no
and the laws enacted by the legislatures and the judgments and elections."82 Laski proclaimed that "the
orders of the courts constitute the Rule of Law." happiness of the individual, not the well-being of
The President has often declared that "The New Society looks to the State, was the criterion by which its
individual rights as a matter of paramount concern, removed from behaviour was to be judged. His interests, not
the vicissitudes of political controversy and beyond the reach of its power, set the limits to the authority it was
majorities. We are pledged to uphold the Bill of Rights and as the entitled to exercise."83
exigencies may so allow, we are determined that each provision xxx xxx xxx
shall be executed to the fullest, ...."73 Mr. Justice Douglas articulated this pointed
While stressing that "martial law ... is a temporary constitutional reminder:
expedient of safeguarding the Republic"74 and "a temporary phase in The challenge to our liberties comes frequently
the development of our not from those who consciously seek to destroy
country,"75 the President has thus called for the Constitution to our system of government, but from men of
"remain firm and stable," has rejected the "exercise (of) power that goodwill-good men who allow their proper
can be identified merely with a revolutionary government" that concerns to blind them to the fact that what they
makes its own law76 and has called on every citizen to "remain propose to accomplish involves an impairment
steadfast on the rule of law and the Constitution", as follows: têñ. of liberty.
£îhqw⣠... The motives of these men are often
. . . Whoever he may be and whatever position commendable. What we must remember,
he may happen to have, whether in government however, is that preservation of liberties does
or outside government, it is absolutely not depend on motive. A suppression of liberty
necessary now that we look solemnly and has the same effect whether the suppressor be
perceptively into the Constitution and try to a reformer or an outlaw. The only protection
discover for ourselves what our role is in the against misguided zeal is constant alertness of
successful implementation of that Constitution. the infractions of the guarantees of
With this thought, therefore, we can agree on liberty contained in our Constitution. Each
one thing and that is: Let all of us age, let all of surrender of liberty to the demands of the
us then pass away as a pace in the moment makes easier another, larger
development of our country but let the surrender. The battle over the Bill of Rights is a
Constitution remain firm and stable and let never is a never ending one.
institutions grow in strength from day to day, ... The liberties of any person are the liberties of
from achievement to achievement, and so long all of us.
 ... In short, the liberties of none are safe unless terminating litigations at the earliest opportunity may not be invoked
the liberties of all are protected. when the evident result is detriment to the more paramount objective
... But even if we should sense no danger to our of having a definite ruling by the Supreme Court as to what the law is
own liberties, even if we feel secure because in regard to the matters of vital public interest actually and properly
we belong to a group that is important and brought to it for adjudication.
respected, we must recognize that our Bill of But the imperative need to settle the important issues raised in this
Rights is a code of fair play for the less case is not the only reason I have for voting to deny petitioner's
fortunate that we in all honor and good motion. When petitioner was required by the Court to amplify his
conscience must observe.84 initial unreasoned request to be allowed to withdraw all his petitions,
If as stressed above uniformly by the President and the cited legal motions and other incidents herein, his counsel submitted a letter
authorities, supra, the freedoms guaranteed by the Bill of Rights are purportedly coming from petitioner, wherein he vehemently cast
"removed from the vicissitudes of political controversy (and) beyond aspertions against this Court, alleging that he does "not want
the reach of majorities and officials" and are established "as legal anything from the Supreme Court, and that the whole thing had been
principles to be applied by the courts" and "may not be submitted to designed, composed and orchestrated in Malacañang" and that his
a vote; they depend on the outcome of no elections," then it is "legal battles in the Supreme Court are now over. Mr. Marcos is the
respectfully submitted that the principles of fundamental public policy single genius, composing and directing all the proceedings, whether
enshrined in the Bill of Rights that guarantee to every individual due in the military tribunal or in the civil courts," and even going as far as
process and fair play, regardless of who he is and of whoever may referring to the "Supreme Court as an obstacle."
be in power, call for the granting of the petition and at the least for I do not believe 'it is under any circumstance proper for a Supreme
the reinvestigation of the charges against petitioner with "utmost Court to leave such accusations unchallenged. Most likely, they
fairness, impartiality and objectivity" as directed in Administrative could be mere uncontrollable outburst of a desperate soul which are
Order No. 355 itself. without judicial significance, but since it is as likely that petitioner's
Muñoz-Palma, J., concur.1äwphï1.ñët letter would be used as propaganda material not only here but
BARREDO, J., concurring: abroad to discredit the Philippine Government in the eyes of the
I concur in the main opinion so very ably penned for the Court by our world, I consider it inevitable for the Court to proceed to dispose of
distinguished colleague, Mr. Justice Antonio. I am writing this the merits of petitioner's case and thus let all and sundry judge for
separate opinion not with intent to unnecessarily lend force to the themselves on the basis of the Court's expressed considerations
cogent and compelling considerations expounded therein but only to rather than on that of petitioner's self-serving opinion, whether or not
articulate a few thoughts I entertain relative to certain aspects of this our judiciary is what petitioner claims it to be. It is my considered
case which have additionally impelled me to overrule the contentions view that if a party who comes to court has indeed any right to
of petitioner other than his invocation of his right to waive his withdraw his case therefrom, such withdrawal should not receive the
presence at the proceedings being held against him. sanction of the court when the party tells the court that his reason for
At the outset, I would like to underscore the fact that this is the first withdrawing is because he has no confidence in its impartiality and
decision of this Court regarding major martial law issues wherein the capacity to render justice. In such a situation, the only recourse of
main opinion carries the unqualified concurrence of the required the court is to prove by actually deciding the case how just and
number of justices for doctrinal purposes. Since I have heretofore impartial it is.
regretted Our failure to agree on a common opinion that would not I would like to state here emphatically that petitioner's apprehensions
be subject to varying constructions, including distorted and self- about the dangers to the independence of the judiciary of the
motivated ones which could be peddled around for propaganda Philippines at present, particularly the Supreme Court, is nothing
purposes by those who for reasons of their own cannot see anytime more than an a priori opinion and is not and cannot be supported by
right in the present order, it is to me a cause of genuine satisfaction facts. After all, the Court does not have to necessarily agree with
that at long last the Court has been able to render the instant opinion everyone who feels that certain acts of the Government are illegal or
and judgment, touching on important and basic constitutional and unconstitutional. Surely, a propensity to overrule the other
legal features of the prevailing martial law administration, in a departments of the Government is not the true mark of the
manner that leaves no room for doubt as to the meaning and scope independence of the judicial branch. If so far, the Supreme Court
of Our pronouncements. has not yet declared any impugned acts of the President or the
To be more specific, the main opinion in this case and the rulings martial law government unconstitutional, it is not because the Court
therein contained own the full support of at least eight members of is subservient to the President in any way, but simply because, in
the Court, without counting what I consider to be the close-enough- the honest conviction of its members, the proper case for such a
to-concurrence posture of Mr. Justice Fernando, which betrays no declaration has not come. That the Court can and will strike down
little effort to reconcile long cherished traditional views with the acts of the President in the appropriate instances, there should be
innovative and progressive juridical concepts emerging from the no doubt whatsoever. The people can rest assured that when the
imperatives of the legal character of the presently established proper occasions arise, the justices, individually and collectively, will
government. In the light of the constitutional requirement of ten (10) not be found wanting in wisdom and courage to act accordingly,
votes for a declaration of invalidity of any order of the President, regardless of what might be the views and wishes of the Executive
eight negative votes is more than impressive. And certainly, all the and/or any other department of the government.
rulings in the main opinion, having as they do have the support of At this point, it may not be amiss to say a few words respecting
those eight votes, constitute authoritative doctrines, against which, petitioner's decision to resort to what is being referred to as a
the contrary views of any member of the bar should have no more "hunger strike."
than academic value. At these times when it is best that the legal According to his letter aforementioned, the initial reason for such a
foundations of the existing government should be securely solidified step was, to quote his own words, to "protest against a procedure
to better and faster achieve the ends for which martial law has been intended to humiliate and dehumanize me, considering that all they
proclaimed, the pronouncements of the Court in this case should put wanted was for me to be identified as a common criminal and not as
an end to an effort to discredit the actions of this Government as a political rival. I also said that my hunger strike was not only for
being founded only on might rather than right. Indeed, my faith is myself but on behalf of many other victims of today's oppression and
that the rule of law obtains today as it has always obtained before, injustices." Later, however, the causes thereof were broadened by
arid due consideration and corresponding accommodation accorded him thus: têñ.£îhqwâ£
to the requirements of the emergency confronting the nation do not Despite my hunger strike, or probably because
detract in any way from the effective supremacy of the law. of it, I see with unmistakable clarity that my legal
1. Petitioner motion to withdraw denied battles in the Supreme Court are now over. Mr.
It is a settled rule consistent with the fitting dignity of judicial Marcos is the single genius, composing and
proceedings that after a case has been submitted for decision, directing all the proceedings, whether in the
withdrawal of the same from the jurisdiction of the court is a matter military tribunal or in the civil courts. This is the
addressed to its sound discretion and is far from being a matter of evil of one-man rule at its very worst. He has
right on the part of any of the parties. For obvious reasons, a party destroyed the independence of the civil courts,
should not be allowed to provoke issues of far reaching interest and abolished the legislature, controlled the mass
importance and hurl accusations against the actuations of the media, curtailed our cherished liberties with the
adverse party, thereby creating doubts in the public mind as to the backing of the military, which, ironically, exists
validity of said actuations, and thereafter, upon being confronted with 'for the good of the people.'
the defenses of his opponent and sensing perhaps probable defeat, Without the Supreme Court as an obstacle, I
to just take a retreat, without expressly admitting the infirmity of his have decided to go on my hunger strike and
position, thereby making sure that he can with relative impunity place my fate and my life squarely in the hands
continue with his critical attitude in the manner suitable to his of my accuser, prosecutor, and judge Mr.
convenience and purposes. Observance of the laudable policy of Marcos. Thus the plain, naked truth will be
 made clear to our people and to the rest of the more disauthorizing his lawyers from henceforth speaking for him
world. and finally seeking the withdrawal of this case from our hands. Is the
As I said, my hunger strike is not for myself Court supposed to extend to a "political rival" of the President more
alone, but for the many thousands of Filipinos than what the existing laws provide for others?
who are helpless victims of the oppression and As a Filipino myself, I am ready to concede that petitioner is being
injustices of the so-called New Society. The actuated by what he honestly believes to be his duty to our country
meaning and thrust of my struggle and sacrifice and people. His abiding loyalty to his cause and his firm conviction to
transcend the limited question of absence or attain his objectives are to me admirable. But I reject any suggestion
presence in the proceedings before the military that for the Court to uphold the legality and constitutionality of the
tribunal. I have therefore solemnly vowed to existing government is inimical to the national interests and ideals. I
continue my hunger strike as a symbol of our can see that the concept of martial law presently being evolved here
people's firm protest against:têñ.£îhqw⣠as well as some features of its implementation do not conform with
1. The trial of civilians certain views of the American Supreme Court and some alien writers
before military tribunals, on the subject, but is it imperative that the Supreme Court of the
particularly for offenses Philippines should adhere to the doctrines laid down by alien
allegedly committed by authorities in order to be right?
them before martial law; Incidentally, it is becoming increasingly evident that some religious
2. the lack of judicial quarters as such would want their influence felt in the resolution of
independence. Trials by the legal issues before Us. One does not have to dig deep into the
civil courts would still be a pages of history to learn that nations and peoples have also suffered
travesty of justice, where and when there was no separation of the church and state as
especially in cases where when they were under despots and autocrats. In any event, while
those in power, their one can commiserate and sympathize with petitioner for the
relatives or associates, are personal sufferings he has elected to undergo, I cannot convince
interested — for as long as myself that they are in anyway comparable with the agonies of Christ
our judges remain at Calvary, as seemingly, I am informed, has been somehow or
"casuals". They should be seemingly suggested at a religious gathering sometime ago of those
given permanent tenure, for who share convictions with petitioner. Withal, I am afraid that even
their own good and for the the mere attempt to draw such a comparison could be a sin of
benefit of our people who sacrilege and of having strange gods before our only Holy
have a vital stake in a Redeemer.
sound administration of 2. Military tribunals and trials for persons who have committed
justice. offenses against the objectives of martial law is a natural and logical
3. the absence of a genuine concomitant of martial rule.
free press. Since martial The legalistic and scholarly discussion in the main opinion of the
law was proclaimed, I have issue of jurisdiction of herein respondent Military Commission No. 2
been unfairly condemned needs no amplification. I only wish to punctualize a broader
and vilified by the controlled foundation for my concurrence. I have always maintained it is
newspapers and tv-radio elementary, historically and legally, that in any regime of martial law,
stations. I know there are offenders against its objectives are and ought to be tried by military
many people who have tribunals in accordance with the procedure prescribed for them. To
been similarly pilloried. But feel apprehensive than that unless the Court upholds petitioner's
a genuine free press is contention that as a civilian he cannot be tried by respondent
even more important for commission for the crimes allegedly committed prior to the
those who are in power. It proclamation of martial law, thousands of Filipinos run the risk of
may free them from their being similarly hailed before military courts and deprived of their
arrogance, their prejudices, constitutional rights to due process, is to ignore that throughout the
and their pretensions, and life of all nations, when rebellions and revolutions were mounted, no
help them see the injustices distinction has ever been drawn, among those igniting the uprising
they have committed which naturally was done before any declaration of martial law, as to
against their own people. whether they are civilians or military men, for purposes of trying
4. the further continuation of them before the military courts of the legitimate or victorious
martial law and its evils and government, at least, whenever prosecution has to be undertaken
repressions. After all, Mr. before the hostilities were over. And in this connection, it may be
Marcos has already said of more recent military tribunals trying rebels that more
announced to the world that safeguards are being adopted in order that the elementary
he had actually removed requirements of due process may be surely observed by them.
martial law since April, Moreover, it would be a misconception of the true import of this
1974." (Petitioner Aquino's decision to suppose that it may be taken advantage of by any future
letter, pp. 4-5.) government, for, as I have explained in my concurring opinion in the
In so far as petitioner's "hunger strike" may be understood as an Habeas Corpus cases,1 any self-restraint the Court has opted to
attempt to stampede the Court to render a verdict favorable to his exercise in its decisions so far rendered, from asserting its judicial
views, I must state categorically that it is subversive and authority to interfere with the actuations of the Executive,
contumacious, specially because it is being admittedly done with considering it has not found any evidence of manifest abuse of
"unmistakable clarity" of mind and purpose. Frankly, I am at a loss discretion or gross arbitrariness in them, does not mean the
as to what kind of procedure would suit him. In the same breadth Supreme Court has lost the power to act accordingly in appropriate
that he professes to advocate that every man is entitled to equal cases that may come later. And there being no question that
protection of the laws, he claims that he should be treated not as an Proclamation 1081 which established martial law in the Philippines is
ordinary accused but "as a political rival", evidently meaning, of the valid,2 it necessarily follows that respondent military tribunal which
President. How indeed is "a political rival" of the Administrator of has been created under it are vested with jurisdiction to try and
martial law supposed to be prosecuted for an offense committed decide petitioner's cases, it appearing that the charges and
against the laws of the land? specifications against him are related to the causes that gave
Be that as it may, anyone can easily imagine the unmanageable occasion to the Proclamation, no matter that the offenses charged
situation and judicial chaos that would result should We create a therein were committed long before the issuance of said
precedent wherein the Court should yield to the demands of a proclamation. Otherwise, the alternative would be to await the
person under formal charge of committing an offense, as otherwise termination of martial law when all passions shall have subsided and
he would resort to a hunger strike. Nonetheless, We were somehow the courts could calmly and without regard to the personal feelings of
disposed to lean backwards and rule interlocutorily as early as We the judge as to the merits of the rebellion make an impartial decision,
could on the issue as to whether or not the respondent Military but that would mean the continued detention of the petitioner in the
Commission was right in compelling petitioner to attend the meantime.
perpetuation proceedings and thereby place his initial cause for the It is insisted, however, that since the civil courts are open, it is
"hunger strike" in its true perspective. But Our efforts to this end derogative of their constitutional authority to sanction petitioner's trial
were met by petitioner's Churchill like reaction that what We could in a military commission. Such contention ignores the fundamental
possibly give was "too late and too little", manifested by his once mission of military courts during martial law. In any martial law
situation wherein civil courts are continued, their co-existence with amount to a pronouncement of guilt. As such, therefore, they do not
military tribunals ought not to create any conflict of jurisdiction. The sufficiently prove what the judgment of the President would be after
trial and punishment of offenders against the established order the whole evidence of petitioner's cases shall have been examined
should as a matter of necessity be left in the hands of the military and evaluated by him. In other words, from the strictly legal point of
whereas the civil courts are supposed to aid in the preservation of view of petitioner's pose about denial of due process to him by
normal society among the non-offenders by continuing the exercise reason of prejudgment lacks persuasiveness.
of their jurisdiction over all civil matters which have no direct relation Legal standards aside, however, it is immensely reassuring that the
to the imperatives of the Proclamation. And as very well explained in President has announced that as soon as the present perpetuation
the main opinion, the constitutional requirements of due process are proceedings are terminated, he will consider the advisability of
being complied with even in the military tribunals. transferring the cases in question to the civil courts. Should that be
In legal contemplation, there is here no diminution much less a done, and I have no reason for believing that it will not be so done, it
derogation of the judicial power vested by the Constitution upon the will not only be that petitioner will be relieved of a great degree of
Supreme Court and other inferior courts established by law. As I mental torture, but, as importantly if not more so, the President shall
made clear in my separate opinion in the Habeas Corpus have given the nation eloquent proof not so much of his nobility as of
cases,3 once the Supreme Court refrains, during a national his determination not to allow the decision in the cases of petitioner
emergency, by virtue of the discretion implicitly granted to it by the to be in any manner tainted by the slightest suspicion of any
people in the Constitution, from invalidating the proclamation of personal feeling or opinion on his part. And I have no fears at all that
martial law, because it is convinced that there has been no patent others who are also similarly charged before military commissions
arbitrariness in its issuance, which We have actually done already in will demand the same treatment, thereby subverting the whole
said cases, there can be no legal objection to the existence of system of crime prosecution under martial law I have earlier
military courts for the purposes I have just indicated. And it must be adverted to, for in the particular case of petitioner, there is the
so, for it is entirely rational that military tribunals are peculiarly fit, in singular circumstances that the President has made statements
view of the more summary and expeditious procedure designed for which have some relevance to his cases, which it does not appear
their functioning, to temporarily administer justice in the prompt and has been done in those of the others. Besides, under General Order
unencumbersome manner required by the exigencies of the No. 49, the President has already transferred the mass of the cases
situation. In other words, the theater-of-war test is not truly against civilians to the civil courts. Briefly then, while I hold that there
determinative of the constitutionality of military trials during martial is nothing constitutionally wrong with having petitioner tried by a
law, even when martial law is proclaimed for the express purposes military tribunal, it is my conviction that it is preferable from all other
of simultaneously reforming society with the suppression of the points of view that his cases be transferred to the civil courts, and
rebellion by causes therefore may not recur. Whether or not the not because in fact he will not get justice from the former, but
authority of the civil courts may give way to military jurisdiction because he will have more peace of mind in the latter and the
should rather depend on the nature of the offenses committed and people will be spared every doubt as to whether or not the slightest
its relation to the elimination of the unnecessary hindrances or element of partiality or bias has crept into one of the most important
obstacles to the complete restoration of order and the attainment of trials in the current history of our country. But, of course, it is not
the social and political objectives of the Proclamation. within the ambit of the authority of even the Court itself, much less
3. Petitioner's allegation of pre-judgment, albeit lacking in sufficient this writer, to direct the President's exercise of the powers vested in
juridical persuasiveness is nevertheless worthy of serious him by the Constitution; so, all that I can do is to voice the faith and
consideration by the authorities who can provide relief. hope that the President may not encounter any further obstacle to
That I am somehow impressed by petitioner's contention of his actually ordering the transfer of petitioner's cases to the civil
supposed pre-judgment of his case by the President who has courts in accordance with his afformentioned public announcement,
ordered the creation of the military courts and by whom their the sooner the better.
decisions are to be reviewed for final approval is no secret. At the 4. Petitioner has the right to waive his presence at the perpetuation
open hearing of this case before this Court on April 14 last, I had proceedings before the respondent Commission.
occasion to ask the Solicitor General what possible impediments are As I stated earlier, what really seems to have initially provoked
there to the transfer of petitioner's case to the civil courts, which can petitioner's decision to go on some kind of a hunger-strike was the
rightly be done under the law. But that was, of course, far from respondent Commission's turnabout in regard to the issue of
indicating that I believe that indeed there could be such whether or not he can waive his presence during the perpetuation
prejudgment. I have faith that in the discharge of his solemn proceedings before it. After ruling at first that he had such right,
constitutionally prescribed oath to "do justice to every man", subsequently, upon motion for reconsideration of the prosecution,
President Marcos would not be capable of wantonly discarding the the Commission reversed itself and ruled that his presence is
inherent responsibilities of his high office, knowing as he does that indispensable and can thus be secured compulsorily. But if such
he would not be where he is were it not for the trust and confidence action of the respondent commission is the cause of petitioner's
reposed in him by the people when they elected him as the man who hunger strike, as he had stated at the beginning, he may now desist
by the exercise of the immense powers given him by the Constitution from continuing with his rather perilous posture. All the members of
would precisely protect and defend them against injustice and the Court participating in this case are agreed that the ruling
oppression. in People vs. Avanceña4 relied upon by the prosecution should be at
Truth to tell, the thought or suspicion of prejudgment in military least modified, if not completely overturned. Six of us, namely,
justice during martial law is inevitable, for the obvious reason that Justices Fernando, Teehankee, Antonio, Muñoz Palma, Aquino and
the concentration of powers in such a situation carries with it this writer are of the view that petitioner, although under detention
inherently the spectacle of the army being the accuser and judge at and charged with a capital offense, has the right to absent himself at
the same time. When it is considered, however, that military courts any stage of the trial, while the other five Justices, namely, Justices
are generally collegiate, with each member thereof being obliged to Castro, Makasiar, Esguerra, Concepcion Jr. and Martin, believe also
vote secretly not only on the issue of the guilt of the accused as to that that right exists subject however to the qualification that it
each charge and specification but separately, also on the penalty to cannot be invoked whenever his presence is needed for
be imposed, and that in important cases, particularly capital ones identification purposes. Accordingly, it is entirely up to the petitioner
like some of those of petitioner, their decisions are automatically whether or not to attend the perpetuation proceedings now going on
subject to review and recommendation by a number of levels of except when he is to be identified by the witnesses on the stand and
authority, such as the Chief of Staff, the Board of Review, the only for just the time needed for that exclusive purpose.
Secretary of National Defense etc., each with their corresponding Speaking for myself, I find eminent merit in the contention of
staff judge advocates, before reaching the President for the final petitioner that even for identification purposes he cannot be made to
verdict, one cannot escape the conviction that more exacting be present at the trial against his will. Since under the Constitution,
safeguards against any possibility of partiality and prejudgment may trial of criminal cases in the absence of the accused is allowed,
not be found in the civil courts. It is entirely wrong, unjust and when after the arraignment and in spite of due notice he fails to
unwarranted to think of all army men as having only one mind. After appear without justification, pursuant to Section 19 of the Bill of
all, they are also Filipinos like petitioner and counsel, and they Rights or Article IV, I cannot see why an accused who does not want
cannot have less interest in and devotion to the sacred ideals for to undergo the experience of being repeatedly pointed to and of
which our common country and people exist. being the target of the curious eyes of the public, cannot elect to
Moreover, in the case at bar, the statements attributed to the leave the defense of his case and of his rights to his counsel in his
President and which petitioner quotes and maintains are reflective of absence or even put himself completely at the mercy of the court,
the President's supposed pre-judgment of his cases, viewed secure in the thought that it is anyway the inescapable duty of the
objectively, would indicate at most only an offhand evaluation of the judge not to allow anything illegal or inhuman to be done to him.
evidence then on hand, without regard to the other evidence now in I can understand why an accused has to be present at the
possession of the prosecution, and without counting those which arraignment and at the reading of the sentence. In the former, it has
petitioner will present on his behalf, and does not necessarily to be known to the court that he is indeed the person charged and
that he personally understands the accusation against him. More My position on this point is that his detention is only for the purpose
importantly, the plea must be entered by him personally to avoid any of securing the execution of the judgment in the eventuality of
misconstruction or misrepresentation, innocent or otherwise. In the conviction and for no other purpose derogative of his freedom to
latter, it is essential that the accused himself should be aware from waive his personal rights related to the procedure of his trial. His
personal knowledge what is the verdict of the court, and if it be constitutional rights "to be heard by himself or counsel, to be
conviction, what is the penalty to be served by him. These are informed of the nature and cause of the accusation against him, to
matters too personal to permit delegation. At the same time, his have a speedy and public trial, to meet the witnesses face to face
presence makes it simpler in the public interest for the authorities to and to have compulsory process to secure the attendance of
enforce execution of any adverse judgment. But I cannot see why an witnesses and the production of witnesses on his behalf" (Section
accused should be compelled to be present at the trial when he 19, Art. IV) including those not to be "compelled to be a witness
prefers perhaps the solitude of his cell to pray either for forgiveness, against himself ... to remain silent" and not to be subjected to "force,
if he knows he is guilty, or, if he is innocent, for God to illumine the violence, threat, intimidation, or any other means which vitiates (his)
court so there would be unerring justice in his case. free will" (Sec. 20, id.) and even that of not being "twice put in
My understanding is that the problem of identification of an accused jeopardy of punishment for the same offense" (Sec. 22, id.) may be
may be adequately solved without violating the justified wishes of the waived by him provided the waiver is made properly. As I see it, the
accused to be left alone. To start with, if he is referred to by the right to be present at the trial is more or less the composite of these
witnesses of the prosecution by name, the court may presume that rights I have enumerated. Since all of them separately are waivable,
the accused who has acknowledged his true name at the why may not the waiver of all of them be done wholesale, so to
arraignment is the one indicated. This Court ruled unequivocally speak, as long as the waiver is clearly and voluntarily manifested to
more than sixty-five years ago in U.S. vs. Adolfo, 12 Phil. 296, and the court. Above all, I consider the right of an accused to human
reiterated it in People vs. Santos, 53 Phil. 863, twenty years later, dignity to be more precious than all his other rights, hence I cannot
and there has been no contrary opinion since then, that the see the point in compelling the accused to sacrifice his human
rebuttable presumption of identity of person is applicable not only in dignity for the sake of enabling the prosecution to identify him in
civil cases but also to the identification of the accused in criminal person when the same end can as well be legally attained without
cases. To my mind, there is absolutely no need that the accused be exacting from him such sacrifice.
personally identified by the court while the inculpating witness is Sustaining as I do sustain the right of petitioner to absent himself at
testifying, where the accused voluntarily waives his presence and the trial proper, it is unnecessary for me to discuss whether or not
even suggests to the court, as petitioner has done, to avail of the the perpetuation proceedings constitute part of the trial. I must make
legally presumption just mentioned. (See Sec. 5 (w), Rule 131.) it clear, however, than even if We were to hold that they are part of
Of course, it is to be underscored that the presumption is juris the trial proper, I insist that if the witnesses who have testified or will
tantum. Thus, the waiver of the presence of the accused at the trial testify at the perpetuation proceedings should be available when the
does not preclude him from presenting evidence to overcome the trial actually takes place it is the right of the accused to have them
presumption. I admit that the ensuing situation may pose problems recalled and to be examined further and even anew in the sound
for the prosecution, but where in the democratic world is the accused discretion of the trial court. Presidential Decree 328, paragraph 2,
supposed to lend his hand in order to make it that much easier for amending subparagraph 4 b (7) of Presidential Decree No. 39 is to
the court to convict him. Our fundamental law, no less than the be so construed, in the interest of fairness and justice.
rudimentary rules of fair play, expressly enjoins that the accused As I close this concurrence, two thoughts continuously recurring in
may not be compelled to incriminate himself. I take such injunction to my mind during its preparation keep urging articulation. The first is
be consistent with man's inalienable right to be treated with the that to commit suicide is prohibited by the laws of God and man. No
dignity of a human being and it therefore extends to any and all one has the right to take his life for any reason. Withal, leadership in
forms of making the accused aid the prosecution in proving its case. any field of human endeavor creates a responsibility that knows no
It is claimed that the state has the unquestionable right and duty to surcease for any kind of convenience. Perseverance of purpose to
see to it that the accused is not convicted unless he is duly be of real significance and worth requires one's survival. The future
identified. To the wisdom and nobility of such proposition, I must say is inscrutable the hand of fate guides only those who bide their time
amen. But I maintain that it is an incongruity in principle to predicate and do not despair before the designed moment comes. Thus, it
on such a just premise the conclusion that the state may compel the could yet be a crime also against the interests of our country and
accused to assist it by exhibiting himself for purposes of people to indulge in self-destruction when one knows that he has
identification. I am aware of precedents to the effect that the talents and attributes that can be offered for the attainment of the
compulsion against self-incrimination prohibited by the Bill of Rights national destiny.
does not contemplate acts required of the accused which do not The second concerns the Supreme Court whose independence of
involve the employment of his intellect. In other words, he cannot be conviction it is the bounden duty of every Filipino to keep unsullied.
made to produce evidence against himself, but he can be compelled The unkindest thing of all is for those to whom you concede the
to perform mechanical acts conducive to that end. But I do not see loftiest of motives to impugn recklessly your own. The unceasing
any analogy between the facts in those precedents and the case at quest for the achievement of the national goal naturally divides men
bar, and, in any event, I do not see the justice and fairness of those in all democracies into groups each composed of those sharing
precedents. As far as I am concerned, the prosecution must prove common views and feelings as to how to make the country succeed
its ease by its own effort and within own resources and should not earlier in realizing its ideals. Such disparity, however, cannot
be permitted to depend on the accused for anything that will help it produce disunity, as long as everyone involved because of official
secure his conviction. I know that the Constitution has placed duty or choice trusts the good faith of the other.
emphasis on the duties and obligations of persons in the Philippines For the members of the Court to happen to coincide in legal views
equally with the Bill of Rights, but nowhere in those pertinent with the Executive is not servility. Neither should it be considered
provisions in Article V do I discern any duty or obligation on the part evidence of any measure of orchestration or common planning. As a
of an accused to help the prosecution in having himself identified by matter of fact, there has never been any such thing. The best proof
the witnesses of the state. is that, as I have emphasized at the outset, this is the first martial law
After having been in continuous practice at the bar for more than case in which the required majority for doctrinal purposes has been
three decades before joining the Court, I should know that the attained. Where then is the alleged orchestration? And how could
almost invariable procedure practiced in the identification of accused the charge have basis in the face of the undeniable happenstance
persons at the trial is in a sense impractical, if not farcical. As the that no martial law or constitutional decision has yet come out from
cases are called from the calendar, the accused are made to stand the Court without vigorous and extensive dissents of notable
and evidence their presence within the view of everybody in the consistency. Indeed, occasions there have been when one or two
courtroom including the witnesses of the prosecution. Rare is the more votes became imperative for a more effective and conclusive
occasion when necessary precautions are taken at the initiative of ruling, and no one can say that anybody concerned received
meticulous defense lawyers to prevent the witnesses from seeing dictation as to what to do. Of my own knowledge, I bear witness that
the accused as they answer the calling of the calendar. My point is not even a finger has been lifted in any manner against any of the
that any quibbling about the proper identification of the accused by dissenters. As of now, the Court has not found enough cause to hold
compelling his presence at the trial may not be worth the irreparable any of the President's actuations submitted for Our scrutiny to have
injury to human dignity that can be caused by bodily and forcibly overstepped constitutional bounds. It is evident that due care is
taking the accused from his place of confinement to the place of trial being taken to avoid fault in this respect. I can imagine no reason
in the event he insists on his pose that he is agreeable anyway that why and no occasion when such effort will ever be relaxed at all.
the presumption on identities I have referred to be applied to his More so in the earnest vigil by the Supreme Court.
case. MUNOZ PALMA, J., dissenting:
In the precedents relied on by the prosecution, it is held that I concur with the dissenting Opinion of Justice Claudio Teehankee
inasmuch as the accused is under detention, his person is subject to with additional explanation for my vote.
the disposition of the court before whom he is charged. I disagree. 1. On the Motion to withdraw Petition —
From a letter of Benigno Aquino, Jr. of April 14, 1975, addressed to collegiate appellate court or to the Supreme Court is not a right
his wife, children, relatives, and friends submitted to the Court and under the Constitution unless an explicit guarantee can be found in
now part of the record of the case (see page 7 of Justice the words thereof.
Teehankee's dissenting opinion), I am convinced that petitioner no And as far as appeal is concerned, it is apparent that the petitioner's
longer desires to seek redress or relief from this Court. He would counsels are not aware of the number of the levels of review of a
rather make of his plight (his continued detention from September decision of conviction by a military commission in our jurisdiction.
23, 1972, in a military camp and trial before a Military Commission Four levels of review (equivalent to four levels of automatic appeal)
for crimes allegedly committed before the proclamation of Martial are provided, namely: the first review by the Staff Judge Advocate of
Law) a matter of conscience between himself and the President of the Chief of Staff (who appoints the military commission);
the Republic, and offer his life for what he believes is a rightful the second review by a Board of Review of not less than three senior
cause. Who am I to stand on the way of this man who offers himself officers, of the Judge Advocate General's Service; the third review
in supreme sacrifice, and is ready to consign his fate to his Maker, by a Board of Review of not less than three senior officers of the
for his country and his people? Judge Advocate General's Service; the third review by a Board of
2. On the merits of the Case — Military Review acting for the Secretary of National Defense and
I vote to grant the Petition for Prohibition because, brushing aside consisting of not less than two lawyer-officers of at least field rank;
the personalities of the parties involved, that is, the fact that Benigno and the fourth and final review by the Secretary of Justice for the
Aquino, Jr. was a member of the Senate and a known leader of the President of the Philippines as Commander-in Chief. These four
Opposition at the time martial law was proclaimed and that President reviews are compulsory; none of them may be bypassed or
Ferdinand E. Marcos believes in the Rule of Law not withstanding dispensed with. And even if the Staff Judge Advocate, the Board of
martial rule, I am called upon at this moment to lay down a principle Review, and the Board of Military Review all concur in the judgment
of law which will decide the fate, not only of the present generation of conviction and the sentence imposed by the military commission,
but also that of Filipinos still to be born. For the main question now at the Secretary of Justice may yet, if in his opinion the evidence so
stake — whether or not military tribunals can try and render a verdict warrants, recommend to the President the acquittal or exoneration of
on civilians for offenses allegedly committed before or even during the accused. So that from arraignment by a military commission to
martial rule, notwithstanding the fact that civil authority is supreme final action by the President, a minimum of thirteen presumptively
and civil courts are existing and functioning is supreme and civil responsible individuals in different capacities are involved in the
courts are existing and functioning under the Constitution — raises entire process: a military commission of not less than five members,
before my eyes the gruesome spectre of one, a hundred, a thousand a Staff Judge Advocate, a Board of Review of not less than three
civilian Filipinos being dragged by the mighty arm of the military officers a Board of Military Review of not less than two officers, the
before its own created and manned tribunals, commissions, etc., for Secretary of Justice, and the President. I cannot accept the
offenses, real or imaginary, and tried and sentenced without the petitioner's inferential conclusion that all the twelve persons involved
constitutional safeguards attendant to a trial by civil courts (see (before the President takes final action) can be dictated to, assuming
pages 11-13 of Justice Teehankee's Opinion for these safeguards). that the President is minded to influence them. The petitioner may
True it is, that the picture I conjure before me may not take place at not be aware what the military commission now existing have
all under the present dispensation because President Ferdinand E. acquitted many who have been accused before them, and that
Marcos, as Commander-in-Chief of the Armed Forces, is committed convictions have been reversed or modified upon the
to uphold the Constitution and, as quoted by Justice Teehankee, recommendation of the reviewing officers and boards of officers
believes in the protection of the Bill of Rights (see page 32 of Justice 4. The petitioner makes the indictment that the military tribunals and
Teehankee's Opinion). But what about tomorrow, and the day after the entire Judiciary are, to paraphrase him, well under the thumb of
tomorrow, when we shall all be gone and the political atmosphere the President of the Philippines. I quote his exact words: "Mr. Marcos
different? Legal precepts which are to protect the basic fundamental is the single genius, composing and directing all the proceedings,
rights and liberties of an individual must be laid down not only for the whether in the military tribunal or in the civil courts... [and] has
present but for all times and for all conditions. The Bill of Rights must destroyed the independence of the civil courts..... Trials by civil
remain firm, indestructible, and unyielding to all forms of courts would still be a travesty of justice...." This accusation is
pressure, for like Mount Sinai of Moses it can be the only refuge of a doubtless very serious, but I say that it is a gravely irresponsible
people in any crucible they may suffer in the course of their destiny. one. To declare or imply that the entire Judiciary, from the Chief
Justice and Associate Justices of the Supreme Court down to the
last municipal judge, is under dictation by the President, is an
Separate Opinions indictment that can come only from a person who does not know
CASTRO, J., concurring and dissenting: whereof he speaks. If the petitioner has no faith in military justice
I am constrained to write this concurring and dissenting opinion and at the same time professes absolute lack of faith in the
because (a) although I substantially agree with Justice Felix Q. Judiciary, does this mean that the petitioner is so magically endowed
Antonio's forthright discussion and learned resolution of the that only he and he alone is capable of meting out justice in this
inescapable issues posed by the petition and the supplemental country? The over-all workload of all the courts in the Philippines has
petitions filed by the petitioner Benigno S. Aquino, Jr., I disagree with increased immeasurably. If this does not indubitably indicate the
his approbation of the "right" of total waiver claimed by the petitioner, faith of the people in the Judiciary then I do not know what does. If
and (b,) I desire to express my views on matters which, although in a the petitioner does not share the faith of the people in the Judiciary,
sense peripheral and not squarely in issue, are nevertheless cogent we must look to reasons other than the ostensible ones for his
and pertinent to the central issues at bar. irresponsible and reprehensible statements. To my mind these
1. At the threshold, I must state that I voted to deny the petitioner reasons are obvious and need not be belabored.
Aquino's motion to withdraw his petitions and all related motions and 5. On the matter of whether the petitioner has what he claims is a
incidents, for the self-same reasons that impelled my vote to deny "right of total waiver" of his presence in the proceedings before the
Jose W. Diokno's motion to withdraw his petition in the Martial Law military commission, I confess that the basis for such view escapes
cases (Aquino, et al. vs. Enrile, et al., L-35546, and other allied me. The trouble with the advocacy of the so-called "right" of total
cases.*) Like in the cases just adverted to, there are in the case at waiver is that it places undue and inordinate stress on the "rights" of
bar considerations and issues of transcendental and grave import, the individual and completely refuses to recognize that the State,
and I apprehend that great disservice may be caused to the national too, has its own rights and duties. I do not believe that there can be
interest if these are not resolved on the merits. any debate on the right and obligation of the State to administer
2. I am hard put to understand how and why the petitioner's justice properly. Part and parcel of this right and obligation is the
counsels conjured the argument that under the Bill of Rights the "due right of a tribunal, whether judicial or executive, to satisfy itself that
process" accorded to persons accused in criminal cases the person whom it may later convict upon the evidence is the
contemplates only judicial process. This argument runs squarely accused pointed to by the eye-witnesses for the prosecution.
athwart the time-honored doctrine in the Philippines as well as in the Because if the witnesses point to X, and the accused actually
United States — a doctrine that the petitioner's counsels must surely happens to be Y, the court of tribunal has, in conscience, no
be aware of that due process in criminal trials may comprehend not recourse but to absolve Y. For, the proper identification of the
only judicial process, but also executive process (and even accused is the very quintessence and sine qua non of any valid
legislative process in the proper cases). prosecution, is the very fundamental of due process in any criminal
3. Corollarily to this contention of the petitioner, the further thesis is trial. Surely, if the commission is to discharge its burden
advanced that his trial by a military commission denies him due conscientiously, it cannot be denied the right to determine for itself
process because he is deprived of the right of appeal. It seems the proper identity of the person who stands accused before it. This
rather elementary that the right of appeal, unless the Constitution right has absolute primacy over what the petitioner calls his "right" of
expressly guarantees such right, is merely statutory and may be total waiver of his presence.
withdrawn, modified or altered at any time — a principle that his Of course, in this particular case of the petitioner, it could be argued
counsels know only too well. Even an appeal to an intermediate that he is a national figure and therefore is known by everybody. But
I challenge the correctness of this postulate. For can it not possibly civil courts as "lacking in independence." Then he filed a petition with
happen that a member of the trying tribunal may have heard of the Court to stop the proceedings before the military tribunal; shortly
Benigno S. Aquino, Jr., the former Governor of Tarlac and former thereafter he moved to withdraw it, saying that his remedies had
Senator, but may have never actually seen him before? Identification come "too little and too late." Next he renounced the services of all
is essentially one of perception of sight and not a process of his counsels, civilian and military, yet his lawyers continued to file
inference or strained deductive reasoning. It may be correct to infer pleadings in his behalf with the Court, visit him in his quarters, and
from the declarations in court of witnesses for the prosecution who assist him in the perpetuation proceedings before the military
refer to a Benigno S. Aquino, Jr., former Governor of Tarlac and commission. Then his lawyers filed a manifestation with the Court
former Senator, that the person referred to is the petitioner, but this claiming that the military commission's decision to compel him to
cannot thereby foreclose the petitioner from later challenging the appear was for the purpose of "dehumanizing and humiliating" him;
validity of his conviction (if he is convicted) upon the ground that not but when the Court, acting on his manifestation, restrained the
one of the prosecution witnesses pointed to him as the indicted military commission, he directed his lawyers to withdraw his petitions
Benigno S. Aquino, Jr. before the Court, including his prayer for a temporary restraining
My understanding of the provisions of the new Constitution on order. He informed the newspapers that his "hunger strike" was a
waiver of presence in criminal proceedings is that such waiver may protest against his compelled presence in the perpetuation
be validly implied principally in cases where the accused has jumped proceedings, but when six Justices of the Court voted for his "right"
ban or has escaped, but certainly may not he asserted as a matter of to "total" waiver of his presence, he announced that he would attend
absolute right in cases where the accused is in custody and his the proceedings. All of these developments could indeed be read to
identification is needed in the course of the proceedings. mean one or both of two things: that his "hunger strike" was, after all,
And what of the reviews to be conducted by the Staff Judge perhaps not quite what it purported to be and/or that he has been
Advocate of the Chief of Staff, the Board of Review, the Board of trifling and continues to trifle with the military commission and with
Military Review, and the Secretary of Justice? Is it not the bounden the Court.
duty of these individuals, singly and collectively, to satisfy 8. If I were the petitioner, and I know I am innocent, there would
themselves beyond cavil at the outset of review that the person appear to be no reason for me not to face the proceedings frontally
convicted by the commission is the accused named in the charges and establish my innocence. This is not to imply that the petitioner is
and that he was identified properly by the eyewitnesses for the guilty of the charges; it is merely to stress that his behavior is hardly
prosecution? what perceptive people would expect from a man who professes
Thus, I voted for qualified waiver: the accused may valve his innocence. If it is propaganda that is in the back of the head of the
presence in the criminal proceedings except at the stages where petitioner, I would think that the highest-quality propaganda in his
identification of his person by the prosecution witnesses is favor is to establish his innocence of the charges soonest possible.
necessary. I might agree to the proposition of "total" waiver in any 9. I would like to add my own emphasis to the opinion written by
case where the accused agrees explicitly and unequivocally in Justice Antonio, by stating in capsule my considered views: (1) the
writing signed by him or personally manifests clearly and indubitably President of the Philippines, by virtue of his proclamation of martial
in open court and such manifestation is recorded, that whenever a law (in sensu strictiore), which the Court has already upheld as
prosecution witness mentions a name by which the accused is within the ambit of his powers under the 1935 and 1973
known, the witness is referring to him and to no one else. Constitutions, has likewise the power to organize military
What is disturbing is that because six Justices voted for "total" commissions in order to carry out the objectives and purposes of
waiver and only five Justices voted for qualified waiver, the judges of martial rule; (2) the military commissions created by authority of the
all inferior courts would now be at a loss to determine, in any given pertinent presidential decrees are legal as well as constitutional, as
situation, whether to take the "total" waiver position or follow the the said presidential decrees have been expressly made part of the
qualified waiver doctrine — unless it be conceded that because the law of the land by the transitory provisions of the 1973 Constitution;
Court is divided and the "total" waiver theory fails to command the (3) by tradition and history as well as by the explicit provisions of the
assent of eight Justices, the qualified waiver theory must be said valid presidential decrees, the military commissions so created
regarded as doctrinal law. Otherwise, each judge should be left to have jurisdiction to try civilians for offenses necessarily connected
determine, according to his conscience and the milieu of each case, with the objectives of martial law, whether these offenses were
what to do in order to administer justice properly. committed prior to the institution of martial rule or subsequent
Acquittal on a mistaken identity basis has occurred in numberless thereto and this inspite of the fact that the civil courts are open and
instances all over the world. While it is true that the Rules of Court functioning; (4) the claim of the petitioner that because the offenses
provide that identity of name means identity of person, it is a well- with which he is charged were, in point of time, allegedly committed
known fact in this country that there are names so common that prior to the declaration of martial law they may not be taken
many persons carry the same name. Especially considering that our cognizance of by a military commission, ignores one inescapable
population has burgeoned considerably, no one can deny that there basic fact, and this is that the crimes imputed to him are among the
are many persons by the name Jose Cruz, many by the name Jose crimes that gave cause for the institution of martial rule; (5) the
Santos, many by the name Jose Reyes, ad infinitum** (which is argument of the petitioner that the Constitution, in providing for due
good enough reason why the President of the Integrated Bar, retired process in criminal trials, can mean only trial by judicial courts, not
Supreme Court Justice Jose B.L. Reyes, has found it necessary to only demonstrates the petitioner's misunderstanding or misreading
put the letters "B" and "L" between the names "Jose" and "Reyes," of military traditions in civilized countries throughout the ages but as
and why I have used the name "Ruiz" in my name in order that my well foists an interpretation of the Constitution not warranted by its
identity will not be confused with those of two other persons who are phraseology ; (6) well-imbedded in our jurisprudence is the
known by the name Fred Castro). recognition that justice can be administered fairly by military
6. During the deliberations on this case, there came to the attention tribunals; and (7) the power of the Supreme Court to review death
of the Court rumors and amorphous bits of news to the effect that sentences does not include the power to review death sentences
the petitioner was on the verge of death because of his "hunger imposed by military tribunals.
strike." Curiously and oddly enough, none of those who purveyed the 10. In view, of all that I have above stated, and especially in the light
rumors ever thought of submitting to the Court a statement from the of my considered opinion that the military commissions now in
Secretary of National Defense as to the state of health of the existence have jurisdiction to try civilians, judicial restraint effectively
petitioner. And because of this, there was a feeling on the part of the precludes me from expressing my views on whether the President
members of the Court that they were being stampeded into deciding should transfer the case of the petitioner to a civil court for trial.
this case on the basis of the petitioner's "hunger strike." As far as I Finally, it is my abiding conviction that the President will do, within
am concerned, I did not think it advisable for the Court to request the the intendment of his sacred oath of office, what he believes is just
Secretary of National Defense for such statement, because I for the petitioner and, logically, also for everyone else similarly
assumed that if the petitioner were indeed in a state where his death situated.
was imminent, his counsels would have come forward with alacrity to Makasiar, Esguerra, Concepcion, Jr. and Martin, JJ.,
inform the Court accordingly and this, inspite of the petitioner's concur.1äwphï1.ñët
motion to withdraw which, at the time the rumors reached the Court, FERNANDO, J., concurring and dissenting:
was still unresolved. To argue that because the petitioner had As was made, clear at the opening of the learned and
already filed his motion to withdraw there was no more need for his comprehensive, ably-penned decision of the Court through Justice
counsels to give the Court information regarding his supposedly Antonio, I am for the granting of petitioner's motion for withdrawal.
deteriorating health, is to assume erroneously that the Court would My brethren had thought otherwise and consequently did proceed to
grant his motion. discuss the merits of the issues raised. While again I would vote for
7. I here make of record my considered view that the petitioner has the transfer of the criminal charges against petitioner to civil courts, it
deliberately and calculatingly tried to utilize the Court as a forum for does not mean that I am in total disagreement. Nonetheless, there
his propaganda. First he said he preferred trial by the civil courts to may be a need for a brief expression of opinion on my part as a
trial by any military tribunal, but in the next breath he denounced the mere formal concurrence on some of the points discussed may for
some imply an identity of thought lurking dormant and concealed. It laws of war. We are not concerned with the recognized power of the
is better to avoid any misunderstanding. Moreover, at least to my military to try civilians in tribunals established as a part of a
mind, it would make even more apparent the truth that there can be temporary military government over occupied enemy territory or
no such thing as complete objectivity in constitutional law, a field territory regained from an enemy where civilian government cannot
where there are no absolutes, every constitutional question involving and does not function. For Hawaii since annexation has been held
a balancing of competing values. It may also serve, hopefully, to by and loyal to the United States. Nor need we here consider the
illustrate that orthodoxy in juridical thought is not per se antithetical power of the military simply to arrest and detain civilians interfering
to the professed aims of an innovative legal order. It gives me an with a necessary military function at a time of turbulence and danger
opportunity likewise to acknowledge the neat and logical pattern to from insurrection or war. And finally, there was no specialized effort
the decision that strengthens its plausibility. The principles of law of the military, here, to enforce orders which related only to military
announced flow from the basic premise of the stern necessities of functions, such as, for illustration, curfew rules or blackouts."8 I see
martial law. What bothers me is that from the standpoint of tried and nothing in Moyer v. Peabody 9 that in any way runs counter to the
tested concepts in constitutional law, there would seem to be a need above summary of the scope of the power of military tribunals. That
for further refinement as to the scope of such doctrines and for was an action, as pointed out by Justice Holmes, "brought by the
clarifying differentiation. That, for me at least, would have been plaintiff in error against the former governor of the state of Colorado,
desirable. The apprehension is entertained that as worded in a the former adjutant general of the national guard of the same state,
rather all-encomassing manner, they may yield the impression of a and a captain of a company of the national guard, for an
total surrender to the pressure of events and the demands of the imprisonment of the plaintiff by them while in office." 10 Then came
times. Candor though compels the admission that in the final this portion of the opinion: "The complaint alleges that the
analysis juridical theories cannot afford to be insensible to political imprisonment was continued from the morning of March 30, 1904, to
and social realities. Now for the grounds of my concurrence and my the afternoon of June 15, and that the defendants justified under the
dissent. Constitution of Colorado, making the governor commander in chief
1. In the belief that petitioner's motion to withdraw should be of the state forces, and giving him power to call them out to execute
granted, I am compelled to dissent. This is with due recognition of laws, suppress insurrection, and repel invasion. It alleges that his
the principle that the Court is vested with discretion to grant or refuse imprisonment was without probable cause, that no complaint was
such a plea. This notwithstanding, I am fully persuaded that the filed against the plaintiff, and that (in that sense) he was prevented
more appropriate response is one of acceding to petitioner's prayer from having access to the courts of the state, although they were
that all cases filed on his behalf in this Court be terminated. The open during the whole time but it sets out proceedings on habeas
assumption must be that before he did arrive at such a conclusion, corpus, instituted by him before the supreme court of the state, in
he had weighed with care and circumspection all the relevant which that court refused to admit him to bail and ultimately
aspects of the situation. It could very well be that he was prompted discharged the writ. 35 Colo. 154, 91 Pac. 738, and 35 Colo 159, 12
to take such a move to avoid further anxiety and worry on his part, L.R.A. (N.S.) 979, 117 Am. St. Rep. 189, 85 Pac. 190. In those
considering that the ultimate outcome could belie expectations and proceedings it appeared that the governor, had declared a county to
frustrate hopes. At any rate, with his mind thus made up and without be in a state of insurrection, had called out troops to put down the
any compelling reason, in my mind, for the Court to keep the case in trouble, and had ordered that the plaintiff should be arrested as a
the docket, the discretion should be exercised in his favor. Nor does leader of the outbreak, and should be detained until he could be
the fact that he used rather harsh language in the reasons given by discharged with safety, and that then he should be delivered to the
him for his motion of withdrawal militate against his plea. There must civil authorities, to be dealt with according to law." 11 Plaintiff in error
be more understanding shown for the state of his physical and would hold the Governor liable for his order of detention in the
mental health after this long period of confinement, and of late of his course of suppressing an insurrection. As the case was dismissed
depriving himself of the daily sustenance. What is more, the cutting on demurrer by the Circuit Court, it was elevated to the United
edge of his sharp and pointed words may be blunted by the States Supreme Court. In affirming the judgment, Justice Holmes
performance of this Court, which in the ultimate analysis is the categorically stated: "When it comes to a decision by the head of the
ultimate criterion as to whether or not it has adequately discharged state upon a matter involving its life, the ordinary rights of individuals
its responsibilities or lived up to the trust reposed in it. The judgment must yield to what he deems the necessities of the moment. Public
is for the entire constituency of informed and concerned citizens, not danger warrants the substitution of execution process for judicial
of petitioner alone. As for any individual Justice, I would assume that process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327,
what matters most is the verdict of his conscience. 328. This was admitted with regard to killing men in the actual clash
2. Now as to the nature of my concurrence which has to be further of arms; and we think it obvious, although it was disputed, that the
qualified. Right at the outset, may I make clear that I join my same is true of temporary detention to prevent apprehended
brethren only to the extent that the conclusion arrived at by them harm."12 It does appear to me then, and this I say with due respect,
conforms to what I had previously expressed in my separate that it is a rather forced interpretation to extract from the above
opinions in Aquino v. Ponce Enrile1 and Aquino v. Commission on explicit declaration of Justice Holmes the meaning that military
Elections.2 It follows that where the opinion of the Court reflects the tribunals are vested with jurisdiction over civilians. What was
stand I took, I am in agreement. More specifically, on the question of involved was a detention, not a trial. Under the view I entertain
the scope of the competence of a military commission, I would that Duncan v. Kahanamoku supplies the applicable principle under
predicate my vote on the constitutional provision that affixes to the 1935 Constitution, the citations
General Orders Nos. 8, 12, and 39 the status of being "part of the from Winthrop and Fairman found in the opinion of the Court are, for
law of the land."3 With due recognition of the vigor with which me, less than persuasive.13 What compels concurrence on my part,
counsel for petitioner had pressed the point that such a character to repeat, is "the law of the land" section found in the Transitory
cannot be impressed on the aforesaid general orders if found in Provisions. Absent that provision, I would be unable to yield to the
conflict with the present Constitution, I still find difficulty in according conclusion reached by my brethren on the question of jurisdiction.
complete acceptance to such a view. To do so in my opinion would 4. The recognition implicit in the above constitutional precept as to
mean closing one's eyes to what was intended by the 1971 the competence of a military commission to conduct criminal trials of
Constitutional Convention insofar as it did provide for the continued certain specified offenses, to my mind, carries with it the duty to
existence of a military commission with such powers as were then respect all the constitutional rights of an accused. It is from that
exercised. This is not to imply though that in no case may a perspective that a discussion of the due process guarantee gains
Presidential proclamation, order, decree, or instruction be significance. It has a connotation both substantive and procedural.
challenged in appropriate suits for lack of conformity to a specific As to the latter aspect, it is true that it has at its core, to follow the
provision found in the present Constitution. classic formulation of Webster, the requirement of a hearing before
3. It is to be stressed further that were it not for the above mandate condemnation and a process of rational inquiry, but it has a much
of the Transitory Provisions, the submission of petitioner as to a wider radiation extending to all the legal safeguards enjoyed by a
military commission being devoid of jurisdiction over civilians elicits person indicted for an offense. So it has come to be in the United
approval. The controlling principle, to my mind, is that supplied in the States, where it is deemed to include the right to be free from
opinion of the United States Supreme Court in Duncan v. unreasonable searches and seizures and to have excluded from
Kahanamoku,4 a decision impressed with the greatest relevance criminal trials any evidence illegally seized; 14 the right to be free of
inasmuch as it interpreted the specific section found in the Hawaiian compelled self-incrimination, 15 the right to counsel, 16 the right to a
Organic Act,5 which was also a feature of the Philippine Autonomy speedy 17 and public18 trial, to confrontation of opposing
Act,6 the source of the martial law provision in the 1935 witnesses,19 to compulsory process for obtaining witnesses,20 the
Constitution.7 As set forth in the Duncan opinion penned by Justice right to a jury trial, 21 and the right against double jeopardy.22 Such an
Black: "Our question does not involve the well established power of approach is not uncongenial in our jurisdiction.23 A related matter is
the military to exercise jurisdiction over members of the armed the question of due process and preliminary investigation. I have my
forces, those directly connected with such forces, or enemy reservations as to the tone of certitude in the opinion of the court
belligerents, prisoners of war, or others charged with violating the concerning the latter's being bereft of any constitutional significance.
It was the ruling in People v. Sierra24 that "the principle This opinion for the granting of petitioner's withdrawal motion and in
uninterruptedly adhered to [is] that only where an accused is held to view of its denial, for the granting of the writ of prohibition against
answer a criminal offense in an arbitrary or oppressive manner is respondent military commission as prayed for in the petition, is
there a disregard thereof. The requirement of the proceeding not issued pursuant to the Court's Resolution of April 25,1975, which
being unjust or unreasonable must be met. This is not to rule out ruled as follows: têñ.£îhqwâ£
cases where such infirmity could be predicated on a showing that ... The Court, by a vote of seven to three,
the disregard of this procedural safeguard did infect the prosecution Resolved to DENY petitioner's motion for
with unfairness. In that sense, what was held in People v. Monton as withdrawal of the petition and of all motions and
to such a failing nullifying the proceeding because of the due incidents related thereto. Castro, Barredo,
process protection could still be conceivably relied Antonio, Esguerra, Aquino, Concepcion, Jr. and
upon." 25 Thus we come to what for me is the crucial issue posed, Martin, JJ., voted to deny the motion; Fernando,
labeled "the principal question" in the memorandum of petitioner. He Teehankee and Muñoz Palma, JJ., voted to
would invoke the highly-prized ideal in adjudication announced grant the motion.
in Gutierrez, likewise a due process requirement, that a party to a There being no sufficient votes to declare that the respondent
trial "is entitled to nothing less than the cold neutrality of an impartial Military Commission is without jurisdiction over the pending criminal
judge."26 His fears, not devoid of plausibility, proceed from cases filed against the petitioner and that it acted with grave abuse
respondent Commission having been "created by the President's of discretion in conducting the perpetuation of testimony
Order and subject to his control and direction" being unable to ignore proceedings, the Court Resolved to lift, effective immediately, the
his characterization that the evidence against petitioner was "not restraining order issued on April 8, 1975. Teehankee and Muñoz
only strong [but] overwhelming."27 It is to that implacable tenet of Palma, JJ., voted to maintain the restraining order.
objectivity and neutrality, one of constitutional dimension, that appeal On the question of waiver of the presence of the petitioner in the
is made. For Gutierrez has been followed subsequently in an perpetuation of testimony proceedings, Fernando, Teehankee,
unbroken line of decisions with an impressive concord of Barredo, Antonio, Muñoz Palma and Aquino, JJ., voted in favor of
opinion.28 That for petitioner is to buttress a stand that mirrors the upholding the petitioner's right of total waiver of his presence;
realities, to reinforce the solidity of his position. For was it not Castro, Esguerra, Concepcion, Jr. and Martin, JJ., voted in favor of
Stoessinger who pointed out that there may be at times a tendency qualified waiver, that is, that the accused could waive his presence
difficult to resist in subordinate military agencies to view matters in except in the instances where such presence is needed for his
the light supplied by previous pronouncements of those higher up in identification by the prosecution witnesses.
the ranks and to respond to situations less on the basis of empirical The extended reasoned resolution or decision and the separate
evidence but more on that of conformity to a position officially taken. extended reasoned concurring and/or dissenting opinions will be
I do not have to go that far. There is acceptance on my part that, as released next week.
the opinion of the Court states, respondent military commission may Makalintal, C.J., took no part for being a party respondent.;
be trusted to be fair and that at any rate there are still various Makasiar. J., is on leave.
appeals in the offing. Thus there are built-in defenses against any I. I vote for the granting of petitioner's motion to withdraw his petition
erroneous or unfair judgment. There is, however, this other point to and all other pending motions and matters. To paraphrase and cite
consider. For the Gutierrez ruling as now interpreted does not only the Chief Justice's reasons in casting a vote for granting a similar
guard against the reality but likewise the appearance of partiality. motion for withdrawal of petition filed by former Jose W. Diokno in
That would argue strongly for the transfer of the trial of the criminal the Habeas Corpus cases1 (which was also defeated for lack of
charges against petitioner to civil courts. Nor would he be the only necessary votes), such withdrawal would not emasculate the "issues
one thereby benefited. Respondent Commission would be spared of paramount public interest" that need to be resolved (as invoked by
from proceeding with a case where from the start, in view of the the majority) for they may be duly resolved in the other cases which
peculiar circumstances, its bona fides had been open to question, remain pending, such as the earlier and urgent lead case
although admittedly lacking factual foundation. The President of Gumaua vs. Espino and Military Commission No. 22 which raises
likewise would be absolved from any adverse, if unfounded, the same fundamental question of whether military tribunals have
criticism. The greatest gain of course would be for the administration jurisdiction to try civilians (wherein petitioner was sentenced on
of justice. There is relevance to this excerpt from Palang v. March 16, 1973 to death by firing squad, which sentence was
Zosa:29 "This voluntary inhibition by respondent Judge is to be affirmed on September 29, 1973 by the President and which has
commended. He has lived up to what is expected of occupants of long been pending decision); and since it is petitioner Aquino's life
the bench. The public faith in the impartial administration of justice is and liberty that are at stake, his choice to renounce his own petition
thus reinforced. It is not enough that they decide cases without bias questioning the jurisdiction of respondent military commission to try
and favoritism. It does not suffice that they in fact rid themselves of the cases filed against him and the subsequent incidents and to
pre-possessions. Their actuation must inspire that belief. This is an remove the case from this Court's cognizance should be respected
instance where appearance is just as important as the reality. Like "regardless of the fact that (one) disagreed with many of his reasons
Caesar's wife, a judge must not only be pure but beyond suspicion. for so doing" since one "could not escape a sense of irony in this
At least, that is an ideal worth striving for. What is more, there is Court's turning down the plea to withdraw .... and then ruling
deference to the due process mandate."30 Necessarily then, there is adversely to him on the merits of his petition." It may be added that
complete acceptance on my part of the thought expressed in the since the majority who voted to deny the withdrawal motion numbers
opinion of the Court that the President is not precluded from only seven out of ten Justices taking part in the deliberations as of
pursuing further a notion previously expressed by him concerning the date of issuance of the Court's Resolution of April 25, 1975
the possible transfer of the proceedings against petitioner to the civil which denied the motion3 the majority opinion would fall short of the
courts. required number of eight Justices to render a decision on the
6. A few words more. It is to be admitted that in coping with the merits.4 The Solicitor General's grounds for opposing withdrawal are
urgencies of the times, in accordance with what is ordained by the not persuasive. In his first opposition of April 14, 1975 where he
fundamental law and thus have its promise fulfilled, this Court is notes that petitioner "has chosen to dramatize his protest by staging
compelled to enter a domain much less clearly mapped out than a hunger strike. Petitioner's motion is thus silently eloquent in its
before. It has to find its way as best it can with the light supplied by avoidance of the reasons for (withdrawal)," his prayer that "if the
applicable precedents and the promptings of reason at times petitioner's motion is granted, it should be with prejudice," is
rendered obscure by the clouds of the emergency conditions. inconsistent with his posture that the petition is premature and with
Moreover, there must be an awareness that the complexities of an the fact that the charges against petitioner are still pending
era may not yield to the simplicities of a constitutional reinvestigation as ordered by the President. In his second opposition
fundamentalism as well as of the pitfalls of merely doctrinaire of April 16, 1975, he avers that the Government "seeks only to
interpretations. It cannot apply precepts with inflexible rigidity to fast- present the evidence supporting the charges of murder, illegal
changing situations. The notion of law in flux carries it far indeed possession of firearms and subversion against the petitioner," and if
from a fixed mooring in certainty. There must be, it cannot be this be so, petitioner's withdrawal of his petition at bar precisely
denied, greater sensitivity to the shifts in approach called for by the clears the way of all judicial obstacles for the prosecution to do so.
troubled present. Nonetheless, to paraphrase Cardozo, care is to be Petitioner's withdrawal should be properly granted in pursuance of
taken lest time-tested doctrines may shrivel in the effulgence of the the established principle that the judicial power is exercised only
overpowering rays of martial rule. There must be an effort to remain when necessary for the resolution of an actual case and controversy,
consistent with the old although relevant to the new. It is my view particularly in view of the respondents' stand in their answer that the
that thereby there is fidelity to the concept of the Constitution not petition has been prematurely filed.
only as a broad charter of powers to resolve conflicting issues and Judicial abstention then would provide the Court with time and
social problems, a means of ordering the life of the nation in times of opportunity to ponder and deliberate on the basic constitutional
normalcy as well as of crisis, but also as a citadel of civil liberties. questions involved and their ramifications which concern inter
TEEHANKEE, J, dissenting: alia the supremacy of civilian authority over the military, the right of
civilians to judicial process as against the executive process of The charges against petitioner and his co-accused were thus
military tribunals, the upholding of Judicial Power as vested by the brought back to the stage of preliminary investigation. On August 30,
Constitution in the Supreme Court and in such inferior courts as may 1973, respondent military commission met and ordered that the
be established by law and the recognition of the individual's liberties hearing of the cases be postponed indefinitely to await the outcome
as guaranteed by the Bill of Rights even in a state of martial law. of the re-investigation ordered under the said Administrative Order.
II. Since the majority has nevertheless resolved to go into the merits The Secretaries of Justice and of National Defense designated their
of the case and the transcendental constitutional issues, a brief representatives. The Chief Justice asked retired Justice J. B. L.
statement of the factual background is required for the proper Reyes, but the latter on August 31, 1973 declined the designation
consideration of the issues on the merits. and also declined as IBP president to designate a representative to
Petitioner (after having been served on August 11 and 18, 1973 at the special committee, on grounds of illegality of the order. Petitioner
his detention quarters with copies of the six criminal charges filed likewise declined to designate his representative.
against him with respondent military commission) filed on August 23, Petitioner filed on September 5, 1973 his first supplemental petition
1973 his original petition at bar for prohibition questioning the to include these developments and to insist that he be granted his
jurisdiction of military tribunals in the absence of a state of war or right to preliminary investigation as prescribed by statutory law, to be
belligerency over civilians like him particularly, for civil offenses conducted by the court of first instance as far as the four charges of
allegedly committed before the proclamation of martial law and subversion under R.A. 1700 are concerned. (On October 31, 1973,
complaining of violation of his constitutional rights in that he was Presidential Decree No. 328 amending P.D. No. 39 prescribing the
deprived of due process and the vested right to preliminary rules of procedure for military tribunals under martial law was issued,
investigation as provided by law and the assistance of counsel with providing for the perpetuation of testimony in cases pending before
right to cross-examine the witnesses against him. military tribunals.)
Petitioner further alleged that the military tribunals are mere No action was taken by the Court on this supplemental petition until
instruments and subject to the control of the President as created by July 11, 1974 when it issued a resolution requiring an answer thereto
him under the General Orders issued by him as Commander-in- which was filed by the Solicitor General on August 21, 1974. On
Chief of the Armed Forces of the Philippines,5 and that he had October 31, 1974, petitioner filed a second supplemental petition
already been publicly indicted and adjudged guilty by the President citing the President's statements to the world press on April 15, 1974
of the charges in a nationwide press conference held on August 24, and August 19, 1974 on the "actual removal" of martial law and that
1971, following the Plaza Miranda bombing of August 21, 1971 and "technically and legally, martial law was lifted with the ratification of
the suspension of the privilege of the writ of habeas corpus under the Constitution last year (1973)." The Solicitor General filed his
Proclamation No. 889 on August 23, 1971. answer thereto on December 11, 1974.
The Court set an urgent preliminary hearing on August 26, 1973 (a Memoranda were filed by petitioner's counsel and by the Solicitor
Sunday) on the question of whether with its membership then on General on March 21, 1975 and March 11, 1975, respectively.
only nine (9) Justices, it had the required quorum to take cognizance Meanwhile, on March 10, 1975, respondent military commission
of the petition. No further action was taken by the Court for following issued ex parte its order granting the prosecution's motion of March
petitioner's refusal to participate in the arraignment and trial set on 7, 1975 "to examine and take the deposition of its witnesses" on
August 27, 1973, the President issued on August 28, 1973 March 31, and April 1 - 4, 1975 until terminated for perpetuation
Administrative Order No. 355, creating a special five-member purposes on the bare allegation that "(T)he petitions of the accused
committee to "reinvestigate the charges against Benigno S. Aquino, Benigno S. Aquino, Jr. pending in the Supreme Court will take time
Jr. and others," composed of a retired Supreme Court Justice to be to resolve resulting in the delay of the perpetuation of the
designated by the Chief Justice as chairman and four members to testimonies of the prosecution witnesses...."
be designated respectively, by the accused-petitioner himself, the Petitioner's counsel filed on March 24, 1975 an urgent motion to
president of the Integrated Bar of the Philippines, the Secretary of restrain respondent military commission from holding the
Justice and the Secretary of National Defense, with the proviso that perpetuation proceedings on the grounds among others that the very
"should the accused decline to designate a representative to the issue of its jurisdiction to take cognizance of civil offenses allegedly
committee, the Chief Justice shall designate someone in his stead committed before martial law by civilians like petitioner was pending
and expressly stating the following premises and objectives: têñ. with this Court and that such proceedings would "short-circuit" the
£îhqw⣠Special Reinvestigating Committee created under Administrative
WHEREAS, Benigno S. Aquino, Jr. and his Order No. 355 even before such committee has commenced its duty
Counsel have repeatedly complained, orally and to determine the existence of "reasonable ground to believe that the
in writing that the accused has been denied offenses charged were in fact committed and the accused is
his constitutional right to due process and have probably guilty thereof" and "whether or not petitioner should be held
openly questioned the regularity and fairness of for trial."7
the application to him of the established On April 1, 1975, this Court, then composed of ten members issued
procedure sanctioned by law and practice; its resolution that it lacked the "necessary quorum to act on
WHEREAS, although the Prosecution Staff is petitioner's said urgent motion.
assumed to have conducted a fair and impartial On April 7, 1975, petitioner's counsel filed an urgent manifestation
initial investigation, it is desirable to reassure the averring that this Court without a qualified quorum could issue the
accused that he continues to enjoy his temporary restraining order prayed for so as not to render the case
constitutional right to due process and to moot and apprising this Court that after respondent military
remove any doubt whatsoever in the mind of commission had on April 1, 1975 held, consistently with Elago vs.
anybody that only after finding a prima People8 that the perpetuation proceedings are not a part of the trial
facie case against him were charges filed; and granted petitioner's request to be returned to his detention
WHEREAS, it is necessary for the above quarters, ruling that he could refuse to be present at the proceedings
purpose that a Committee be created to conduct since he had expressly waived his presence, as allowed in P.D. No.
a re-investigation of said charges to 328, it reversed itself at the military prosecutor's instance on April 4,
demonstrate that everything is being done 1975 and now ruled that the perpetuation proceedings are part of the
to insure utmost fairness, impartiality and trial and that petitioner must be present at the proceedings (which
objectivity in the prosecution of the charges would take two to three months according to the military prosecutor's
against the accused and to determine whether manifestation) and that petitioner must be physically present
really there is reasonable ground to believe that throughout the proceedings even against his will.
the offenses charged were in fact committed Petitioner's counsel further manifested that petitioner's request to
and the accused is probably guilty thereof. respondent military commission to suspend the proceedings for
xxx xxx xxx seven days to allow his counsel time and opportunity to seek
The Committee shall convene immediately, appropriate relief from this Court was summarily denied and
conduct the preliminary investigation in the most petitioner then delivered his statement that if denied this "last basic
expeditious manner and submit its findings to right of a human being ... to be let alone" he would have no
the Secretary of Justice. alternative "but to go on a hunger strike, as a form of silent protest
To prevent a failure or delay of justice, any against a procedure that is intended to humiliate and dehumanize
testimonial evidence presented before the me."
Committee may be used in any proceeding or The perpetuation of testimony proceedings thus commenced on
action before any court or tribunal, civil or April 4, 1975 and continued on succeeding days with the military
military, without need of presenting the witness prosecutor presenting as the first state witness Benjamin M. Bie, Jr.
or witnesses who testified in case such witness alias Huk Commander Melody, and with petitioner being compelled
or witnesses have died or left the country or to be present throughout the proceedings. This witness, Bie together
become unable to testify.6 with another listed witness Benjamin Sanguyo alias Huk
Commander Pusa were originally co-accused with petitioner in four the President's power as Commander-in-Chief or on any theory of
subversion charges but the charges against them were withdrawn martial law."
under a "nolle prosequi" order issued by the Secretary of National Thus, the President has filled up vacancies in the judiciary and
Defense dated March 15, 1975. "allayed effectively the fears expressed during the initial days of
On April 8, 1975, the Court ordered the issuance of a temporary martial law that the rule of the military would prevail because other
restraining order enjoining respondent military commission from countries under martial law had dispensed with civilian courts of
further proceeding with the perpetuation proceedings until the matter justice" and stressed the supremacy of the Constitution at the 38th
is heard and further orders and set petitioner's urgent motion and anniversary rites of the AFP when he told the Armed Forces that
related incidents for hearing on April 14, 1975. It was at this hearing "The military is the force that enforces the law, but the civil
that petitioner's counsel presented the simple motion to withdraw the government is the ruling power in our country," and that "we have
petition and all other pending motions in compliance with the stuck to the Constitution. We have pledged loyalty to that
petitioner's express wish. In compliance with the Court's instruction Constitution."17
at the hearing to inquire into petitioner's reasons for his withdrawal 2. Even assuming that military tribunals could validly exercise
motion, his counsel on the next day, April 15, 1975, filed their jurisdiction over offenses allegedly committed by civilians not
manifestation submitting therewith petitioner's 6- page letter of April withstanding the absence of a state of war or belligerency and the
14, 1975 addressed to his wife, mother, relatives and friends stating unimpaired functioning of the regular courts of justice, such
his reasons therefor and for continuing the hunger strike" (he) began jurisdiction could not encompass civil offenses (defined by the
ten days ago," inter alia, that "(he) felt that the case (he) had filed general civil law as per the Revised Penal Code and Republic Act
since 1973 in the Supreme Court had become meaningless; that he 1700 known as the Anti-Subversion Act) alleged to have been
has decided to "place (his) fate and (his) life squarely in the hands of committed by civilians like petitioner in 1965, 1967, 1969, 1970 and
... Mr. Marcos;" that "The meaning and thrust of (his) absence or 1971, long before the declaration of martial law as of September 21,
presence, in the proceedings before the military tribunal" and he has 1972.
solemnly vowed to continue his hunger strike as a protest against: The U.S. Supreme Court aptly pointed out in Toth vs. Quarles,
"1. the trial of civilians before military tribunals . .; 2. the lack of supra in ruling that discharged army veterans (estimated to number
judicial independence . . for as long as our judges remain casuals'. .; more than 22.5 million) could not be rendered "helpless before some
3. the absence of a genuine free press ... ; (and) 4. the further latter-day revival of old military charges"18 and subjected to military
continuance of martial law and its evils and repressions...." trials for offenses committed while they were in the military service
III. The transcendental character of the constitutional issues raised, prior to their discharge, that "the presiding officer at a court martial is
dealing as they do with the individual's fundamental liberties as not a judge whose objectivity and independence are protected by
guaranteed by the Bill of Rights even in a state of martial law which tenure and undiminished salary and nurtured by the judicial tradition,
concededly is "not a military takeover of civil government but is a military law officer. Substantially different rules of evidence
functions" 9 and recognized under the 1973 Constitution to which all and procedure apply in military trials. Apart from these differences,
have pledged loyalty and wherein we are now called upon to the suggestion of the possibility of influence on the actions of the
discharge the judiciary's great burden of defining its constitutional court-martial by the officer who convenes it, selects its members and
boundaries, compels my vote on the merits which I cast for the the counsel on both sides, and who usually has direct command
granting of the writ of prohibition prayed for against respondent authority over its members is a pervasive one in military law, despite
military commission for the reasons and considerations which are strenuous efforts to eliminate the danger."
hereinbelow respectfully submitted. The late Justice Black speaking for that Court added that "(A) Court-
1. Civilians like petitioner placed on trial for civil offenses under Martial is not yet an independent instrument of justice but remains to
general law are entitled to trial by judicial process, not by executive a significant degree a specialized part of the over-all mechanism by
or military process. Judicial power is vested by the Constitution which military discipline is preserved," and that ex-servicemen
exclusively in the Supreme Court and in such inferior courts as are should be given "the benefits of a civilian court trial when they are
duly established by law.10 Judicial power exists only in the courts, actually civilians .... Free countries of the world have tried to restrict
which have "exclusive power to hear and determine those matters military tribunals to the narrowest jurisdiction deemed absolutely
which affect the life or liberty or property of a citizen." 11 essential to maintaining discipline among troops in active service."
Military commission or tribunals are admittedly not courts and do not More so then should military trials be not sanctioned for civil
form part of the judicial system. As further admitted by the Solicitor offenses allegedly committed by civilians like petitioner long before
General in his answer12, "military commissions are authorized to the declaration of martial law and for which they could have been
exercise jurisdiction over two classes of offenses, whether charged then as well as now before the civil courts which have
committed by civilians or by military personnel either (a) in always remained open and their process and functions
the enemy's country during its occupation by an army and while it unobstructed.
remains under military government or (b) in the locality, not within The Solicitor General's contention that military tribunals have
the enemy's country, in which martial law has been established by "competence to try civil crimes relating to the causes justifying the
competent authority. The classes of offenses are (a) violation of proclamation of martial law"19 in a veiled reference to the subversion
the laws and customs of war and (b) civil crimes, charges against petitioner does not meet the essential requirement
which because the civil courts are closed or their functions of the existence of overpowering necessity or emergency to justify
suspended or limited, cannot be taken cognizance of by the ordinary the trial of petitioner, a civilian, for the said civil offenses by
tribunals." respondent military commission.
Since we are not enemy-occupied territory nor are we under a On the contrary, the President's issuance of Administrative Order
military government and even on the premise that martial law No. 355 on August 28, 1973 for the reinvestigation of the charges
continues in force, the military tribunals cannot try and exercise against petitioner by a non-military special committee establishes
jurisdiction over civilians for civil offenses committed by them which per se that no serious grounds of overpowering necessity or
are properly cognizable by the civil courts that have remained open considerations of national security or emergency stand in the way of
and have been regularly functioning.13 In the leading case of Duncan recognizing petitioner's right to a civilian trial should the results of the
vs. Kahanamoku,14 the U.S. Supreme Court held in setting aside the civilian reinvestigation prove adverse to him.
prison sentences imposed on two civilians by military tribunals that As stated by the present Judge Advocate General in his treatise on
the placing of Hawaii under martial law (after the Japanese Pearl martial law, "Necessity limits both the extent of powers that may be
Harbor attack on December 7, 1941) under the Hawaiian Organic exercised under martial law, and the duration of its exercise. No life
Act15 did not include the power on the part of the military governor to may be taken, no individual arrested or confined, or held for trial, no
supplant civilian laws by military orders and to supplant civil courts property destroyed, or appropriated, no rights of the individual may
by military tribunals, where conditions were not such as to prevent be curtailed or suspended except where necessity justifies such
the enforcement of the laws by the courts. interference with the person or the property. Any action on the part
The late Justice Frank Murphy in his concurring opinion therein of the military that is not founded on the reasonable demands of
repudiated the government's appeal to abandon the "open courts" necessity is a gross usurpation of power, illegal, unjustified, and
rule on the alleged ground of its unsuitability to "modern warfare improper. The broad mantle of martial law cannot cover acts illegal
conditions where all the territories of a warring nation may be in because not justified by necessity, nor proper under the
Combat zones or imminently threatened with long range attack even circumstances. This principle is based not only upon the
while civil courts are operating" as seeking "to justify military fundamental precepts of constitutionalism, but rests on sound
usurpation of civilian authority to punish crime without regard to the reason — that where the action of the matter is not necessary for the
potency of the Bill of Rights," and observing that "Constitutional public ends of the state they are illegal, and the mere
rights are rooted deeper than the wishes and desires of the military." fact that martial law exists will not be a ground for their
And in Toth vs. Quarles16 the U.S. Supreme Court further stressed justification."20
that "the assertion of military authority over civilians cannot rest on
3. Petitioner may not be deprived of his constitutional right to due member) and of whose decision the President is the final reviewing
process by means of the proceedings instituted against him before authority as Commander-in-Chief of the Armed Forces deprives him
respondent-military commission, viz: of a basic constitutional right to be heard by a fair and impartial
(a) The summary ex parte investigation by the chief prosecution staff tribunal, considering that the President has publicly declared the
of the JAGO of the charges filed against him deprived him of his evidence against petitioner "not only strong (but) overwhelming" and
right to be informed of the charges against him and of his right to in petitioner's view thereby prejudged and predetermined his guilt
counsel as expressly recognized now by section 20 of the Bill of merits consideration.
Rights of the 1973 Constitution.21 In petitioner's view, he has been publicly indicted and his guilt
(b) he would be deprived of his vested statutory right to a preliminary prejudged by the President when in a nation-wide press conference
investigation of the subversion charges against him before the on August 24, 1971 following the Plaza Miranda bombing three days
proper court of first instance as required under section 5 of the Anti- earlier of the Liberal Party proclamation meeting, the President
Subversion Act, Republic Act 170022 and of the other charges charged him and disclosed evidence in the possession of the
against him before the proper civilian officials and to confront and government linking petitioner to some illegal and subversive
cross-examine the witnesses against him under Republic Act 5180; activities, in 1965-1971, which are virtually the same charges now
(at the least, the special reinvestigating committee created under filed against him before respondent military commission, and
Administrative Order No. 355 should be activated in order to declared the evidence against petitioner "not only strong (but)
discharge its assigned task of conducting the preliminary overwhelming." The President explained on the same occasion that
investigation and determining whether or not the petitioner should be in not acting against petitioner, he had "erred on the side of
held for trial); (c) he would be deprived of the right to be tried by generosity as well as of liberality hoping that good sense may
judicial process, by the regular, independent courts of justice, with all someday catch up with him" since petitioner was "the only opposition
the specific constitutional, statutory and procedural safeguards senator left in the Senate" after the bombing, but that he did not
embodied in the judicial process and presided over not by military know "what will happen later on, because, of course, the military
officers ("trained and oriented along strict rules of discipline and rigid insist that we must not make any exceptions to the general rule."30
countenance (although) they are human beings with human While one may agree that the President as Commander-in-Chief
hearts"23 who are not lawyers (except the law member), but by would discharge his duty as the final reviewing authority with fealty
judges of at least ten years experience in the practice of law whose to his oath "to do justice to every man," particularly because of his
objectivity and independence are protected by tenure guaranteed by renowned legal sagacity and experience, still under the
the Constitution and are nurtured by the judicial tradition; and environmental facts where the military appears to have been
(d) He would be deprived of the right to appeal to the regular impressed by the President's appraisal of the evidence and without
appellate courts and to judicial review by this Court, in the event of casting any reflection on the integrity of the members of respondent
conviction and imposition of a sentence of death or life imprisonment military commission which petitioner himself acknowledges, the
which the charges carry.24 Article X, section 1 of the 1973 doctrine consistently held by the Court that "elementary due process
Constitution expressly provides that the National Assembly (which is requires a hearing before an impartial and disinterested
vested with the power to define, prescribe and allocate the tribunal"31 arid that "All suitors ... are entitled to nothing short of the
jurisdiction of the various courts) may not deprive this Court of its cold neutrality of an independent, wholly free, disinterested and
jurisdiction over such serious cases, among others. This Court in the impartial
exercise of such jurisdiction has consistently exacted the cardinal tribunal"32 calls for application in the present case.
rule that the prosecution must prove the guilt of the accused beyond This Court in all its jurisprudence on disqualification and inhibition of
a reasonable doubt and required a qualified majority of ten (10) judges has invariably cited as "a salutary norm ... that he (the judge)
votes for affirmance of the death penalty (which requirement is of reflect on the probability that a losing party might nurture at the back
course not found in the Commander-in-Chief's review of the of his mind the thought that the judge had unmeritoriously tilted the
decisions of military tribunals). scales of justice against him" and applied the yardstick that when the
For the military tribunal to try petitioner under these circumstances is basis has been laid for "the possibility of a trial-being tainted by
to deny petitioner due process of law as guaranteed under section 1 partiality, this Court can step in to assure respect for the demands of
of the Bill of Rights as well as under section 17 which further due process" which it has extended primarily for the peace of mind
specifically ordains that "No person shall be held to answer for a and protection of the accused.33
criminal offense without due process of law." The elimination by Respondents' citing of Yamashita vs. Styer34 as justifying the
subsequent decrees of his right to preliminary investigation (with prosecution and trial of civilians by military commissions is in error
right of counsel and of cross-examination) of the subversion charges as that case involved the "trial and punishment of war criminals
before the proper court of first instance under Republic Act 1700 and (which) is an aspect of waging war." Neither is the creation of the
of other rights vested in him at the time of the alleged commission of People's Court after the last war to try those charged with treason in
the offense which were all meant to provide the accused with ample point, for said court as well as similar courts like the Circuit Criminal
lawful protection in the enforcement of said Act, such as the basic Courts which were created by Congress pursuant to its authority
right to be tried by judicial process and the right of judicial review by under the Constitution and vested with special jurisdiction over
this Court would further offend the Constitutional injunction against certain crimes, were created as judicial courts and part of the judicial
the enactment of ex post facto laws which would render it easier to system whose decisions were and are subject to review by the
convict an accused than before the enactment of such law.25 appellate courts, unlike military commissions.
With all such constitutional safeguards, the Court through Mr. Justice 5. Prescinding from the issue of respondent military commission's
Castro in its decision in People vs. Ferrer26 rendered after the lack of jurisdiction over the charges against the petitioner, the
proclamation of martial law, nevertheless enjoined that "even as we examination of the prosecution witnesses and the perpetuation of
uphold the validity of the Anti-subversion Act, we cannot their testimony should properly be held before the Special
overemphasize the need for prudence and circumspection in its Reinvestigating Committee created under Administrative Order No.
enforcement, operating as it does in the sensitive area of freedom of 355 for the simple reason that all proceedings before respondent
expression and belief," and set specific basic guidelines to be military commission were deemed suspended by virtue of the
observed in any prosecution under the Act. Hence, the prohibition reinvestigation ordered by the President to determine whether there
against ex post facto laws laws has been aptly described as "a "really is reasonable ground" to hold petitioner for trial and the
warning against legislative oppression or tyranny" and a provision perpetuation of testimony given before the said Committee is
that "would minimize if not eradicate the possibility of the legislature expressly provided for in the Administrative Order.
itself discrediting the state with its palpable disregard of a basic It was precisely "to reassure the (petitioner) that he continues to
objective, that justice be dispensed with an even hand through the enjoy his constitutional right to due process" and "to insure utmost
duly established organs with a special fitness for the task."27 fairness, impartiality and objectivity" and "to determine whether
Petitioner has thus cited the President's announcement on reality there is reasonable ground to believe that the offenses
December 11, 1974 that the persons charged with assassination charged were in fact committed and the (petitioner) is probably guilty
attempts against him will be tried before the civil courts although the thereof' that the President created under Adm. Order No. 355 on
charges were filed with the military tribunals28 and the President's August 28, 1973 a special five- member committee "to conduct the
recent issuance on March 6, 1975 of Letter of Instruction No. 225 preliminary investigation" of the charges against petitioner.
creating a special five-member panel to conduct an investigation to It may be seen from the above-stated premises and objectives that
re-evaluate the evidence against the therein accused and to the administrative order was issued by the President pursuant to his
determine whether an offense has been committed and whether they "orientation towards the protection of the Bill of Rights (and) the
are probably guilty thereof and if probable cause is found, to file the judicial process." As the President himself declared in the same
appropriate charges.29 nationwide press conference of August 24, 1971: têñ.£îhqwâ£
4. Petitioner's plea that his trial by a military tribunal created by the I am a lawyer, my training is oriented towards
President and composed of the President's own military the protection of the Bill of Rights, because if
subordinates without tenure and of non-lawyers (except the law you will remember, I have repeatedly said, that if
 it were not for the Bill of Rights I would not be preliminary investigation to determine whether or not the charges
here now. If it were not for the judicial process, I against petitioner should stand and petitioner made to face trial.
would not be President of the Republic of the Holding the perpetuation proceedings before the committee would
Philippines....35 dispose of the legal requirements under P.D. No. 328 itself that the
In petitioner's urgent motion of March 24, 1975 for a restraining proceedings be had before a military tribunal with jurisdiction and
order against the holding of perpetuation of testimony proceedings "before which a case is pending." Even though technically, as
before respondent military commission, he precisely complained that contended by respondents, the cases are still pending with the
such proceedings would preempt and render moot the prejudicial military tribunal, it seems obvious from the very terms of
question raised by him in the case at bar challenging the Administrative Order No. 355 that the charges are in fact deemed
commission's jurisdiction to take cognizance of the charges against withdrawn from the military tribunal and the latter cannot hold any
him and would "short-circuit" the reinvestigation ordered by the proceedings for as long as the committee has not completed its
President under Adm. Order No. 355 "even before the said preliminary investigation and determined thereafter the existence of
committee has performed its duty to determine whether or not a prima facie case sufficient to let the charges remain and to require
petitioner should be held for trial" and notwithstanding that "there is petitioner to face trial. The Administrative Order thus expressly
no indication coming from the President of the Philippines that it has provides for the perpetuation of "any testimonial evidence presented
outlived its usefulness — functus oficio — or that it is not fit to before the Committee" and for its use in any proceeding" before any
administer justice to the petitioner."36 court or tribunal, civil or military, without need of presenting the
While petitioner insisted on his right to a preliminary investigation of witness or witnesses who testified in case such witness or witnesses
the subversion charges by the court of first instance as prescribed by have died or left the country or become unable to testify."38*
Republic Act 1700, he nevertheless propounded in his March 21, 6. Assuming nevertheless that the perpetuation of testimony
1975 memorandum that retired Justice J. B. L. Reyes' having proceedings could be properly conducted before respondent military
declined to act as chairman of the committee and to designate a commission, petitioner's physical presence at the proceedings could
representative of the Integrated Bar did not mean that the committee not be compelled by virtue of his express waiver thereof as explicitly
"cannot be made to function (since) in the absence of judicial writ or allowed by the Constitution and by P.D. No. 328 itself.
process, there is nothing to prevent the designation of another On April 1, 1975, respondent military commission had recognized
retired justice of the Supreme Court as chairman, and nothing to petitioner's right to waive his presence at the proceedings and
prevent the incoming president of the Integrated Bar to designate a granted his request to be returned to his detention quarters. But on
representative to the committee."37 As to petitioner's having declined April 4, 1975, it reversed itself at the military prosecutor's instance
to designate his representative, it has already been pointed and ruled instead that petitioner's presence at every stage of the
out, supra,38 that the said order expressly provides that in such event proceeding is indispensable on the ground, as stated by the Solicitor
"the Chief Justice shall designate someone in his stead " General, that "the charges against petitioner involve capital offenses
It is evident then that under the said order, the Chief Justice was and petitioner is in custody and petitioner had claimed in this case
called upon to fill at least the two vacancies by making the substitute that proceedings for the perpetuation of testimony were actually a
designations as therein provided, which would have enabled the part of
committee to discharge its function with a composition of four trial."39 Petitioner's submittal that he cannot be compelled to be
members (while awaiting the designation of the fifth member by the present at the proceedings even against his will by virtue of his
IBP president) but that he refrained from doing so as the matter express waiver is meritorious. Whereas previously such right of
was sub judice because of the pendency of the supplemental waiver of the accused's presence in criminal proceedings was
petition at bar questioning the validity of the order on the ground that generally recognized40 save in capital cases4 l leading to the
it deprived petitioner of his right to investigation by the court of first suspension of trial whenever the accused was at large) or where the
instance on the principal charges of subversion. accused was in custody although for a non-capital offense, the 1973
With the Court's dismissal of the petitions (and petitioner's Constitution now unqualifiedly permits trial in absentia even of
withdrawal thereof) nothing stands in the way now of activating the capital cases, and provides that "after arraignment, trial may proceed
said Special Reinvestigating Committee and its discharging its notwithstanding the absence of the accused provided that he has
assigned task of "conducting the preliminary investigation" and been duly notified and his failure to appear is unjustified,"42 thus
determining whether petitioner should be held for trial in recognizing the right of an accused to waive his presence. P.D. No.
implementation of the order's express objectives of reassuring 328 under which the perpetuation proceedings are being conducted
petitioner of "his constitutional right to due process" and "insuring in military commissions (as the counterpart rule for similar
utmost fairness, impartiality and objectivity in the prosecution of the proceedings before the regular civil courts, as provided in Rule 119,
charges against (petitioner)." section 7 of the Rules of Court) explicitly provides that after
Such preliminary investigation by the Special Reinvestigating reasonable notice to an accused to attend the perpetuation
Committee with its diverse membership and emphasis that those proceedings, the deposition by question and answer of the witness
designated must meet the qualifications of being "learned in the law, may proceed in the accused's absence and the failure or refusal to
reputed for probity, integrity, impartiality, incorruptibility and fairness attend the examination or the taking of the deposition shall be
and must have had no previous connection in this matter either as considered a waiver."43 Thus, an accused's right of total waiver of his
counsel or investigator" is certainly far more desirable than the presence either expressly or impliedly by unjustified failure or refusal
present situation where such grave charges were summarily filed to attend the proceedings is now explicitly recognized and he cannot
with the military commission against petitioner without his having be compelled to be present as against his express waiver.
been previously informed of the charges against him nor given the Even as among the members of the Court who voted as per the April
benefit of any preliminary investigation. 25, 1975 resolution in favor of qualified waiver, i.e. that the
Going by the very standards of "utmost fairness, impartiality and accused's presence could be required in the instances where his
objectivity" set by the President in the Administrative Order, and presence is needed for his identification by the prosecution witness,
prescinding from the unsettled question of whether petitioner would the view was expressed that such presence could be dispensed with
have through counsel the right of cross-examination of the witnesses if his waiver expressly included an admission of his identification by
presented against him, it will be readily appreciated that in such name by the witnesses-deponents. It should be noted that such an
preliminary investigation by a non-military special committee wholly additional requirement would be superfluous because of the total
composed of civilians, petitioner may then fairly and properly be waiver as well as because of the disputable
represented by experienced counsel who can competently handle presumption44 established by the rule of evidence of "identity of
his defense and at least present timely objections to the admission person from identity of name"45, aside from the many prominent
of incompetent or inadmissible evidence, not to mention that the five public positions occupied by petitioner through which his
men "learned in the law" composing the committee would most identification is made by the prosecution witnesses as noted from
likely motu propio rule out any such inadmissible evidence. This their affidavits as submitted by the Solicitor-General.
would be in contrast to the perpetuation proceedings in the military 7. Petitioner's objection to the perpetuation proceedings, particularly
tribunal where petitioner has discharged all his counsels, civilian and if they were to be considered part of the trial, since the very question
military, because of the lack of jurisdiction, in his view, (as well as at issue in the case at bar on military commissions' lack of
per this opinion) of the military commission over civilians like him for jurisdiction over pre-martial law civil offenses allegedly committed by
alleged pre-martial law civil offenses and the nullity of the civilians like petitioner would be preempted and rendered moot by
proceedings therein and thus has been deprived, although by his the proceedings should have been given due consideration by said
own act, of indispensable legal representation and assistance in the commission, instead of being used by it to require his presence
proceedings where his very life, liberty and honor are at stake. against his will.
The objective of the perpetuation proceedings may properly be It should be noted that the Solicitor General's second ground for
achieved by the Special Reinvestigating Committee before whom justifying respondent commission's reversal order requiring
the testimonial evidence sought to be perpetuated should be petitioner's presence was that "petitioner had claimed in this case
presented in the discharge of its assigned task to conduct a
that proceedings for the perpetuation of testimony were actually a judicial process" and the setting aside of the constitutional mandate
part of trial", without however stating respondents' own stand. that lodges judicial power in the regular courts of law and not in
The prevailing doctrine, as enunciated by the Court in People vs. military tribunals and guarantees civilians the benefits of a civilian
Elago46 appears quite clear that "It is not a trial where the defendant court trial. To subject civilians to military trial just like military
has to introduce his evidence. It is only taking down the statements personnel and troops and enemy belligerents rather than to civilian
of the witnesses for the prosecution with opportunity on the part of trial by the regular civil courts is to negate the cardinal principle and
the defendant to cross-examine them."47 The Court, citing Rule 111 state policy of supremacy at all times of civilian authority over the
(e) of the 1940 Rules of Court (now reproduced in Rule 115 (f) of the military. 55*
Revised Rules of Court)48 and the great weight of judicial authorities In seeking to justify the substitution of the executive or military
against the admission of a deposition or previous testimony of a process by military commissions for the judicial process of
witness who is present in court or is available at the actual trial, set preliminary investigation and trial by the regular civil courts with right
aside the appellate court's decision affirming conviction therein and of appeal to the Supreme Court invoked by petitioner as his
ruled that the trial court and the appellate court "committed constitutional right, the Solicitor General in his memorandum has
reversible error" in admitting the perpetuated testimonies or made a number of bare assertions without even any factual
depositions of the two American prosecution witnesses when they averments or allegations in support thereof, as follows:têñ.£îhqwâ£
were actually present in court at the time of trial. Indeed, civil courts may be open and
The Court thus held that: têñ.£îhqw⣠undisturbed in the execution of their functions
It is clear from the rule ... that the testimony or and yet may be wholly incompetent to avert a
deposition of a witness may be read or threatened danger, or to punish, with adequate
submitted in evidence only when the deponent promptitude and certainty, the guilty
is dead or incapacitated to testify or cannot be conspirators. In times of rebellion it may often
found in the Philippines. If he was present in happen that the judges are in active sympathy
court, there is no need for introducing his with the rebels, and courts their most efficient
deposition in evidence because his testimony is allies. (Ex parte Milligan, 4 Wall. 18L. Ed. 281,
the best evidence especially in a case like the 299 [Chase, C.J., concurring.])
present where the deponent in giving his There may be other reasons justifying the
deposition had not been cross-examined by the creation of military tribunals. Judges may be
defendant, although of course, said failure to unwilling to try the rebels out of fear or other
cross examine may not be laid at the door of the motives.
prosecution.49 xxx xxx xxx
The most that can be said then is that the perpetuation proceedings In our case, study shows that Communist
may be conditionally considered part of the trial only when the subversion and propaganda aim at the
deponent-witness is at the time of trial dead or incapacitated to paralyzation of the will and the terrorism of the
testify or cannot with due diligence be found in the Philippines. population and the government functionary. In
Absent any of these conditions, it is not a part of the trial and the many parts of the country the rebels succeeded
witnesses must give their testimony anew (not their previous or in intimidating and silencing not only the
perpetuated deposition) as the best evidence subject to the crucible offended parties and their witnesses but even
of cross-examination. the judges.
Hence, petitioner had cause to complain against the military xxx xxx xxx
prosecutor's ambivalent posture that "In the first day he argued we Still another reason for trial by military tribunals
must proceed (notwithstanding the pendency before this Court of the is the possibility that the accused may exploit
petition questioning the commission's lack of jurisdiction) because procedural advantages available in the civil
this is not part of the trial. Now, the ruling adversely was handed courts and render military operations against the
down (allowing petitioner's waiver of his presence), but this is a part rebellion difficult. (Citing a West Virginia case
of the trial, he (1921) where the court therein reasoned that
says."50 "Participants (in an insurrection) arrested and
8. Withal, these questions presented serious, if not difficult, committed to the civil authorities could easily
questions of law, and particularly, the petitioner's right to totally find means of delaying trial, and liberated on
waive his presence at the proceedings presented an important new bail return to the insurrectionary camp and
question that required an authoritative ruling from this Court because continue to render aid (and) the civil tribunals...
of the new provisions of the 1973 Constitution involved. are wholly inadequate to the exigencies of a
The granting of petitioner's urgent pleas on April 4, 1975 to be given state of war, incident to an invasion or
a period of at most seven days to file a written motion for insurrection.")56
reconsideration of the commission's reversal order of the same date These reflections on the competence of the civil courts find no
requiring his presence at every stage of the proceedings (estimated justification in the facts of public notice and knowledge, to wit:
to last from two to three months, according to the military A number of judges of courts of first instance have been removed
prosecutor51) and to seek relief from this Court, instead of yielding to with the acceptance of their resignations but there is not a single
the stubborn insistence of the military prosecutor that the recorded case where the "judges (were) in active sympathy with the
perpetuation be "done immediately" on the gratuituous assertion that rebels, and courts their most efficient allies"; There is not a single
"precisely because if the ground is delay, the witnesses whose known case since the martial law proclamation of "judges (being)
testimonies are sought to be presented would have been long dead unwilling to try the rebels out of fear or other motives" or of the
if perpetuation is held up"52 and summarily denying petitioner's judges, complainants and witnesses having been intimidated and
"repeated appeals . . as fast as they were presented" as graphically silenced by rebels;
reported by the press53 would have averted triggering off the hunger Neither is there a single known instance of an accused rebel having
strike commenced on the same date by petitioner who felt that he "exploited procedural advantages available in the civil courts and
was unjustly denied his right of waiver and the "last basic right of a rendering military operations against the rebellion difficult since
human being . . to be left alone." those suspected of participation or conspiracy in the communist
Such an urgent serious plea to be given a reasonable time and rebellion have been arrested without right to bail; General Order No.
opportunity to seek recourse from this Court would have been 49 issued by the President on October 4, 1974 restored to the civil
readily acceded to by a regular court in line with established judicial courts a large number of criminal cases that were transferred to
usage and procedure. The Solicitor General's reply of April 11, 1975 military tribunals upon the proclamation of martial law on the express
after this Court's issuance of the restraining order of April 8, 1975 premises that "positive steps have been taken to revitalize the
suspending further proceedings by the commission-in contrast to the administration of justice and the new Constitution authorizes the
military prosecutor's unyielding stand incongruously branding the reorganization of the courts" and "although there still exist areas of
filing with this Court of the petition at bar and of the supplemental active rebellion in the country, on the whole there has been such an
petitions as "delaying tactics" and "dilatory moves"54 — expressly improvement in the general conditions obtaining in the country and
"welcome(d) any ruling by this Court whether under Presidential in the administration of justice as to warrant the return of some of the
Decree No. 328 the presence of the accused is necessary or criminal cases to the jurisdiction of civil courts"; and
indispensable." The decision of this Court upholding petitioner's right These premises of G.O. No. 49 are borne out by the data and
of waiver vindicates petitioner's assertion before respondent military published reports. The twenty (20) military commissions (14
commission of his right "to keep silent ... to stay alone ... not to ambulatory and 6 regional commissions)57 hearing cases from time
participate. ."55 — a right which is his to exercise or not. to time in marathon hearings as the pressures of the military service
9. Respondents have utterly failed to show the existence of "public allow the military commissions to convene could not conceivably
danger (that) warrants the substitution of executive process for the match the work and cases disposition of around three hundred and
twenty (320) courts of first instance and circuit criminal courts all Of course the problem here is, if you say that
over the country working continuously and regularly throughout the martial law leads to democracy, how long are
year. you going to maintain martial law? I say again
The argument of procedural delays in the civil courts and need of that only as long as necessary. As the
prompt and certain punishment has been long cut down by the late constitutionalists put it, necessity gave life to
Justice Frank Murphy in his concurring opinion in Duncan58 when he martial law and martial law cannot continue
stressed that "civil liberties and military expediency are often unless necessity allows it to live .64
irreconcilable and that "the swift trial and punishment which the The cited Transitory Provision, known as the validating provision
military desires is precisely what the Bill of Rights outlaws. We would puts the imprimatur of a law upon the President's acts and decrees
be false to our trust if we allowed the time it takes to give effect to under martial law which were not within or beyond his allocated
constitutional rights to be used as the very reason for taking away constitutional powers. As aptly stated by Justice Muñoz Palma in her
those constitutional rights," as follows: têñ.£îhqw⣠separate opinion in the Habeas Corpus cases, the people could not
Delays in the civil courts and slowness in their by the 1973 Constitution have thrown away "all their precious
procedure are also cited as an excuse for liberties, the sacred institutions enshrined in their Constitution, for
shearing away their criminal jurisdiction, that would be the result if we say that the people have stamped their
although lack of knowledge of any undue delays approval on all the acts of the President executed after the
in the Hawaiian courts is admitted. It is said that proclamation of martial law irrespective of any taint of injustice,
the military 'cannot brook a delay' and that 'the arbitrariness, oppression, or culpable violation of the Constitution
punishment must be swift; there is an element of that may characterize such acts. Surely, the people acting through
time in it, and we cannot afford to let the trial their constitutional delegates could not have written a fundamental
linger and be protracted.' This military attitude law which guarantees their rights to life, liberty and property, and at
toward constitutional processes is not novel. the same time in the same instrument provide for a weapon that
Civil liberties and military expediency are often could spell death to these rights."
irreconcilable. It does take time to secure a The contention that the decrees and orders on military commissions
grand jury indictment, to allow the accused to as "part of the law of the land are beyond question" really begs the
procure and confer with counsel, to permit the question, for as was stressed by Justice Muñoz Palma, it would be
preparation of a defense, to form a petit jury, to "incongruous" that while the acts of the regular National Assembly
respect the elementary rules of procedure and as the "permanent repository of legislative power" are subject to
evidence and to judge guilt or innocence judicial review, "the acts of its temporary substitute, that is, the
according to accepted rules of law. But incumbent President, such as the decrees and orders in question
experience has demonstrated that such time is would be claimed to be "beyond question."
well spent. It is the only method we have of Indeed, the majority resolution recognizes that "Of course, from the
insuring the protection of constitutional rights fact that the President has this range of discretion, it does not
and of guarding against oppression, The swift necessarily follow that every action he may take, no matter how
trial and punishment which the military desires is unjustified by the exigency, would bear the imprimatur of validity."
precisely what the Bill of Rights outlaws. We While the decrees and orders on military tribunals were made part of
would be false to our trust if we allowed the time the law of the land by the cited Transitory Provision (assuming that
it takes to give effect to constitutional rights to they had been properly submitted for the purpose) still this general
be used as the very reason for taking away and transitory provision can in no way supersede or nullify the
those rights. It is our duty, as well as that of the specific allocation of jurisdiction and judicial power to the Supreme
military, to make sure that such rights are Court and the regular courts of justice as established by law under
respected whenever possible, even though time Article X section 1 of the Constitution nor their proper exercise of
may be consumed. jurisdiction to the exclusion of non-judicial agencies, under section 8
As already indicated above, it should be noted that no actual case of of Article XVII which provides that: têñ.£îhqwâ£
undue delays in the prosecution of criminal cases in the regular civil SEC. 8. All courts existing at the time of the
courts has been claimed by respondents, nor has it been shown that ratification of this Constitution shall continue and
military necessity or public danger require that petitioner be deprived exercise their jurisdiction, until otherwise
of his rights to due process and to the cold neutrality of an impartial provided by law in accordance with this
tribunal under the judicial process, should the reinvestigation Constitution, and all cases pending in said
ordered by the President bind him over for trial. courts shall be heard, tried, and
10. The Solicitor-General's submittal that "the decrees and orders determined under the laws then in force. The
relating to military commissions are now part of the law of the land provisions of the existing Rules of Court not
and are beyond question" and that "as the trial and punishment of inconsistent with this Constitution shall remain
civilians by military tribunals under the circumstances ... are valid operative unless amended, modified, or
and constitutional, objections based on differences between civil and repealed by the Supreme Court or the National
military courts are immaterial" is constitutionally infirm and Assembly. (Art. XVII)
untenable. Insofar as the questioned decrees and orders encroached upon the
The Solicitor-General's premise is that "with the ratification of the jurisdiction of the regular courts over the trial of civilians, they must
new Constitution martial law as proclaimed by the President became be deemed abrogated by the cited provisions of the Constitution
part of the law of the land and now derives its validity from the new itself, in accordance with the established rule that statutes as well as
constitution"59 and that by virtue of section 3 (2) of the Transitory executive orders and regulations that are inconsistent with and
Provisions60 the decrees and orders on the military commissions are transgress the provisions of a new Constitution must be deemed
now also part of the law of the land and beyond question states a repealed thereby.
rather prolix and sweeping concept that cannot be precipitately As noted in the writer's previous opinions,65 the specific legislative
sanctioned. powers granted the incumbent President in section 3 (2) of the
Martial law has not become part of the law of the land and beyond article on Transitory Provisions are limited to "modifying, revoking or
question by virtue of the coming into force of the 1973 Constitution. superseding the incumbent President's validated acts and decrees
In fact, the said Constitution has precisely reproduced the 1935 done or issued prior to the proclaimed ratification on January 17,
Constitution's commander- in-chief clause with power to declare 1973 of the 1973 Constitution. No post-ratification legislative powers
martial law limited to exactly the same causes of invasion, are therein granted the incumbent President and such legislative
insurrection or rebellion or imminent danger and with exactly the power or more accurately military power under martial rule that has
same requirement that the public safety require it.61 Going by the been exercised by him thereafter (in the absence of a parliament)
doctrine enunciated in Lansang vs. Garcia62 by a unanimous Court, must rest on the law of necessity of preservation of the State and the
the existence of factual bases for the proclamation and continuation decreeing of such necessary measures as will safeguard the
of martial law may under the said provision be judicially inquired into Republic and suppress the rebellion (or invasion). On the other
in order to determine the constitutional sufficiency thereof as well as hand, section 7 of the same Article expressly reserves to the
to circumscribe the constraints thereof, in particular cases where National Assembly the power to amend, modify or repeal "all existing
they clash with an individual's constitutional rights, within the bounds laws not inconsistent with this Constitution (which) shall remain
of necessity for the public ends and the public safety, as indeed this operative." Among such existing laws whose "amendment,
Court did pass on such questions in the Habeas Corpus modification or repeal are reserved to the National Assembly are the
cases.63 And as the President expressly stated at his world-wide laws herein involved, viz, the Anti-Subversion Act, Republic Act No.
satellite press conference of September 30, 1974, the duration of 1700 and the existing Rules of Court66 with their safeguards for the
martial law is "only as long as necessary" as per the following rights of an accused defendant. At any rate, any such presidential
pertinent excerpt of his statement thereon: têñ.£îhqw⣠decrees and orders cannot prejudice the vested rights of a
defendant-accused as to pre-martial law offenses allegedly government officials and agencies by proper procedures in the
committed by him nor be given an adverse ex post facto effect courts. As held by the Court in Garcia vs. Macaraig, "In a system like
against him. ours, every exercise of governmental competence, whether coming
11. Respondents' assumption of the validity of military trials of from the President or from the lowest official, may be challenged in
civilians and conclusion that objections based on differences court in an appropriate legal
between civil and military courts are immaterial must necessarily fail. proceeding."72
It has been shown that respondents have failed to show the As was stressed by the late Chief Justice Stone in Duncan, supra,
existence of some overpowering factor that makes a recognition of "executive action is not proof of its own necessity, and the military's
petitioner's and other civilians' constitutional rights to due process judgment here is not conclusive that every action taken pursuant to
incompatible with the public safety as to warrant the temporary the declaration of martial law was justified by the exigency. In the
casting aside or suspension of such rights. On the contrary, the substitution of martial law controls for the ordinary civil processes,
issuance of the reinvestigation order under Administrative Order No. 'what are the allowable limits of military discretion, and whether or
355 for the non-military Special Reinvestigating Committee created not they have been overstepped in a particular case, are judicial
thereunder to conduct a preliminary investigation of the charges questions.' Sterling v. Constantin, supra (287 US 401, 77 L ed 387,
against petitioner shows that no element of public safety is herein 53 S Ct 190).
involved. The Court's judgment at bar is therefore of the utmost importance
The vested rights invoked by petitioner as essential elements of his since under Article 8, Civil Code, "Judicial decisions applying or
basic right to due process, which are not granted him under the interpreting the laws or the Constitution shall form a part of the legal
decrees and orders for his trial by respondent military commission, system of the Philippines." As defined by Knovitz "the Constitution
are substantial and vital, viz. his right to a preliminary investigation and the laws enacted by the legislatures and the judgments and
as apparently recognized by Administrative Order No. 355 (as to the orders of the courts constitute the Rule of Law."
non-subversion charges) with right to counsel and of cross- The President has often declared that "The New Society looks to
examination of the witnesses against him, and the right under the individual rights as a matter of paramount concern, removed from
Anti-subversion Act to a preliminary investigation by the proper court the vicissitudes of political controversy and beyond the reach of
of first instance; his right as a civilian to be tried by judicial process, majorities. We are pledged to uphold the Bill of Rights and as the
by the regular independent civilian courts presided by permanent exigencies may so allow, we are determined that each provision
judges with tenure and with all the specific safeguards embodied in shall be executed to the fullest, ...."73
the judicial process; and his right to appeal in capital cases to this While stressing that "martial law ... is a temporary constitutional
Court wherein a qualified majority of ten (10) affirmative votes for expedient of safeguarding the Republic"74 and "a temporary phase in
affirmance of the death penalty is required. the development of our
The ordinary layman as well as practitioner are totally unfamiliar with country,"75 the President has thus called for the Constitution to
the summary rules and procedures of military commissions as "remain firm and stable," has rejected the "exercise (of) power that
compared to the established procedures under the Rules of Court can be identified merely with a revolutionary government" that
before the civilian courts, which per se places the civilian on trial makes its own law76 and has called on every citizen to "remain
before a military commission in a disadvantageous position. A steadfast on the rule of law and the Constitution", as follows: têñ.
cursory review of the transcripts furnished the Court shows these £îhqwâ£
peculiarities that normally would not occur in civilian trials, as . . . Whoever he may be and whatever position
follows: he may happen to have, whether in government
The swearing in at the commencement of the perpetuation or outside government, it is absolutely
proceedings on March 31, 1975 of two newly-appointed members;67 necessary now that we look solemnly and
The withdrawal on March 15, 1975 of the charges against Huk perceptively into the Constitution and try to
Commanders Melody and Pusa who were originally named as co- discover for ourselves what our role is in the
accused principals in the four subversion charges and their successful implementation of that Constitution.
utilization as state witnesses, which according to the commission's With this thought, therefore, we can agree on
law member "automatically takes effect. The military commission one thing and that is: Let all of us age, let all of
cannot pass upon such withdrawal"68 in contrast to the procedure in us then pass away as a pace in the
the civilian courts where the discharge of accused persons to be development of our country but let the
state witnesses must meet certain requirements in the interest of Constitution remain firm and stable and let
truth and justice, e.g. that the "defendant (to be discharged) does not institutions grow in strength from day to day,
appear to be the most guilty" and "has not at any time been from achievement to achievement, and so long
convicted of any offense involving moral turpitude" as determined in as that Constitution stands, whoever may the
the judgment of the court 69; and man in power be, whatever may his purpose be,
The military prosecutor (designated as trial counsel) acts in his own that Constitution will guide the people and no
description as "a 'Glorified Chimoy' of the Military Commission. He man, however powerful he may be will dare to
acts not only as Prosecutor of Military Commission No. 2 but he acts destroy and reck the foundation of such a
as a general FACTOTUM or a MAN FRIDAY of this Military Constitution.
Commission. . (and) he prepares the record of the trial."70 These are the reasons why I personally, having
As far as is generally known, the military commission at the proclaimed martial law, having been often
conclusion of the trial takes a secret written ballot with at least two- induced to exercise power that can be identified
thirds of the members present to arrive at its summary findings of merely with a revolutionary government, have
Guilty or Not Guilty, without entering a written decision which "shall remained steadfast on the rule of law and the
clearly and distinctly state the facts and the law on which it is based" Constitution. I would recommend that if the
as is mandatorily required by the Constitution of every decision of a President can do this, it the President can
civil court of record. 70* restrain the exercise of his own powers, every
12. The transcendental constitutional issues involved in the case at citizen for his part should not find it a burden to
bar which the majority has resolved to decide on the merits despite participate in this act of self-denial and self-
petitioner's withdrawal motion call for adjudication on the basis of abnegation, as an earnest to the future of our
enshrined principles of constitutionalism and the rule of law, as race and our people.77
unequivocably espoused by the President himself. The case at bar This is but to state that no one should be above or below the law and
asserts the right of civilians to the judicial process of civilian trials by to reiterate the classic dictum that "The Constitution . . . is a law for
the regular civil courts (particularly for pre-martial law offenses) as rulers and people, equally in war and in peace, and covers with the
against the executive process of trial by military tribunals and hinges shield of its protection all classes of men, at all times, and under all
on this Court's upholding the principle that the individual in the circumstances."78 In the relatively recent case of Phil. Blooming Mills
absence of overpowering necessity or public danger, must be Employees' Organization vs. Phil. Blooming Mills,79 Mr. Justice
accorded his constitutional rights as guaranteed by the Bill of Rights Makasiar restated for the Court certain "basic concepts and
even in a state of martial law. A corollary principle would be that the principles" of constitutionalism, which bear reproducing as they
continuation of martial law for institutionalization of reforms is not concern the issues at bar, as follows: têñ.£îhqwâ£
incompatible with recognizing the fundamental liberties granted in (1) In a democracy, the preservation and
the Bill of Rights. enhancement of the dignity and worth of the
The Bill of Rights of the Constitution specifies the powers that have human personality is the central core as well as
been withheld from the government and are reserved to the the cardinal article of faith of our civilization. The
people .71 But the freedom guaranteed by it against the inviolable character of a man as an individual
overwhelming power of the State would be meaningless and of no must be "protected to the largest possible extent
use unless citizens could vindicate and enforce them against the
 in his thoughts and in his beliefs as the citadel of At the outset, I would like to underscore the fact that this is the first
his person."80 decision of this Court regarding major martial law issues wherein the
(2) The Bill of Rights is designed to preserve the main opinion carries the unqualified concurrence of the required
ideals of liberty, equality and security "against number of justices for doctrinal purposes. Since I have heretofore
the assaults of opportunism, the expediency of regretted Our failure to agree on a common opinion that would not
the passing hour, the erosion of small be subject to varying constructions, including distorted and self-
encroachments, and the scorn and derision of motivated ones which could be peddled around for propaganda
those who have no patience with general purposes by those who for reasons of their own cannot see anytime
principles."81 right in the present order, it is to me a cause of genuine satisfaction
In the pithy language of Mr. Justice Robert that at long last the Court has been able to render the instant opinion
Jackson, the purpose of the Bill of Rights is to and judgment, touching on important and basic constitutional and
withdraw "certain subjects from the vicissitudes legal features of the prevailing martial law administration, in a
of political controversy, to place them beyond manner that leaves no room for doubt as to the meaning and scope
the reach of majorities and officials, and to of Our pronouncements.
establish them as legal principles to be implied To be more specific, the main opinion in this case and the rulings
by the courts. One's rights to life, liberty and therein contained own the full support of at least eight members of
property, to free speech, or free press, freedom the Court, without counting what I consider to be the close-enough-
of worship and assembly, and other to-concurrence posture of Mr. Justice Fernando, which betrays no
fundamental rights may not be submitted to a little effort to reconcile long cherished traditional views with the
vote; they depend on the outcome of no innovative and progressive juridical concepts emerging from the
elections."82 Laski proclaimed that "the imperatives of the legal character of the presently established
happiness of the individual, not the well-being of government. In the light of the constitutional requirement of ten (10)
the State, was the criterion by which its votes for a declaration of invalidity of any order of the President,
behaviour was to be judged. His interests, not eight negative votes is more than impressive. And certainly, all the
its power, set the limits to the authority it was rulings in the main opinion, having as they do have the support of
entitled to exercise."83 those eight votes, constitute authoritative doctrines, against which,
xxx xxx xxx the contrary views of any member of the bar should have no more
Mr. Justice Douglas articulated this pointed than academic value. At these times when it is best that the legal
reminder: foundations of the existing government should be securely solidified
The challenge to our liberties comes frequently to better and faster achieve the ends for which martial law has been
not from those who consciously seek to destroy proclaimed, the pronouncements of the Court in this case should put
our system of government, but from men of an end to an effort to discredit the actions of this Government as
goodwill-good men who allow their proper being founded only on might rather than right. Indeed, my faith is
concerns to blind them to the fact that what they that the rule of law obtains today as it has always obtained before,
propose to accomplish involves an impairment arid due consideration and corresponding accommodation accorded
of liberty. to the requirements of the emergency confronting the nation do not
... The motives of these men are often detract in any way from the effective supremacy of the law.
commendable. What we must remember, 1. Petitioner motion to withdraw denied
however, is that preservation of liberties does It is a settled rule consistent with the fitting dignity of judicial
not depend on motive. A suppression of liberty proceedings that after a case has been submitted for decision,
has the same effect whether the suppressor be withdrawal of the same from the jurisdiction of the court is a matter
a reformer or an outlaw. The only protection addressed to its sound discretion and is far from being a matter of
against misguided zeal is constant alertness of right on the part of any of the parties. For obvious reasons, a party
the infractions of the guarantees of should not be allowed to provoke issues of far reaching interest and
liberty contained in our Constitution. Each importance and hurl accusations against the actuations of the
surrender of liberty to the demands of the adverse party, thereby creating doubts in the public mind as to the
moment makes easier another, larger validity of said actuations, and thereafter, upon being confronted with
surrender. The battle over the Bill of Rights is a the defenses of his opponent and sensing perhaps probable defeat,
never is a never ending one. to just take a retreat, without expressly admitting the infirmity of his
... The liberties of any person are the liberties of position, thereby making sure that he can with relative impunity
all of us. continue with his critical attitude in the manner suitable to his
... In short, the liberties of none are safe unless convenience and purposes. Observance of the laudable policy of
the liberties of all are protected. terminating litigations at the earliest opportunity may not be invoked
... But even if we should sense no danger to our when the evident result is detriment to the more paramount objective
own liberties, even if we feel secure because of having a definite ruling by the Supreme Court as to what the law is
we belong to a group that is important and in regard to the matters of vital public interest actually and properly
respected, we must recognize that our Bill of brought to it for adjudication.
Rights is a code of fair play for the less But the imperative need to settle the important issues raised in this
fortunate that we in all honor and good case is not the only reason I have for voting to deny petitioner's
conscience must observe.84 motion. When petitioner was required by the Court to amplify his
If as stressed above uniformly by the President and the cited legal initial unreasoned request to be allowed to withdraw all his petitions,
authorities, supra, the freedoms guaranteed by the Bill of Rights are motions and other incidents herein, his counsel submitted a letter
"removed from the vicissitudes of political controversy (and) beyond purportedly coming from petitioner, wherein he vehemently cast
the reach of majorities and officials" and are established "as legal aspertions against this Court, alleging that he does "not want
principles to be applied by the courts" and "may not be submitted to anything from the Supreme Court, and that the whole thing had been
a vote; they depend on the outcome of no elections," then it is designed, composed and orchestrated in Malacañang" and that his
respectfully submitted that the principles of fundamental public policy "legal battles in the Supreme Court are now over. Mr. Marcos is the
enshrined in the Bill of Rights that guarantee to every individual due single genius, composing and directing all the proceedings, whether
process and fair play, regardless of who he is and of whoever may in the military tribunal or in the civil courts," and even going as far as
be in power, call for the granting of the petition and at the least for referring to the "Supreme Court as an obstacle."
the reinvestigation of the charges against petitioner with "utmost I do not believe 'it is under any circumstance proper for a Supreme
fairness, impartiality and objectivity" as directed in Administrative Court to leave such accusations unchallenged. Most likely, they
Order No. 355 itself. could be mere uncontrollable outburst of a desperate soul which are
Muñoz-Palma, J., concur.1äwphï1.ñët without judicial significance, but since it is as likely that petitioner's
BARREDO, J., concurring: letter would be used as propaganda material not only here but
I concur in the main opinion so very ably penned for the Court by our abroad to discredit the Philippine Government in the eyes of the
distinguished colleague, Mr. Justice Antonio. I am writing this world, I consider it inevitable for the Court to proceed to dispose of
separate opinion not with intent to unnecessarily lend force to the the merits of petitioner's case and thus let all and sundry judge for
cogent and compelling considerations expounded therein but only to themselves on the basis of the Court's expressed considerations
articulate a few thoughts I entertain relative to certain aspects of this rather than on that of petitioner's self-serving opinion, whether or not
case which have additionally impelled me to overrule the contentions our judiciary is what petitioner claims it to be. It is my considered
of petitioner other than his invocation of his right to waive his view that if a party who comes to court has indeed any right to
presence at the proceedings being held against him. withdraw his case therefrom, such withdrawal should not receive the
sanction of the court when the party tells the court that his reason for
withdrawing is because he has no confidence in its impartiality and Marcos has already
capacity to render justice. In such a situation, the only recourse of announced to the world that
the court is to prove by actually deciding the case how just and he had actually removed
impartial it is. martial law since April,
I would like to state here emphatically that petitioner's apprehensions 1974." (Petitioner Aquino's
about the dangers to the independence of the judiciary of the letter, pp. 4-5.)
Philippines at present, particularly the Supreme Court, is nothing In so far as petitioner's "hunger strike" may be understood as an
more than an a priori opinion and is not and cannot be supported by attempt to stampede the Court to render a verdict favorable to his
facts. After all, the Court does not have to necessarily agree with views, I must state categorically that it is subversive and
everyone who feels that certain acts of the Government are illegal or contumacious, specially because it is being admittedly done with
unconstitutional. Surely, a propensity to overrule the other "unmistakable clarity" of mind and purpose. Frankly, I am at a loss
departments of the Government is not the true mark of the as to what kind of procedure would suit him. In the same breadth
independence of the judicial branch. If so far, the Supreme Court that he professes to advocate that every man is entitled to equal
has not yet declared any impugned acts of the President or the protection of the laws, he claims that he should be treated not as an
martial law government unconstitutional, it is not because the Court ordinary accused but "as a political rival", evidently meaning, of the
is subservient to the President in any way, but simply because, in President. How indeed is "a political rival" of the Administrator of
the honest conviction of its members, the proper case for such a martial law supposed to be prosecuted for an offense committed
declaration has not come. That the Court can and will strike down against the laws of the land?
acts of the President in the appropriate instances, there should be Be that as it may, anyone can easily imagine the unmanageable
no doubt whatsoever. The people can rest assured that when the situation and judicial chaos that would result should We create a
proper occasions arise, the justices, individually and collectively, will precedent wherein the Court should yield to the demands of a
not be found wanting in wisdom and courage to act accordingly, person under formal charge of committing an offense, as otherwise
regardless of what might be the views and wishes of the Executive he would resort to a hunger strike. Nonetheless, We were somehow
and/or any other department of the government. disposed to lean backwards and rule interlocutorily as early as We
At this point, it may not be amiss to say a few words respecting could on the issue as to whether or not the respondent Military
petitioner's decision to resort to what is being referred to as a Commission was right in compelling petitioner to attend the
"hunger strike." perpetuation proceedings and thereby place his initial cause for the
According to his letter aforementioned, the initial reason for such a "hunger strike" in its true perspective. But Our efforts to this end
step was, to quote his own words, to "protest against a procedure were met by petitioner's Churchill like reaction that what We could
intended to humiliate and dehumanize me, considering that all they possibly give was "too late and too little", manifested by his once
wanted was for me to be identified as a common criminal and not as more disauthorizing his lawyers from henceforth speaking for him
a political rival. I also said that my hunger strike was not only for and finally seeking the withdrawal of this case from our hands. Is the
myself but on behalf of many other victims of today's oppression and Court supposed to extend to a "political rival" of the President more
injustices." Later, however, the causes thereof were broadened by than what the existing laws provide for others?
him thus: têñ.£îhqw⣠As a Filipino myself, I am ready to concede that petitioner is being
Despite my hunger strike, or probably because actuated by what he honestly believes to be his duty to our country
of it, I see with unmistakable clarity that my legal and people. His abiding loyalty to his cause and his firm conviction to
battles in the Supreme Court are now over. Mr. attain his objectives are to me admirable. But I reject any suggestion
Marcos is the single genius, composing and that for the Court to uphold the legality and constitutionality of the
directing all the proceedings, whether in the existing government is inimical to the national interests and ideals. I
military tribunal or in the civil courts. This is the can see that the concept of martial law presently being evolved here
evil of one-man rule at its very worst. He has as well as some features of its implementation do not conform with
destroyed the independence of the civil courts, certain views of the American Supreme Court and some alien writers
abolished the legislature, controlled the mass on the subject, but is it imperative that the Supreme Court of the
media, curtailed our cherished liberties with the Philippines should adhere to the doctrines laid down by alien
backing of the military, which, ironically, exists authorities in order to be right?
'for the good of the people.' Incidentally, it is becoming increasingly evident that some religious
Without the Supreme Court as an obstacle, I quarters as such would want their influence felt in the resolution of
have decided to go on my hunger strike and the legal issues before Us. One does not have to dig deep into the
place my fate and my life squarely in the hands pages of history to learn that nations and peoples have also suffered
of my accuser, prosecutor, and judge Mr. where and when there was no separation of the church and state as
Marcos. Thus the plain, naked truth will be when they were under despots and autocrats. In any event, while
made clear to our people and to the rest of the one can commiserate and sympathize with petitioner for the
world. personal sufferings he has elected to undergo, I cannot convince
As I said, my hunger strike is not for myself myself that they are in anyway comparable with the agonies of Christ
alone, but for the many thousands of Filipinos at Calvary, as seemingly, I am informed, has been somehow or
who are helpless victims of the oppression and seemingly suggested at a religious gathering sometime ago of those
injustices of the so-called New Society. The who share convictions with petitioner. Withal, I am afraid that even
meaning and thrust of my struggle and sacrifice the mere attempt to draw such a comparison could be a sin of
transcend the limited question of absence or sacrilege and of having strange gods before our only Holy
presence in the proceedings before the military Redeemer.
tribunal. I have therefore solemnly vowed to 2. Military tribunals and trials for persons who have committed
continue my hunger strike as a symbol of our offenses against the objectives of martial law is a natural and logical
people's firm protest against:têñ.£îhqw⣠concomitant of martial rule.
1. The trial of civilians before military tribunals, particularly for The legalistic and scholarly discussion in the main opinion of the
offenses allegedly committed by them before martial law; issue of jurisdiction of herein respondent Military Commission No. 2
2. the lack of judicial independence. Trials by civil courts would still needs no amplification. I only wish to punctualize a broader
be a travesty of justice, especially in cases where those in power, foundation for my concurrence. I have always maintained it is
their relatives or associates, are interested — for as long as our elementary, historically and legally, that in any regime of martial law,
judges remain "casuals". They should be given permanent tenure, offenders against its objectives are and ought to be tried by military
for their own good and for the benefit of our people who have a vital tribunals in accordance with the procedure prescribed for them. To
stake in a sound administration of justice. feel apprehensive than that unless the Court upholds petitioner's
contention that as a civilian he cannot be tried by respondent
3. the absence of a genuine free press. Since martial law was commission for the crimes allegedly committed prior to the
proclaimed, I have been unfairly condemned and vilified by the proclamation of martial law, thousands of Filipinos run the risk of
controlled newspapers and tv-radio stations. I know there are many being similarly hailed before military courts and deprived of their
people who have been similarly pilloried. But a genuine free press is constitutional rights to due process, is to ignore that throughout the
even more important for those who are in power. It may free them life of all nations, when rebellions and revolutions were mounted, no
from their arrogance, their prejudices, and their pretensions, and distinction has ever been drawn, among those igniting the uprising
help them see the injustices they have committed against their own which naturally was done before any declaration of martial law, as to
people. whether they are civilians or military men, for purposes of trying
4. the further continuation of them before the military courts of the legitimate or victorious
martial law and its evils and government, at least, whenever prosecution has to be undertaken
repressions. After all, Mr. before the hostilities were over. And in this connection, it may be
said of more recent military tribunals trying rebels that more would precisely protect and defend them against injustice and
safeguards are being adopted in order that the elementary oppression.
requirements of due process may be surely observed by them. Truth to tell, the thought or suspicion of prejudgment in military
Moreover, it would be a misconception of the true import of this justice during martial law is inevitable, for the obvious reason that
decision to suppose that it may be taken advantage of by any future the concentration of powers in such a situation carries with it
government, for, as I have explained in my concurring opinion in the inherently the spectacle of the army being the accuser and judge at
Habeas Corpus cases,1 any self-restraint the Court has opted to the same time. When it is considered, however, that military courts
exercise in its decisions so far rendered, from asserting its judicial are generally collegiate, with each member thereof being obliged to
authority to interfere with the actuations of the Executive, vote secretly not only on the issue of the guilt of the accused as to
considering it has not found any evidence of manifest abuse of each charge and specification but separately, also on the penalty to
discretion or gross arbitrariness in them, does not mean the be imposed, and that in important cases, particularly capital ones
Supreme Court has lost the power to act accordingly in appropriate like some of those of petitioner, their decisions are automatically
cases that may come later. And there being no question that subject to review and recommendation by a number of levels of
Proclamation 1081 which established martial law in the Philippines is authority, such as the Chief of Staff, the Board of Review, the
valid,2 it necessarily follows that respondent military tribunal which Secretary of National Defense etc., each with their corresponding
has been created under it are vested with jurisdiction to try and staff judge advocates, before reaching the President for the final
decide petitioner's cases, it appearing that the charges and verdict, one cannot escape the conviction that more exacting
specifications against him are related to the causes that gave safeguards against any possibility of partiality and prejudgment may
occasion to the Proclamation, no matter that the offenses charged not be found in the civil courts. It is entirely wrong, unjust and
therein were committed long before the issuance of said unwarranted to think of all army men as having only one mind. After
proclamation. Otherwise, the alternative would be to await the all, they are also Filipinos like petitioner and counsel, and they
termination of martial law when all passions shall have subsided and cannot have less interest in and devotion to the sacred ideals for
the courts could calmly and without regard to the personal feelings of which our common country and people exist.
the judge as to the merits of the rebellion make an impartial decision, Moreover, in the case at bar, the statements attributed to the
but that would mean the continued detention of the petitioner in the President and which petitioner quotes and maintains are reflective of
meantime. the President's supposed pre-judgment of his cases, viewed
It is insisted, however, that since the civil courts are open, it is objectively, would indicate at most only an offhand evaluation of the
derogative of their constitutional authority to sanction petitioner's trial evidence then on hand, without regard to the other evidence now in
in a military commission. Such contention ignores the fundamental possession of the prosecution, and without counting those which
mission of military courts during martial law. In any martial law petitioner will present on his behalf, and does not necessarily
situation wherein civil courts are continued, their co-existence with amount to a pronouncement of guilt. As such, therefore, they do not
military tribunals ought not to create any conflict of jurisdiction. The sufficiently prove what the judgment of the President would be after
trial and punishment of offenders against the established order the whole evidence of petitioner's cases shall have been examined
should as a matter of necessity be left in the hands of the military and evaluated by him. In other words, from the strictly legal point of
whereas the civil courts are supposed to aid in the preservation of view of petitioner's pose about denial of due process to him by
normal society among the non-offenders by continuing the exercise reason of prejudgment lacks persuasiveness.
of their jurisdiction over all civil matters which have no direct relation Legal standards aside, however, it is immensely reassuring that the
to the imperatives of the Proclamation. And as very well explained in President has announced that as soon as the present perpetuation
the main opinion, the constitutional requirements of due process are proceedings are terminated, he will consider the advisability of
being complied with even in the military tribunals. transferring the cases in question to the civil courts. Should that be
In legal contemplation, there is here no diminution much less a done, and I have no reason for believing that it will not be so done, it
derogation of the judicial power vested by the Constitution upon the will not only be that petitioner will be relieved of a great degree of
Supreme Court and other inferior courts established by law. As I mental torture, but, as importantly if not more so, the President shall
made clear in my separate opinion in the Habeas Corpus have given the nation eloquent proof not so much of his nobility as of
cases,3 once the Supreme Court refrains, during a national his determination not to allow the decision in the cases of petitioner
emergency, by virtue of the discretion implicitly granted to it by the to be in any manner tainted by the slightest suspicion of any
people in the Constitution, from invalidating the proclamation of personal feeling or opinion on his part. And I have no fears at all that
martial law, because it is convinced that there has been no patent others who are also similarly charged before military commissions
arbitrariness in its issuance, which We have actually done already in will demand the same treatment, thereby subverting the whole
said cases, there can be no legal objection to the existence of system of crime prosecution under martial law I have earlier
military courts for the purposes I have just indicated. And it must be adverted to, for in the particular case of petitioner, there is the
so, for it is entirely rational that military tribunals are peculiarly fit, in singular circumstances that the President has made statements
view of the more summary and expeditious procedure designed for which have some relevance to his cases, which it does not appear
their functioning, to temporarily administer justice in the prompt and has been done in those of the others. Besides, under General Order
unencumbersome manner required by the exigencies of the No. 49, the President has already transferred the mass of the cases
situation. In other words, the theater-of-war test is not truly against civilians to the civil courts. Briefly then, while I hold that there
determinative of the constitutionality of military trials during martial is nothing constitutionally wrong with having petitioner tried by a
law, even when martial law is proclaimed for the express purposes military tribunal, it is my conviction that it is preferable from all other
of simultaneously reforming society with the suppression of the points of view that his cases be transferred to the civil courts, and
rebellion by causes therefore may not recur. Whether or not the not because in fact he will not get justice from the former, but
authority of the civil courts may give way to military jurisdiction because he will have more peace of mind in the latter and the
should rather depend on the nature of the offenses committed and people will be spared every doubt as to whether or not the slightest
its relation to the elimination of the unnecessary hindrances or element of partiality or bias has crept into one of the most important
obstacles to the complete restoration of order and the attainment of trials in the current history of our country. But, of course, it is not
the social and political objectives of the Proclamation. within the ambit of the authority of even the Court itself, much less
3. Petitioner's allegation of pre-judgment, albeit lacking in sufficient this writer, to direct the President's exercise of the powers vested in
juridical persuasiveness is nevertheless worthy of serious him by the Constitution; so, all that I can do is to voice the faith and
consideration by the authorities who can provide relief. hope that the President may not encounter any further obstacle to
That I am somehow impressed by petitioner's contention of his actually ordering the transfer of petitioner's cases to the civil
supposed pre-judgment of his case by the President who has courts in accordance with his afformentioned public announcement,
ordered the creation of the military courts and by whom their the sooner the better.
decisions are to be reviewed for final approval is no secret. At the 4. Petitioner has the right to waive his presence at the perpetuation
open hearing of this case before this Court on April 14 last, I had proceedings before the respondent Commission.
occasion to ask the Solicitor General what possible impediments are As I stated earlier, what really seems to have initially provoked
there to the transfer of petitioner's case to the civil courts, which can petitioner's decision to go on some kind of a hunger-strike was the
rightly be done under the law. But that was, of course, far from respondent Commission's turnabout in regard to the issue of
indicating that I believe that indeed there could be such whether or not he can waive his presence during the perpetuation
prejudgment. I have faith that in the discharge of his solemn proceedings before it. After ruling at first that he had such right,
constitutionally prescribed oath to "do justice to every man", subsequently, upon motion for reconsideration of the prosecution,
President Marcos would not be capable of wantonly discarding the the Commission reversed itself and ruled that his presence is
inherent responsibilities of his high office, knowing as he does that indispensable and can thus be secured compulsorily. But if such
he would not be where he is were it not for the trust and confidence action of the respondent commission is the cause of petitioner's
reposed in him by the people when they elected him as the man who hunger strike, as he had stated at the beginning, he may now desist
by the exercise of the immense powers given him by the Constitution from continuing with his rather perilous posture. All the members of
the Court participating in this case are agreed that the ruling bar, and, in any event, I do not see the justice and fairness of those
in People vs. Avanceña4 relied upon by the prosecution should be at precedents. As far as I am concerned, the prosecution must prove
least modified, if not completely overturned. Six of us, namely, its ease by its own effort and within own resources and should not
Justices Fernando, Teehankee, Antonio, Muñoz Palma, Aquino and be permitted to depend on the accused for anything that will help it
this writer are of the view that petitioner, although under detention secure his conviction. I know that the Constitution has placed
and charged with a capital offense, has the right to absent himself at emphasis on the duties and obligations of persons in the Philippines
any stage of the trial, while the other five Justices, namely, Justices equally with the Bill of Rights, but nowhere in those pertinent
Castro, Makasiar, Esguerra, Concepcion Jr. and Martin, believe also provisions in Article V do I discern any duty or obligation on the part
that that right exists subject however to the qualification that it of an accused to help the prosecution in having himself identified by
cannot be invoked whenever his presence is needed for the witnesses of the state.
identification purposes. Accordingly, it is entirely up to the petitioner After having been in continuous practice at the bar for more than
whether or not to attend the perpetuation proceedings now going on three decades before joining the Court, I should know that the
except when he is to be identified by the witnesses on the stand and almost invariable procedure practiced in the identification of accused
only for just the time needed for that exclusive purpose. persons at the trial is in a sense impractical, if not farcical. As the
Speaking for myself, I find eminent merit in the contention of cases are called from the calendar, the accused are made to stand
petitioner that even for identification purposes he cannot be made to and evidence their presence within the view of everybody in the
be present at the trial against his will. Since under the Constitution, courtroom including the witnesses of the prosecution. Rare is the
trial of criminal cases in the absence of the accused is allowed, occasion when necessary precautions are taken at the initiative of
when after the arraignment and in spite of due notice he fails to meticulous defense lawyers to prevent the witnesses from seeing
appear without justification, pursuant to Section 19 of the Bill of the accused as they answer the calling of the calendar. My point is
Rights or Article IV, I cannot see why an accused who does not want that any quibbling about the proper identification of the accused by
to undergo the experience of being repeatedly pointed to and of compelling his presence at the trial may not be worth the irreparable
being the target of the curious eyes of the public, cannot elect to injury to human dignity that can be caused by bodily and forcibly
leave the defense of his case and of his rights to his counsel in his taking the accused from his place of confinement to the place of trial
absence or even put himself completely at the mercy of the court, in the event he insists on his pose that he is agreeable anyway that
secure in the thought that it is anyway the inescapable duty of the the presumption on identities I have referred to be applied to his
judge not to allow anything illegal or inhuman to be done to him. case.
I can understand why an accused has to be present at the In the precedents relied on by the prosecution, it is held that
arraignment and at the reading of the sentence. In the former, it has inasmuch as the accused is under detention, his person is subject to
to be known to the court that he is indeed the person charged and the disposition of the court before whom he is charged. I disagree.
that he personally understands the accusation against him. More My position on this point is that his detention is only for the purpose
importantly, the plea must be entered by him personally to avoid any of securing the execution of the judgment in the eventuality of
misconstruction or misrepresentation, innocent or otherwise. In the conviction and for no other purpose derogative of his freedom to
latter, it is essential that the accused himself should be aware from waive his personal rights related to the procedure of his trial. His
personal knowledge what is the verdict of the court, and if it be constitutional rights "to be heard by himself or counsel, to be
conviction, what is the penalty to be served by him. These are informed of the nature and cause of the accusation against him, to
matters too personal to permit delegation. At the same time, his have a speedy and public trial, to meet the witnesses face to face
presence makes it simpler in the public interest for the authorities to and to have compulsory process to secure the attendance of
enforce execution of any adverse judgment. But I cannot see why an witnesses and the production of witnesses on his behalf" (Section
accused should be compelled to be present at the trial when he 19, Art. IV) including those not to be "compelled to be a witness
prefers perhaps the solitude of his cell to pray either for forgiveness, against himself ... to remain silent" and not to be subjected to "force,
if he knows he is guilty, or, if he is innocent, for God to illumine the violence, threat, intimidation, or any other means which vitiates (his)
court so there would be unerring justice in his case. free will" (Sec. 20, id.) and even that of not being "twice put in
My understanding is that the problem of identification of an accused jeopardy of punishment for the same offense" (Sec. 22, id.) may be
may be adequately solved without violating the justified wishes of the waived by him provided the waiver is made properly. As I see it, the
accused to be left alone. To start with, if he is referred to by the right to be present at the trial is more or less the composite of these
witnesses of the prosecution by name, the court may presume that rights I have enumerated. Since all of them separately are waivable,
the accused who has acknowledged his true name at the why may not the waiver of all of them be done wholesale, so to
arraignment is the one indicated. This Court ruled unequivocally speak, as long as the waiver is clearly and voluntarily manifested to
more than sixty-five years ago in U.S. vs. Adolfo, 12 Phil. 296, and the court. Above all, I consider the right of an accused to human
reiterated it in People vs. Santos, 53 Phil. 863, twenty years later, dignity to be more precious than all his other rights, hence I cannot
and there has been no contrary opinion since then, that the see the point in compelling the accused to sacrifice his human
rebuttable presumption of identity of person is applicable not only in dignity for the sake of enabling the prosecution to identify him in
civil cases but also to the identification of the accused in criminal person when the same end can as well be legally attained without
cases. To my mind, there is absolutely no need that the accused be exacting from him such sacrifice.
personally identified by the court while the inculpating witness is Sustaining as I do sustain the right of petitioner to absent himself at
testifying, where the accused voluntarily waives his presence and the trial proper, it is unnecessary for me to discuss whether or not
even suggests to the court, as petitioner has done, to avail of the the perpetuation proceedings constitute part of the trial. I must make
legally presumption just mentioned. (See Sec. 5 (w), Rule 131.) it clear, however, than even if We were to hold that they are part of
Of course, it is to be underscored that the presumption is juris the trial proper, I insist that if the witnesses who have testified or will
tantum. Thus, the waiver of the presence of the accused at the trial testify at the perpetuation proceedings should be available when the
does not preclude him from presenting evidence to overcome the trial actually takes place it is the right of the accused to have them
presumption. I admit that the ensuing situation may pose problems recalled and to be examined further and even anew in the sound
for the prosecution, but where in the democratic world is the accused discretion of the trial court. Presidential Decree 328, paragraph 2,
supposed to lend his hand in order to make it that much easier for amending subparagraph 4 b (7) of Presidential Decree No. 39 is to
the court to convict him. Our fundamental law, no less than the be so construed, in the interest of fairness and justice.
rudimentary rules of fair play, expressly enjoins that the accused As I close this concurrence, two thoughts continuously recurring in
may not be compelled to incriminate himself. I take such injunction to my mind during its preparation keep urging articulation. The first is
be consistent with man's inalienable right to be treated with the that to commit suicide is prohibited by the laws of God and man. No
dignity of a human being and it therefore extends to any and all one has the right to take his life for any reason. Withal, leadership in
forms of making the accused aid the prosecution in proving its case. any field of human endeavor creates a responsibility that knows no
It is claimed that the state has the unquestionable right and duty to surcease for any kind of convenience. Perseverance of purpose to
see to it that the accused is not convicted unless he is duly be of real significance and worth requires one's survival. The future
identified. To the wisdom and nobility of such proposition, I must say is inscrutable the hand of fate guides only those who bide their time
amen. But I maintain that it is an incongruity in principle to predicate and do not despair before the designed moment comes. Thus, it
on such a just premise the conclusion that the state may compel the could yet be a crime also against the interests of our country and
accused to assist it by exhibiting himself for purposes of people to indulge in self-destruction when one knows that he has
identification. I am aware of precedents to the effect that the talents and attributes that can be offered for the attainment of the
compulsion against self-incrimination prohibited by the Bill of Rights national destiny.
does not contemplate acts required of the accused which do not The second concerns the Supreme Court whose independence of
involve the employment of his intellect. In other words, he cannot be conviction it is the bounden duty of every Filipino to keep unsullied.
made to produce evidence against himself, but he can be compelled The unkindest thing of all is for those to whom you concede the
to perform mechanical acts conducive to that end. But I do not see loftiest of motives to impugn recklessly your own. The unceasing
any analogy between the facts in those precedents and the case at quest for the achievement of the national goal naturally divides men
in all democracies into groups each composed of those sharing
common views and feelings as to how to make the country succeed
earlier in realizing its ideals. Such disparity, however, cannot
produce disunity, as long as everyone involved because of official
duty or choice trusts the good faith of the other.
For the members of the Court to happen to coincide in legal views
with the Executive is not servility. Neither should it be considered
evidence of any measure of orchestration or common planning. As a
matter of fact, there has never been any such thing. The best proof
is that, as I have emphasized at the outset, this is the first martial law
case in which the required majority for doctrinal purposes has been
attained. Where then is the alleged orchestration? And how could
the charge have basis in the face of the undeniable happenstance
that no martial law or constitutional decision has yet come out from
the Court without vigorous and extensive dissents of notable
consistency. Indeed, occasions there have been when one or two
more votes became imperative for a more effective and conclusive
ruling, and no one can say that anybody concerned received
dictation as to what to do. Of my own knowledge, I bear witness that
not even a finger has been lifted in any manner against any of the
dissenters. As of now, the Court has not found enough cause to hold
any of the President's actuations submitted for Our scrutiny to have
overstepped constitutional bounds. It is evident that due care is
being taken to avoid fault in this respect. I can imagine no reason
why and no occasion when such effort will ever be relaxed at all.
More so in the earnest vigil by the Supreme Court.
MUNOZ PALMA, J., dissenting:
I concur with the dissenting Opinion of Justice Claudio Teehankee
with additional explanation for my vote.
1. On the Motion to withdraw Petition —
From a letter of Benigno Aquino, Jr. of April 14, 1975, addressed to
his wife, children, relatives, and friends submitted to the Court and
now part of the record of the case (see page 7 of Justice
Teehankee's dissenting opinion), I am convinced that petitioner no
longer desires to seek redress or relief from this Court. He would
rather make of his plight (his continued detention from September
23, 1972, in a military camp and trial before a Military Commission
for crimes allegedly committed before the proclamation of Martial
Law) a matter of conscience between himself and the President of
the Republic, and offer his life for what he believes is a rightful
cause. Who am I to stand on the way of this man who offers himself
in supreme sacrifice, and is ready to consign his fate to his Maker,
for his country and his people?
2. On the merits of the Case —
I vote to grant the Petition for Prohibition because, brushing aside
the personalities of the parties involved, that is, the fact that Benigno
Aquino, Jr. was a member of the Senate and a known leader of the
Opposition at the time martial law was proclaimed and that President
Ferdinand E. Marcos believes in the Rule of Law not withstanding
martial rule, I am called upon at this moment to lay down a principle
of law which will decide the fate, not only of the present generation
but also that of Filipinos still to be born. For the main question now at
stake — whether or not military tribunals can try and render a verdict
on civilians for offenses allegedly committed before or even during
martial rule, notwithstanding the fact that civil authority is supreme
and civil courts are existing and functioning is supreme and civil
courts are existing and functioning under the Constitution — raises
before my eyes the gruesome spectre of one, a hundred, a thousand
civilian Filipinos being dragged by the mighty arm of the military
before its own created and manned tribunals, commissions, etc., for
offenses, real or imaginary, and tried and sentenced without the
constitutional safeguards attendant to a trial by civil courts (see
pages 11-13 of Justice Teehankee's Opinion for these safeguards).
True it is, that the picture I conjure before me may not take place at
all under the present dispensation because President Ferdinand E.
Marcos, as Commander-in-Chief of the Armed Forces, is committed
to uphold the Constitution and, as quoted by Justice Teehankee,
believes in the protection of the Bill of Rights (see page 32 of Justice
Teehankee's Opinion). But what about tomorrow, and the day after
tomorrow, when we shall all be gone and the political atmosphere
different? Legal precepts which are to protect the basic fundamental
rights and liberties of an individual must be laid down not only for the
present but for all times and for all conditions. The Bill of Rights must
remain firm, indestructible, and unyielding to all forms of
pressure, for like Mount Sinai of Moses it can be the only refuge of a
people in any crucible they may suffer in the course of their destiny.
 MAYOR ANTONIO J. VILLEGAS, petitioner,
BENIGNO S. AQUINO, JR. vs. MILITARY COMMISSION vs.
HIU CHIONG TSAI PAO HO and JUDGE FRANCISCO
Posted on April 2, 2013 by winnieclaire ARCA, respondents.
S Angel C. Cruz, Gregorio A. Ejercito, Felix C. Chaves & Jose Laureta
tandard for petitioner.
G.R. No. L-37364 ; May 9, 1975 Sotero H. Laurel for respondents.
Facts: In September 1972, after the declaration of FERNANDEZ, J.:
Martial Law, Ninoy was arrested and was placed under This is a petition for certiorari to review tile decision dated
September 17, 1968 of respondent Judge Francisco Arca of the
custody. He was brought Fort Bonifacio. He filed for
Court of First Instance of Manila, Branch I, in Civil Case No. 72797,
the issuance of the Writ of Habeas Corpus which was the dispositive portion of winch reads.
denied by the SC. Aquino then questioned the validity Wherefore, judgment is hereby rendered in favor of the petitioner
of such denial and the declaration of martial law; at the and against the respondents, declaring Ordinance No. 6 37 of the
same time he questioned the authority of the military City of Manila null and void. The preliminary injunction is made
court [No. 2] created [pursuant to GO 2-A] to try him permanent. No pronouncement as to cost.
and his other companions. He was being charged for SO ORDERED.
Manila, Philippines, September 17, 1968.
illegal possession of firearms, ammunition and
:
explosives. He was also being charged for violation of AN ORDINANCE MAKING IT UNLAWFUL FOR ANY PERSON NOT
the Anti-Subversion Act and for murder. All were filed A CITIZEN OF THE PHILIPPINES TO BE EMPLOYED IN ANY
before the military court. Aquino argued that the PLACE OF EMPLOYMENT OR TO BE ENGAGED IN ANY KIND
military court has no jurisdiction or civilian courts are OF TRADE, BUSINESS OR OCCUPATION WITHIN THE CITY OF
still operational and that being a civilian, his trial by a MANILA WITHOUT FIRST SECURING AN EMPLOYMENT PERMIT
military commission deprives him of his right to due FROM THE MAYOR OF MANILA; AND FOR OTHER PURPOSES. 3
Section 1 of said Ordinance No. 6537 4 prohibits aliens from being
process. employed or to engage or participate in any position or occupation or
Issue: Whether or not Aquino was afforded due process business enumerated therein, whether permanent, temporary or
in a military court. casual, without first securing an employment permit from the Mayor
Held: YES. According to Schwartz, “The immunity of of Manila and paying the permit fee of P50.00 except persons
civilians from military jurisdiction must, however, give employed in the diplomatic or consular missions of foreign countries,
way in areas governed by martial law. When it is or in the technical assistance programs of both the Philippine
Government and any foreign government, and those working in their
absolutely imperative for public safety, legal processes
respective households, and members of religious orders or
can be superseded and military tribunals authorized to congregations, sect or denomination, who are not paid monetarily or
exercise the jurisdiction normally vested in court.” in kind.
Neither are We impressed with petitioner’s argument Violations of this ordinance is punishable by an imprisonment of not
that only thru a judicial proceeding before the regular less than three (3) months to six (6) months or fine of not less than
courts can his right to due process be preserved. The P100.00 but not more than P200.00 or both such fine and
guarantee of due process is not a guarantee of any imprisonment, upon conviction. 5
On May 4, 1968, private respondent Hiu Chiong Tsai Pao Ho who
particular form of tribunal in criminal cases. A military
was employed in Manila, filed a petition with the Court of First
tribunal of competent jurisdiction, accusation in due Instance of Manila, Branch I, denominated as Civil Case No. 72797,
form, notice and opportunity to defend and trial before praying for the issuance of the writ of preliminary injunction and
an impartial tribunal, adequately meet the due process restraining order to stop the enforcement of Ordinance No. 6537 as
requirement. Due process of law does not necessarily well as for a judgment declaring said Ordinance No. 6537 null and
means a judicial proceeding in the regular courts. 14 void. 6
In this petition, Hiu Chiong Tsai Pao Ho assigned the following as his
The guarantee of due process, viewed in its procedural
grounds for wanting the ordinance declared null and void:
aspect, requires no particular form of procedure. It 1) As a revenue measure imposed on aliens
implies due notice to the individual of the proceedings, employed in the City of Manila, Ordinance No.
an opportunity to defend himself and “the problem of 6537 is discriminatory and violative of the rule of
the propriety of the deprivations, under the the uniformity in taxation;
circumstances presented, must be resolved in a 2) As a police power measure, it makes no
manner consistent with essential fairness.” It means distinction between useful and non-useful
occupations, imposing a fixed P50.00
essentially a fair and impartial trial and reasonable
employment permit, which is out of proportion to
opportunity for the preparation of defense. the cost of registration and that it fails to
Here, the procedure before the Military Commission, as prescribe any standard to guide and/or limit the
prescribed in Presidential Decree No. 39, assures action of the Mayor, thus, violating the
observance of the fundamental requisites of procedural fundamental principle on illegal delegation of
due process, due notice, an essentially fair and legislative powers:
3) It is arbitrary, oppressive and unreasonable,
impartial trial and reasonable opportunity for the
being applied only to aliens who are thus,
preparation of the defense Section 11 of the Manual for deprived of their rights to life, liberty and
Courts-Martial specifically provides that the “rules of property and therefore, violates the due process
evidence generally recognized in the trial of criminal and equal protection clauses of the
cases in the courts of the Philippines shall be applied Constitution.7
by courts-martial.” This is applicable to trials in the On May 24, 1968, respondent Judge issued the writ of preliminary
military commission . There is, therefore, no injunction and on September 17, 1968 rendered judgment declaring
Ordinance No. 6537 null and void and making permanent the writ of
justification for petitioner’s contention that such
preliminary injunction. 8
military tribunals are concerned primarily with the Contesting the aforecited decision of respondent Judge, then Mayor
conviction of an accused and that proceedings therein Antonio J. Villegas filed the present petition on March 27, 1969.
involve the complete destruction and abolition of Petitioner assigned the following as errors allegedly committed by
petitioner’s constitutional rights. respondent Judge in the latter's decision of September 17,1968: 9
I
THE RESPONDENT JUDGE COMMITTED A
Republic of the Philippines SERIOUS AND PATENT ERROR OF LAW IN
SUPREME COURT RULING THAT ORDINANCE NO. 6537
VIOLATED THE CARDINAL RULE OF
Manila
UNIFORMITY OF TAXATION.
EN BANC
II
G.R. No. L-29646 November 10, 1978
 RESPONDENT JUDGE LIKEWISE
COMMITTED A GRAVE AND PATENT ERROR (SGD.) FR
OF LAW IN RULING THAT ORDINANCE NO. Judge1The
6537 VIOLATED THE PRINCIPLE AGAINST Municipal B
UNDUE DESIGNATION OF LEGISLATIVE petitioner M
POWER.
III
RESPONDENT JUDGE FURTHER Republic of the Philippines
COMMITTED A SERIOUS AND PATENT SUPREME COURT
ERROR OF LAW IN RULING THAT Baguio City
ORDINANCE NO. 6537 VIOLATED THE DUE EN BANC
PROCESS AND EQUAL PROTECTION G.R. No. 204819 April 8, 2014
CLAUSES OF THE CONSTITUTION. JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for
Petitioner Mayor Villegas argues that Ordinance No. 6537 cannot be themselves and in behalf of their minor children, LUCIA
declared null and void on the ground that it violated the rule on CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
uniformity of taxation because the rule on uniformity of taxation MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
applies only to purely tax or revenue measures and that Ordinance vs.
No. 6537 is not a tax or revenue measure but is an exercise of the HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
police power of the state, it being principally a regulatory measure in FLORENCIO B. ABAD, Secretary, Department of Budget and
nature. Management, HON. ENRIQUE T. ONA, Secretary, Department of
The contention that Ordinance No. 6537 is not a purely tax or Health, HON. ARMIN A. LUISTRO, Secretary, Department of
revenue measure because its principal purpose is regulatory in Education, Culture and Sports and HON. MANUELA. ROXAS II,
nature has no merit. While it is true that the first part which requires Secretary, Department of Interior and Local
that the alien shall secure an employment permit from the Mayor Government, Respondents.
involves the exercise of discretion and judgment in the processing x---------------------------------x
and approval or disapproval of applications for employment permits G.R. No. 204934
and therefore is regulatory in character the second part which ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC.
requires the payment of P50.00 as employee's fee is not regulatory [ALFI], represented by its President, Maria Concepcion S.
but a revenue measure. There is no logic or justification in exacting Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose
P50.00 from aliens who have been cleared for employment. It is S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez &
obvious that the purpose of the ordinance is to raise money under Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L. Mante,
the guise of regulation. Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio
The P50.00 fee is unreasonable not only because it is excessive but Racho & Traquilina Racho, F emand Antonio A. Tansingco &
because it fails to consider valid substantial differences in situation Carol Anne C. Tansingco for themselves and on behalf of their
among individual aliens who are required to pay it. Although the minor children, Therese Antonette C. Tansingco, Lorenzo Jose
equal protection clause of the Constitution does not forbid C. Tansingco, Miguel F emando C. Tangsingco, Carlo
classification, it is imperative that the classification should be based Josemaria C. Tansingco & Juan Paolo C. Tansingco, Spouses
on real and substantial differences having a reasonable relation to Mariano V. Araneta & Eileen Z. Araneta for themselves and on
the subject of the particular legislation. The same amount of P50.00 behalf of their minor children, Ramon Carlos Z. Araneta & Maya
is being collected from every employed alien whether he is casual or Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C.
permanent, part time or full time or whether he is a lowly employee Castor for themselves and on behalf of their minor children,
or a highly paid executive Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C.
Ordinance No. 6537 does not lay down any criterion or standard to Castor & Raphael C. Castor, Spouses Alexander R. Racho &
guide the Mayor in the exercise of his discretion. It has been held Zara Z. Racho for themselves and on behalf of their minor
that where an ordinance of a municipality fails to state any policy or children Margarita Racho, Mikaela Racho, Martin Racho, Mari
to set up any standard to guide or limit the mayor's action, expresses Racho & Manolo Racho, Spouses Alfred R. Racho & Francine V.
no purpose to be attained by requiring a permit, enumerates no Racho for themselves and on behalf of their minor children
conditions for its grant or refusal, and entirely lacks standard, thus Michael Racho, Mariana Racho, Rafael Racho, Maxi Racho,
conferring upon the Mayor arbitrary and unrestricted power to grant Chessie Racho & Laura Racho, Spouses David R. Racho &
or deny the issuance of building permits, such ordinance is invalid, Armilyn A. Racho for themselves and on behalf of their minor
being an undefined and unlimited delegation of power to allow or child Gabriel Racho, Mindy M. Juatas and on behalf of her
prevent an activity per se lawful. 10 minor children Elijah Gerald Juatas and Elian Gabriel Juatas,
In Chinese Flour Importers Association vs. Price Stabilization Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Board, 11 where a law granted a government agency power to Katrina R. Laws, Petitioners,
determine the allocation of wheat flour among importers, the vs.
Supreme Court ruled against the interpretation of uncontrolled power HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
as it vested in the administrative officer an arbitrary discretion to be ENRIQUE T. ONA, Secretary, Department of Health, HON.
exercised without a policy, rule, or standard from which it can be ARMIN A. LUISTRO, Secretary, Department of Education,
measured or controlled. Culture and Sports, HON. CORAZON SOLIMAN, Secretary,
It was also held in Primicias vs. Fugoso 12 that the authority and Department of Social Welfare and Development, HON.
discretion to grant and refuse permits of all classes conferred upon MANUELA. ROXAS II, Secretary, Department of Interior and
the Mayor of Manila by the Revised Charter of Manila is not Local Government, HON. FLORENCIO B. ABAD, Secretary,
uncontrolled discretion but legal discretion to be exercised within the Department of Budget and Management, HON. ARSENIO M.
limits of the law. BALISACAN, Socio-Economic Planning Secretary and NEDA
Ordinance No. 6537 is void because it does not contain or suggest Director-General, THE PHILIPPINE COMMISSION ON WOMEN,
any standard or criterion to guide the mayor in the exercise of the represented by its Chairperson, Remedios lgnacio-Rikken, THE
power which has been granted to him by the ordinance. PHILIPPINE HEALTH INSURANCE CORPORATION, represented
The ordinance in question violates the due process of law and equal by its President Eduardo Banzon, THE LEAGUE OF
protection rule of the Constitution. PROVINCES OF THE PHILIPPINES, represented by its President
Requiring a person before he can be employed to get a permit from Alfonso Umali, THE LEAGUE OF CITIES OF THE PHILIPPINES,
the City Mayor of Manila who may withhold or refuse it at will is represented by its President Oscar Rodriguez, and THE
tantamount to denying him the basic right of the people in the LEAGUE OF MUNICIPALITIES OF THE PHILIPPINES,
Philippines to engage in a means of livelihood. While it is true that represented by its President Donato Marcos, Respondents.
the Philippines as a State is not obliged to admit aliens within its x---------------------------------x
territory, once an alien is admitted, he cannot be deprived of life G.R. No. 204957
without due process of law. This guarantee includes the means of TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
livelihood. The shelter of protection under the due process and equal VALERIANO S. AVILA, Petitioners,
protection clause is given to all persons, both aliens and citizens. 13 vs.
The trial court did not commit the errors assigned. HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
WHEREFORE, the decision appealed from is hereby affirmed, FLORENCIO B. ABAD, Secretary, Department of Budget and
without pronouncement as to costs. Management; HON. ENRIQUE T. ONA, Secretary, Department of
SO ORDERED. Education; and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988 PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Loma Melegrito, as Executive Director, and in her personal
Nestor B. Lumicao, M.D., as President and in his personal capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
capacity, ROSEVALE FOUNDATION INC., represented by Dr. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES,
Rodrigo M. Alenton, M.D., as member of the school board and RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG,
in his personal capacity, ROSEMARIE R. ALENTON, IMELDA G. RUFINO L. POLICARPIO III, Petitioners,
IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, vs.
EARL ANTHONY C. GAMBE and MARLON I. YAP, Petitioners, OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
vs. HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, JR., Executive Secretary, HON. FLORENCIO B. ABAD,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA, Secretary, Department of Budget and Management, HON.
JR., Executive Secretary, HON. FLORENCIO B. ABAD, ENRIQUE T. ONA, Secretary, Department of Health, HON.
Secretary, Department of Budget and Management; HON. ARMIN A. LUISTRO, Secretary, Department of Education and
ENRIQUE T. ONA, Secretary, Department of Health; HON. HON. MANUEL A. ROXAS II, Secretary, Department of Interior
ARMIN A. LUISTRO, Secretary, Department of Education and and Local Government, Respondents.
HON. MANUELA. ROXAS II, Secretary, Department of Interior x---------------------------------x
and Local Government, Respondents. G.R. No. 206355
x---------------------------------x MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
G.R. No. 205003 PEDROSA, ATTY. CITA BORROMEO-GARCIA,
EXPEDITO A. BUGARIN, JR., Petitioner, STELLAACEDERA, ATTY. BERTENI CATALUNA
vs. CAUSING, Petitioners,
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE vs.
PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
GENERAL, Respondents. EDUCATION, Respondents.
x---------------------------------x x---------------------------------x
G.R. No. 205043 G.R. No. 207111
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
APOSTOLATE OF THE PHILIPPINES, Petitioners, VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
vs. ANTONIA EMMA R. ROXAS and LOTA LAT-
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE GUERRERO, Petitioners,
H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG vs.
SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
A. LUISTRO, Respondents. FLORENCIO ABAD, Secretary, Department of Budget and
x---------------------------------x Management, HON. ENRIQUE T. ONA, Secretary, Department of
G.R. No. 205138 Health, HON. ARMIN A. LUISTRO, Secretary, Department of
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein Education, Culture and Sports and HON. MANUEL A. ROXAS II,
represented by its National President, Atty. Ricardo M . Ribo, Secretary, Department of Interior and Local
and in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Government, Respondents.
Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. x---------------------------------x
Yap, Jaime F. Mateo, Rolly Siguan, Dante E. Magdangal, Michael G.R. No. 207172
Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
and Baldomero Falcone, Petitioners, CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
vs. BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. RODRIGO, JR. and DEBORAH MARIE VERONICA N.
FLORENCIO B. ABAD, Secretary, Department of Budget and RODRIGO, Petitioners,
Management, HON. ENRIQUE T. ONA, Secretary, Department of vs.
Health, HON. ARMIN A. LUISTRO, Secretary, Department of HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
Education, HON. MANUELA. ROXAS II, Secretary, Department FLORENCIO B. ABAD, Secretary, Department of Budget and
of Interior and Local Government, HON. CORAZON J. SOLIMAN, Management, HON. ENRIQUE T. ONA, Secretary, Department of
Secretary, Department of Social Welfare and Development, Health, HON. ARMIN A. LUISTRO, Secretary, Department of
HON. ARSENIO BALISACAN, Director-General, National Education, Culture and Sports and HON. MANUELA. ROXAS II,
Economic and Development Authority, HON. SUZETTE H. Secretary, Department of Interior and Local
LAZO, Director-General, Food and Drugs Administration, THE Government, Respondents.
BOARD OF DIRECTORS, Philippine Health Insurance x---------------------------------x
Corporation, and THE BOARD OF COMMISSIONERS, Philippine G.R. No. 207563
Commission on Women, Respondents. ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
x---------------------------------x KASHIM, Petitioners,
G.R. No. 205478 vs.
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO- ENRIQUE T. ONA, Secretary of the Department of Health, and
LUMITAO, M.D., collectively known as Doctors For Life, and HON. ARMIN A. LUISTRO,Secretary of the Department of
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS Budget and Management, Respondents.
ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA DECISION
COSIO, and GABRIEL DY LIACCO collectively known as MENDOZA, J.:
Filipinos For Life, Petitioners, Freedom of religion was accorded preferred status by the framers of
vs. our fundamental law. And this Court has consistently affirmed this
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. preferred status, well aware that it is "designed to protect the
FLORENCIO B. ABAD, Secretary of the Department of Budget broadest possible liberty of conscience, to allow each man to believe
and Management; HON. ENRIQUE T. ONA, Secretary of the as his conscience directs, to profess his beliefs , and to live as he
Department of Health; HON. ARMIN A. LUISTRO, Secretary of believes he ought to live, consistent with the liberty of others and
the Department of Education; and HON. MANUELA. ROXAS II, with the common good."1
Secretary of the Department of Interior and Local To this day, poverty is still a major stumbling block to the nation's
Government, Respondents. emergence as a developed country, leaving our people beleaguered
x---------------------------------x in a state of hunger, illiteracy and unemployment. While
G.R. No. 205491 governmental policies have been geared towards the revitalization of
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. the economy, the bludgeoning dearth in social services remains to
TATAD & ALA F. PAGUIA, for themselves, their Posterity, and be a problem that concerns not only the poor, but every member of
the rest of Filipino posterity, Petitioners, society. The government continues to tread on a trying path to the
vs. realization of its very purpose, that is, the general welfare of the
OFFICE OF THE PRESIDENT of the Republic of the Filipino people and the development of the country as a whole. The
Philippines, Respondent. legislative branch, as the main facet of a representative government,
x---------------------------------x endeavors to enact laws and policies that aim to remedy looming
G.R. No. 205720 societal woes, while the executive is closed set to fully implement
these measures and bring concrete and substantial solutions within (14) Petition for Prohibition32 filed by Almarim Centi Tillah
the reach of Juan dela Cruz. Seemingly distant is the judicial branch, and Abdulhussein M. Kashim in their capacities as citizens
oftentimes regarded as an inert governmental body that merely casts and taxpayers (Tillah); and
its watchful eyes on clashing stakeholders until it is called upon to (15) Petition-In-Intervention,33 filed by Atty. Samson S.
adjudicate. Passive, yet reflexive when called into action, the Alcantara in his capacity as a citizen and a taxpayer
Judiciary then willingly embarks on its solemn duty to interpret (Alcantara); and
legislation vis-a-vis the most vital and enduring principle that holds (16) Petition-In-Intervention,34 filed by Buhay Hayaang
Philippine society together - the supremacy of the Philippine Yumabong (B UHAY) , an accredited political party.
Constitution. A perusal of the foregoing petitions shows that the petitioners are
Nothing has polarized the nation more in recent years than the assailing the constitutionality of RH Law on the following
issues of population growth control, abortion and contraception. As GROUNDS:
in every democratic society, diametrically opposed views on the • The RH Law violates the right to life of the unborn.
subjects and their perceived consequences freely circulate in various According to the petitioners, notwithstanding its declared
media. From television debates2 to sticker campaigns,3 from rallies policy against abortion, the implementation of the RH Law
by socio-political activists to mass gatherings organized by members would authorize the purchase of hormonal contraceptives,
of the clergy4 - the clash between the seemingly antithetical intra-uterine devices and injectables which are abortives,
ideologies of the religious conservatives and progressive liberals has in violation of Section 12, Article II of the Constitution
caused a deep division in every level of the society. Despite calls to which guarantees protection of both the life of the mother
withhold support thereto, however, Republic Act (R.A.) No. 10354, and the life of the unborn from conception.35
otherwise known as the Responsible Parenthood and Reproductive • The RH Law violates the right to health and the right to
Health Act of 2012 (RH Law), was enacted by Congress on protection against hazardous products. The petitioners
December 21, 2012. posit that the RH Law provides universal access to
Shortly after the President placed his imprimatur on the said law, contraceptives which are hazardous to one's health, as it
challengers from various sectors of society came knocking on the causes cancer and other health problems.36
doors of the Court, beckoning it to wield the sword that strikes down • The RH Law violates the right to religious freedom. The
constitutional disobedience. Aware of the profound and lasting petitioners contend that the RH Law violates the
impact that its decision may produce, the Court now faces the iuris constitutional guarantee respecting religion as it
controversy, as presented in fourteen (14) petitions and two (2) authorizes the use of public funds for the procurement of
petitions- in-intervention, to wit: contraceptives. For the petitioners, the use of public funds
(1) Petition for Certiorari and Prohibition,5 filed by spouses for purposes that are believed to be contrary to their
Attys. James M. Imbong and Lovely Ann C. Imbong, in beliefs is included in the constitutional mandate ensuring
their personal capacities as citizens, lawyers and religious freedom.37
taxpayers and on behalf of their minor children; and the It is also contended that the RH Law threatens conscientious
Magnificat Child Leaming Center, Inc., a domestic, objectors of criminal prosecution, imprisonment and other forms of
privately-owned educational institution (Jmbong); punishment, as it compels medical practitioners 1] to refer patients
(2) Petition for Prohibition,6 filed by the Alliance for the who seek advice on reproductive health programs to other doctors;
Family Foundation Philippines, Inc., through its president, and 2] to provide full and correct information on reproductive health
Atty. Maria Concepcion S. Noche7 and several others8 in programs and service, although it is against their religious beliefs
their personal capacities as citizens and on behalf of the and convictions.38
generations unborn (ALFI); In this connection, Section 5 .23 of the Implementing Rules and
(3) Petition for Certiorari,9 filed by the Task Force for Regulations of the RH Law (RH-IRR),39 provides that skilled health
Family and Life Visayas, Inc., and Valeriano S. Avila, in professionals who are public officers such as, but not limited to,
their capacities as citizens and taxpayers (Task Force Provincial, City, or Municipal Health Officers, medical officers,
Family); medical specialists, rural health physicians, hospital staff nurses,
(4) Petition for Certiorari and Prohibition,10 filed by Serve public health nurses, or rural health midwives, who are specifically
Life Cagayan De Oro City, Inc.,11 Rosevale Foundation, charged with the duty to implement these Rules, cannot be
Inc.,12 a domestic, privately-owned educational institution, considered as conscientious objectors.40
and several others,13 in their capacities as citizens (Serve It is also argued that the RH Law providing for the formulation of
Life); mandatory sex education in schools should not be allowed as it is an
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his affront to their religious beliefs.41
capacity as a citizen (Bugarin); While the petit10ners recognize that the guarantee of religious
(6) Petition for Certiorari and Prohibition,15 filed by freedom is not absolute, they argue that the RH Law fails to satisfy
Eduardo Olaguer and the Catholic Xybrspace Apostolate the "clear and present danger test" and the "compelling state interest
of the Philippines,16 in their capacities as a citizens and test" to justify the regulation of the right to free exercise of religion
taxpayers (Olaguer); and the right to free speech.42
(7) Petition for Certiorari and Prohibition,17 filed by the • The RH Law violates the constitutional provision on
Philippine Alliance of Xseminarians Inc.,18 and several involuntary servitude. According to the petitioners, the RH
others19 in their capacities as citizens and taxpayers Law subjects medical practitioners to involuntary servitude
(PAX); because, to be accredited under the PhilHealth program,
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and they are compelled to provide forty-eight (48) hours of pro
several others,21 in their capacities as citizens and bona services for indigent women, under threat of criminal
taxpayers (Echavez); prosecution, imprisonment and other forms of
(9) Petition for Certiorari and Prohibition,22 filed by spouses punishment.43
Francisco and Maria Fenny C. Tatad and Atty. Alan F. The petitioners explain that since a majority of patients are covered
Paguia, in their capacities as citizens, taxpayers and on by PhilHealth, a medical practitioner would effectively be forced to
behalf of those yet unborn. Atty. Alan F. Paguia is also render reproductive health services since the lack of PhilHealth
proceeding in his capacity as a member of the Bar accreditation would mean that the majority of the public would no
(Tatad); longer be able to avail of the practitioners services.44
(10) Petition for Certiorari and Prohibition,23 filed by Pro- • The RH Law violates the right to equal protection of the
Life Philippines Foundation Inc.24 and several others,25 in law. It is claimed that the RH Law discriminates against
their capacities as citizens and taxpayers and on behalf of the poor as it makes them the primary target of the
its associates who are members of the Bar (Pro-Life); government program that promotes contraceptive use.
(11) Petition for Prohibition,26 filed by Millennium Saint The petitioners argue that, rather than promoting
Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo- reproductive health among the poor, the RH Law seeks to
Garcia, Stella Acedera, and Berteni Catalufia Causing, in introduce contraceptives that would effectively reduce the
their capacities as citizens, taxpayers and members of the number of the poor.45
Bar (MSF); • The RH Law is "void-for-vagueness" in violation of the
(12) Petition for Certiorari and Prohibition,28 filed by John due process clause of the Constitution. In imposing the
Walter B. Juat and several others,29 in their capacities as penalty of imprisonment and/or fine for "any violation," it is
citizens (Juat) ; vague because it does not define the type of conduct to be
(13) Petition for Certiorari and Prohibition,30 filed by treated as "violation" of the RH Law.46
Couples for Christ Foundation, Inc. and several others,31 in In this connection, it is claimed that "Section 7 of the RH Law
their capacities as citizens (CFC); violates the right to due process by removing from them (the people)
the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall 4729 entitled "An Act to Regu,late the Sale, Dispensation, and/or
offer."47 It ignores the management prerogative inherent in Distribution of Contraceptive Drugs and Devices." Although
corporations for employers to conduct their affairs in accordance contraceptive drugs and devices were allowed, they could not be
with their own discretion and judgment. sold, dispensed or distributed "unless such sale, dispensation and
• The RH Law violates the right to free speech. To compel distribution is by a duly licensed drug store or pharmaceutical
a person to explain a full range of family planning methods company and with the prescription of a qualified medical
is plainly to curtail his right to expound only his own practitioner."65
preferred way of family planning. The petitioners note that In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
although exemption is granted to institutions owned and provisions relative to "dispensing of abortifacients or anti-
operated by religious groups, they are still forced to refer conceptional substances and devices." Under Section 37 thereof, it
their patients to another healthcare facility willing to was provided that "no drug or chemical product or device capable of
perform the service or procedure.48 provoking abortion or preventing conception as classified by the
• The RH Law intrudes into the zone of privacy of one's Food and Drug Administration shall be delivered or sold to any
family protected by the Constitution. It is contended that person without a proper prescription by a duly licensed physician."
the RH Law providing for mandatory reproductive health On December 11, 1967, the Philippines, adhering to the UN
education intrudes upon their constitutional right to raise Declaration on Population, which recognized that the population
their children in accordance with their beliefs.49 problem should be considered as the principal element for long-term
It is claimed that, by giving absolute authority to the person who will economic development, enacted measures that promoted male
undergo reproductive health procedure, the RH Law forsakes any vasectomy and tubal ligation to mitigate population growth.67 Among
real dialogue between the spouses and impedes the right of spouses these measures included R.A. No. 6365, approved on August 16,
to mutually decide on matters pertaining to the overall well-being of 1971, entitled "An Act Establishing a National Policy on Population,
their family. In the same breath, it is also claimed that the parents of Creating the Commission on Population and for Other Purposes. "
a child who has suffered a miscarriage are deprived of parental The law envisioned that "family planning will be made part of a broad
authority to determine whether their child should use educational program; safe and effective means will be provided to
contraceptives.50 couples desiring to space or limit family size; mortality and morbidity
• The RH Law violates the constitutional principle of non- rates will be further reduced."
delegation of legislative authority. The petitioners question To further strengthen R.A. No. 6365, then President Ferdinand E .
the delegation by Congress to the FDA of the power to Marcos issued Presidential Decree. (P.D.) No. 79,68 dated December
determine whether a product is non-abortifacient and to be 8, 1972, which, among others, made "family planning a part of a
included in the Emergency Drugs List (EDL).51 broad educational program," provided "family planning services as a
• The RH Law violates the one subject/one bill rule part of over-all health care," and made "available all acceptable
provision under Section 26( 1 ), Article VI of the methods of contraception, except abortion, to all Filipino citizens
Constitution.52 desirous of spacing, limiting or preventing pregnancies."
• The RH Law violates Natural Law.53 Through the years, however, the use of contraceptives and family
• The RH Law violates the principle of Autonomy of Local planning methods evolved from being a component of demographic
Government Units (LGUs) and the Autonomous Region of management, to one centered on the promotion of public health,
Muslim Mindanao {ARMM). It is contended that the RH particularly, reproductive health.69 Under that policy, the country
Law, providing for reproductive health measures at the gave priority to one's right to freely choose the method of family
local government level and the ARMM, infringes upon the planning to be adopted, in conformity with its adherence to the
powers devolved to LGUs and the ARMM under the Local commitments made in the International Conference on Population
Government Code and R.A . No. 9054.54 and Development.70 Thus, on August 14, 2009, the country enacted
Various parties also sought and were granted leave to file their R.A. No. 9710 or "The Magna Carta for Women, " which, among
respective comments-in-intervention in defense of the others, mandated the State to provide for comprehensive health
constitutionality of the RH Law. Aside from the Office of the Solicitor services and programs for women, including family planning and sex
General (OSG) which commented on the petitions in behalf of the education.71
respondents,55 Congressman Edcel C. Lagman,56 former officials of The RH Law
the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez- Despite the foregoing legislative measures, the population of the
Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for country kept on galloping at an uncontrollable pace. From a paltry
Reproductive Health (C4RH),58 Ana Theresa "Risa" number of just over 27 million Filipinos in 1960, the population of the
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective country reached over 76 million in the year 2000 and over 92 million
Comments-in-Intervention in conjunction with several others. On in 2010.72 The executive and the legislative, thus, felt that the
June 4, 2013, Senator Pia Juliana S. Cayetano was also granted measures were still not adequate. To rein in the problem, the RH
leave to intervene.61 Law was enacted to provide Filipinos, especially the poor and the
The respondents, aside from traversing the substantive arguments marginalized, access and information to the full range of modem
of the petitioners, pray for the dismissal of the petitions for the family planning methods, and to ensure that its objective to provide
principal reasons that 1] there is no actual case or controversy and, for the peoples' right to reproductive health be achieved. To make it
therefore, the issues are not yet ripe for judicial determination.; 2] more effective, the RH Law made it mandatory for health providers
some petitioners lack standing to question the RH Law; and 3] the to provide information on the full range of modem family planning
petitions are essentially petitions for declaratory relief over which the methods, supplies and services, and for schools to provide
Court has no original jurisdiction. reproductive health education. To put teeth to it, the RH Law
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of criminalizes certain acts of refusals to carry out its mandates.
the assailed legislation took effect. Stated differently, the RH Law is an enhancement measure to fortify
On March 19, 2013, after considering the issues and arguments and make effective the current laws on contraception, women's
raised, the Court issued the Status Quo Ante Order (SQAO), health and population control.
enjoining the effects and implementation of the assailed legislation Prayer of the Petitioners - Maintain the Status Quo
for a period of one hundred and twenty (120) days, or until July 17, The petitioners are one in praying that the entire RH Law be
2013.62 declared unconstitutional. Petitioner ALFI, in particular, argues that
On May 30, 2013, the Court held a preliminary conference with the the government sponsored contraception program, the very essence
counsels of the parties to determine and/or identify the pertinent of the RH Law, violates the right to health of women and the sanctity
issues raised by the parties and the sequence by which these issues of life, which the State is mandated to protect and promote. Thus,
were to be discussed in the oral arguments. On July 9 and 23, 2013, ALFI prays that "the status quo ante - the situation prior to the
and on August 6, 13, and 27, 2013, the cases were heard on oral passage of the RH Law - must be maintained."73 It explains:
argument. On July 16, 2013, the SQAO was ordered extended until x x x. The instant Petition does not question contraception and
further orders of the Court.63 contraceptives per se. As provided under Republic Act No. 5921 and
Thereafter, the Court directed the parties to submit their respective Republic Act No. 4729, the sale and distribution of contraceptives
memoranda within sixty (60) days and, at the same time posed are prohibited unless dispensed by a prescription duly licensed by a
several questions for their clarification on some contentions of the physician. What the Petitioners find deplorable and repugnant under
parties.64 the RH Law is the role that the State and its agencies - the entire
The Status Quo Ante bureaucracy, from the cabinet secretaries down to the barangay
(Population, Contraceptive and Reproductive Health Laws officials in the remotest areas of the country - is made to play in the
Prior to the RH Law implementation of the contraception program to the fullest extent
Long before the incipience of the RH Law, the country has allowed possible using taxpayers' money. The State then will be the funder
the sale, dispensation and distribution of contraceptive drugs and and provider of all forms of family planning methods and the
devices. As far back as June 18, 1966, the country enacted R.A. No. implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family undertaken with grave abuse of discretion.88 Thus, while the Court
planning methods, devices and supplies.74 may not pass upon questions of wisdom, justice or expediency of the
ISSUES RH Law, it may do so where an attendant unconstitutionality or
After a scrutiny of the various arguments and contentions of the grave abuse of discretion results.89 The Court must demonstrate its
parties, the Court has synthesized and refined them to the following unflinching commitment to protect those cherished rights and
principal issues: principles embodied in the Constitution.
I. PROCEDURAL: Whether the Court may exercise its power of In this connection, it bears adding that while the scope of judicial
judicial review over the controversy. power of review may be limited, the Constitution makes no
1] Power of Judicial Review distinction as to the kind of legislation that may be subject to judicial
2] Actual Case or Controversy scrutiny, be it in the form of social legislation or otherwise. The
3] Facial Challenge reason is simple and goes back to the earlier point. The Court may
4] Locus Standi pass upon the constitutionality of acts of the legislative and the
5] Declaratory Relief executive branches, since its duty is not to review their collective
6] One Subject/One Title Rule wisdom but, rather, to make sure that they have acted in
II. SUBSTANTIVE: Whether the RH law is unconstitutional: consonance with their respective authorities and rights as mandated
1] Right to Life of them by the Constitution. If after said review, the Court finds no
2] Right to Health constitutional violations of any sort, then, it has no more authority of
3] Freedom of Religion and the Right to Free Speech proscribing the actions under review.90 This is in line with Article VIII,
4] The Family Section 1 of the Constitution which expressly provides:
5] Freedom of Expression and Academic Freedom Section 1. The judicial power shall be vested in one Supreme Court
6] Due Process and in such lower courts as may be established by law.
7] Equal Protection Judicial power includes the duty of the courts of justice to settle
8] Involuntary Servitude actual controversies involving rights which are legally demandable
9] Delegation of Authority to the FDA and enforceable, and to determine whether or not there has been a
10] Autonomy of Local Govemments/ARMM grave abuse of discretion amounting to lack or excess of jurisdiction
DISCUSSION on the part of any branch or instrumentality of the Government.
Before delving into the constitutionality of the RH Law and its [Emphases supplied]
implementing rules, it behooves the Court to resolve some As far back as Tanada v. Angara,91 the Court has unequivocally
procedural impediments. declared that certiorari, prohibition and mandamus are appropriate
I. PROCEDURAL ISSUE: Whether the Court can exercise its power remedies to raise constitutional issues and to review and/or
of judicial review over the controversy. prohibit/nullify, when proper, acts of legislative and executive
The Power of Judicial Review officials, as there is no other plain, speedy or adequate remedy in
In its attempt to persuade the Court to stay its judicial hand, the OSG the ordinary course of law. This ruling was later on applied in
asserts that it should submit to the legislative and political wisdom of Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Congress and respect the compromises made in the crafting of the Ermita,94 and countless others. In Tanada, the Court wrote:
RH Law, it being "a product of a majoritarian democratic In seeking to nullify an act of the Philippine Senate on the ground
process"75 and "characterized by an inordinate amount of that it contravenes the Constitution, the petition no doubt raises a
transparency."76 The OSG posits that the authority of the Court to justiciable controversy. Where an action of the legislative branch is
review social legislation like the RH Law by certiorari is "weak," since seriously alleged to have infringed the Constitution, it becomes not
the Constitution vests the discretion to implement the constitutional only the right but in fact the duty of the judiciary to settle the dispute.
policies and positive norms with the political departments, in "The question thus posed is judicial rather than political. The duty (to
particular, with Congress.77 It further asserts that in view of the adjudicate) remains to assure that the supremacy of the Constitution
Court's ruling in Southern Hemisphere v. Anti-Terrorism is upheld. " Once a "controversy as to the application or
Council,78 the remedies of certiorari and prohibition utilized by the interpretation of constitutional provision is raised before this Court
petitioners are improper to assail the validity of the acts of the (as in the instant case), it becomes a legal issue which the Court is
legislature.79 bound by constitutional mandate to decide. [Emphasis supplied]
Moreover, the OSG submits that as an "as applied challenge," it In the scholarly estimation of former Supreme Court Justice
cannot prosper considering that the assailed law has yet to be Florentino Feliciano, "judicial review is essential for the maintenance
enforced and applied to the petitioners, and that the government has and enforcement of the separation of powers and the balancing of
yet to distribute reproductive health devices that are abortive. It powers among the three great departments of government through
claims that the RH Law cannot be challenged "on its face" as it is not the definition and maintenance of the boundaries of authority and
a speech-regulating measure.80 control between them. To him, judicial review is the chief, indeed the
In many cases involving the determination of the constitutionality of only, medium of participation - or instrument of intervention - of the
the actions of the Executive and the Legislature, it is often sought judiciary in that balancing operation.95
that the Court temper its exercise of judicial power and accord due Lest it be misunderstood, it bears emphasizing that the Court does
respect to the wisdom of its co-equal branch on the basis of the not have the unbridled authority to rule on just any and every claim
principle of separation of powers. To be clear, the separation of of constitutional violation. Jurisprudence is replete with the rule that
powers is a fundamental principle in our system of government, the power of judicial review is limited by four exacting requisites, viz :
which obtains not through express provision but by actual division in (a) there must be an actual case or controversy; (b) the petitioners
our Constitution. Each department of the government has exclusive must possess locus standi; (c) the question of constitutionality must
cognizance of matters within its jurisdiction and is supreme within its be raised at the earliest opportunity; and (d) the issue of
own sphere.81 constitutionality must be the lis mota of the case.96
Thus, the 1987 Constitution provides that: (a) the legislative power Actual Case or Controversy
shall be vested in the Congress of the Philippines;82 (b) the executive Proponents of the RH Law submit that the subj ect petitions do not
power shall be vested in the President of the Philippines;83 and (c) present any actual case or controversy because the RH Law has yet
the judicial power shall be vested in one Supreme Court and in such to be implemented.97 They claim that the questions raised by the
lower courts as may be established by law.84 The Constitution has petitions are not yet concrete and ripe for adjudication since no one
truly blocked out with deft strokes and in bold lines, the allotment of has been charged with violating any of its provisions and that there
powers among the three branches of government.85 is no showing that any of the petitioners' rights has been adversely
In its relationship with its co-equals, the Judiciary recognizes the affected by its operation.98 In short, it is contended that judicial
doctrine of separation of powers which imposes upon the courts review of the RH Law is premature.
proper restraint, born of the nature of their functions and of their An actual case or controversy means an existing case or
respect for the other branches of government, in striking down the controversy that is appropriate or ripe for determination, not
acts of the Executive or the Legislature as unconstitutional. Verily, conjectural or anticipatory, lest the decision of the court would
the policy is a harmonious blend of courtesy and caution.86 amount to an advisory opinion.99 The rule is that courts do not sit to
It has also long been observed, however, that in times of social adjudicate mere academic questions to satisfy scholarly interest,
disquietude or political instability, the great landmarks of the however intellectually challenging. The controversy must be
Constitution are apt to be forgotten or marred, if not entirely justiciable-definite and concrete, touching on the legal relations of
obliterated.87 In order to address this, the Constitution impresses parties having adverse legal interests. In other words, the pleadings
upon the Court to respect the acts performed by a co-equal branch must show an active antagonistic assertion of a legal right, on the
done within its sphere of competence and authority, but at the same one hand, and a denial thereof, on the other; that is, it must concern
time, allows it to cross the line of separation - but only at a very a real, tangible and not merely a theoretical question or issue. There
limited and specific point - to determine whether the acts of the ought to be an actual and substantial controversy admitting of
executive and the legislative branches are null because they were specific relief through a decree conclusive in nature, as distinguished
from an opinion advising what the law would be upon a hypothetical to be enforced and applied against them,111 and the government has
state of facts.100 yet to distribute reproductive health devices that are abortive. 112
Corollary to the requirement of an actual case or controversy is the The petitioners, for their part, invariably invoke the "transcendental
requirement of ripeness.101 A question is ripe for adjudication when importance" doctrine and their status as citizens and taxpayers in
the act being challenged has had a direct adverse effect on the establishing the requisite locus standi.
individual challenging it. For a case to be considered ripe for Locus standi or legal standing is defined as a personal and
adjudication, it is a prerequisite that something has then been substantial interest in a case such that the party has sustained or will
accomplished or performed by either branch before a court may sustain direct injury as a result of the challenged governmental
come into the picture, and the petitioner must allege the existence of act.113 It requires a personal stake in the outcome of the controversy
an immediate or threatened injury to himself as a result of the as to assure the concrete adverseness which sharpens the
challenged action. He must show that he has sustained or is presentation of issues upon which the court so largely depends for
immediately in danger of sustaining some direct injury as a result of illumination of difficult constitutional questions.114
the act complained of102 In relation to locus standi, the "as applied challenge" embodies the
In The Province of North Cotabato v. The Government of the rule that one can challenge the constitutionality of a statute only if he
Republic of the Philippines,103 where the constitutionality of an asserts a violation of his own rights. The rule prohibits one from
unimplemented Memorandum of Agreement on the Ancestral challenging the constitutionality of the statute grounded on a
Domain (MOA-AD) was put in question, it was argued that the Court violation of the rights of third persons not before the court. This rule
has no authority to pass upon the issues raised as there was yet no is also known as the prohibition against third-party standing.115
concrete act performed that could possibly violate the petitioners' Transcendental Importance
and the intervenors' rights. Citing precedents, the Court ruled that Notwithstanding, the Court leans on the doctrine that "the rule on
the fact of the law or act in question being not yet effective does not standing is a matter of procedure, hence, can be relaxed for non-
negate ripeness. Concrete acts under a law are not necessary to traditional plaintiffs like ordinary citizens, taxpayers, and legislators
render the controversy ripe. Even a singular violation of the when the public interest so requires, such as when the matter is of
Constitution and/or the law is enough to awaken judicial duty. transcendental importance, of overreaching significance to society,
In this case, the Court is of the view that an actual case or or of paramount public interest."116
controversy exists and that the same is ripe for judicial In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held
determination. Considering that the RH Law and its implementing that in cases of paramount importance where serious constitutional
rules have already taken effect and that budgetary measures to questions are involved, the standing requirement may be relaxed
carry out the law have already been passed, it is evident that the and a suit may be allowed to prosper even where there is no direct
subject petitions present a justiciable controversy. As stated earlier, injury to the party claiming the right of judicial review. In the first
when an action of the legislative branch is seriously alleged to have Emergency Powers Cases,118 ordinary citizens and taxpayers were
infringed the Constitution, it not only becomes a right, but also a duty allowed to question the constitutionality of several executive orders
of the Judiciary to settle the dispute.104 although they had only an indirect and general interest shared in
Moreover, the petitioners have shown that the case is so because common with the public.
medical practitioners or medical providers are in danger of being With these said, even if the constitutionality of the RH Law may not
criminally prosecuted under the RH Law for vague violations thereof, be assailed through an "as-applied challenge, still, the Court has
particularly public health officers who are threatened to be dismissed time and again acted liberally on the locus s tandi requirement. It has
from the service with forfeiture of retirement and other benefits. They accorded certain individuals standing to sue, not otherwise directly
must, at least, be heard on the matter NOW. injured or with material interest affected by a Government act,
Facial Challenge provided a constitutional issue of transcendental importance is
The OSG also assails the propriety of the facial challenge lodged by invoked. The rule on locus standi is, after all, a procedural
the subject petitions, contending that the RH Law cannot be technicality which the Court has, on more than one occasion, waived
challenged "on its face" as it is not a speech regulating measure. 105 or relaxed, thus allowing non-traditional plaintiffs, such as concerned
The Court is not persuaded. citizens, taxpayers, voters or legislators, to sue in the public interest,
In United States (US) constitutional law, a facial challenge, also albeit they may not have been directly injured by the operation of a
known as a First Amendment Challenge, is one that is launched to law or any other government act. As held in Jaworski v. PAGCOR:119
assail the validity of statutes concerning not only protected speech, Granting arguendo that the present action cannot be properly treated
but also all other rights in the First Amendment.106 These include as a petition for prohibition, the transcendental importance of the
religious freedom, freedom of the press, and the right of the people issues involved in this case warrants that we set aside the technical
to peaceably assemble, and to petition the Government for a redress defects and take primary jurisdiction over the petition at bar. One
of grievances.107 After all, the fundamental right to religious freedom, cannot deny that the issues raised herein have potentially pervasive
freedom of the press and peaceful assembly are but component influence on the social and moral well being of this nation, specially
rights of the right to one's freedom of expression, as they are modes the youth; hence, their proper and just determination is an imperative
which one's thoughts are externalized. need. This is in accordance with the well-entrenched principle that
In this jurisdiction, the application of doctrines originating from the rules of procedure are not inflexible tools designed to hinder or
U.S. has been generally maintained, albeit with some modifications. delay, but to facilitate and promote the administration of justice.
While this Court has withheld the application of facial challenges to Their strict and rigid application, which would result in technicalities
strictly penal statues,108 it has expanded its scope to cover statutes that tend to frustrate, rather than promote substantial justice, must
not only regulating free speech, but also those involving religious always be eschewed. (Emphasis supplied)
freedom, and other fundamental rights.109 The underlying reason for In view of the seriousness, novelty and weight as precedents, not
this modification is simple. For unlike its counterpart in the U.S., this only to the public, but also to the bench and bar, the issues raised
Court, under its expanded jurisdiction, is mandated by the must be resolved for the guidance of all. After all, the RH Law
Fundamental Law not only to settle actual controversies involving drastically affects the constitutional provisions on the right to life and
rights which are legally demandable and enforceable, but also to health, the freedom of religion and expression and other
determine whether or not there has been a grave abuse of discretion constitutional rights. Mindful of all these and the fact that the issues
amounting to lack or excess of jurisdiction on the part of any branch of contraception and reproductive health have already caused deep
or instrumentality of the Government.110 Verily, the framers of Our division among a broad spectrum of society, the Court entertains no
Constitution envisioned a proactive Judiciary, ever vigilant with its doubt that the petitions raise issues of transcendental importance
duty to maintain the supremacy of the Constitution. warranting immediate court adjudication. More importantly,
Consequently, considering that the foregoing petitions have considering that it is the right to life of the mother and the unborn
seriously alleged that the constitutional human rights to life, speech which is primarily at issue, the Court need not wait for a life to be
and religion and other fundamental rights mentioned above have taken away before taking action.
been violated by the assailed legislation, the Court has authority to The Court cannot, and should not, exercise judicial restraint at this
take cognizance of these kindred petitions and to determine if the time when rights enshrined in the Constitution are being imperilled to
RH Law can indeed pass constitutional scrutiny. To dismiss these be violated. To do so, when the life of either the mother or her child
petitions on the simple expedient that there exist no actual case or is at stake, would lead to irreparable consequences.
controversy, would diminish this Court as a reactive branch of Declaratory Relief
government, acting only when the Fundamental Law has been The respondents also assail the petitions because they are
transgressed, to the detriment of the Filipino people. essentially petitions for declaratory relief over which the Court has
Locus Standi no original jurisdiction.120 Suffice it to state that most of the petitions
The OSG also attacks the legal personality of the petitioners to file are praying for injunctive reliefs and so the Court would just consider
their respective petitions. It contends that the "as applied challenge" them as petitions for prohibition under Rule 65, over which it has
lodged by the petitioners cannot prosper as the assailed law has yet original jurisdiction. Where the case has far-reaching implications
and prays for injunctive reliefs, the Court may consider them as The petitioners assail the RH Law because it violates the right to life
petitions for prohibition under Rule 65.121 and health of the unborn child under Section 12, Article II of the
One Subject-One Title Constitution. The assailed legislation allowing access to
The petitioners also question the constitutionality of the RH Law, abortifacients/abortives effectively sanctions abortion.130
claiming that it violates Section 26(1 ), Article VI of the According to the petitioners, despite its express terms prohibiting
Constitution,122 prescribing the one subject-one title rule. According abortion, Section 4(a) of the RH Law considers contraceptives that
to them, being one for reproductive health with responsible prevent the fertilized ovum to reach and be implanted in the mother's
parenthood, the assailed legislation violates the constitutional womb as an abortifacient; thus, sanctioning contraceptives that take
standards of due process by concealing its true intent - to act as a effect after fertilization and prior to implantation, contrary to the intent
population control measure.123 of the Framers of the Constitution to afford protection to the fertilized
To belittle the challenge, the respondents insist that the RH Law is ovum which already has life.
not a birth or population control measure,124 and that the concepts of They argue that even if Section 9 of the RH Law allows only "non-
"responsible parenthood" and "reproductive health" are both abortifacient" hormonal contraceptives, intrauterine devices,
interrelated as they are inseparable.125 injectables and other safe, legal, non-abortifacient and effective
Despite efforts to push the RH Law as a reproductive health law, the family planning products and supplies, medical research shows that
Court sees it as principally a population control measure. The corpus contraceptives use results in abortion as they operate to kill the
of the RH Law is geared towards the reduction of the country's fertilized ovum which already has life.131
population. While it claims to save lives and keep our women and As it opposes the initiation of life, which is a fundamental human
children healthy, it also promotes pregnancy-preventing products. As good, the petitioners assert that the State sanction of contraceptive
stated earlier, the RH Law emphasizes the need to provide Filipinos, use contravenes natural law and is an affront to the dignity of man. 132
especially the poor and the marginalized, with access to information Finally, it is contended that since Section 9 of the RH Law requires
on the full range of modem family planning products and methods. the Food and Drug Administration (FDA) to certify that the product or
These family planning methods, natural or modem, however, are supply is not to be used as an abortifacient, the assailed legislation
clearly geared towards the prevention of pregnancy. effectively confirms that abortifacients are not prohibited. Also
For said reason, the manifest underlying objective of the RH Law is considering that the FDA is not the agency that will actually
to reduce the number of births in the country. supervise or administer the use of these products and supplies to
It cannot be denied that the measure also seeks to provide pre-natal prospective patients, there is no way it can truthfully make a
and post-natal care as well. A large portion of the law, however, certification that it shall not be used for abortifacient purposes. 133
covers the dissemination of information and provisions on access to Position of the Respondents
medically-safe, non-abortifacient, effective, legal, affordable, and For their part, the defenders of the RH Law point out that the intent
quality reproductive health care services, methods, devices, and of the Framers of the Constitution was simply the prohibition of
supplies, which are all intended to prevent pregnancy. abortion. They contend that the RH Law does not violate the
The Court, thus, agrees with the petitioners' contention that the Constitution since the said law emphasizes that only "non-
whole idea of contraception pervades the entire RH Law. It is, in fact, abortifacient" reproductive health care services, methods, devices
the central idea of the RH Law.126 Indeed, remove the provisions that products and supplies shall be made accessible to the public.134
refer to contraception or are related to it and the RH Law loses its According to the OSG, Congress has made a legislative
very foundation.127 As earlier explained, "the other positive provisions determination that contraceptives are not abortifacients by enacting
such as skilled birth attendance, maternal care including pre-and the RH Law. As the RH Law was enacted with due consideration to
post-natal services, prevention and management of reproductive various studies and consultations with the World Health Organization
tract infections including HIV/AIDS are already provided for in the (WHO) and other experts in the medical field, it is asserted that the
Magna Carta for Women."128 Court afford deference and respect to such a determination and
Be that as it may, the RH Law does not violate the one subject/one pass judgment only when a particular drug or device is later on
bill rule. In Benjamin E. Cawaling, Jr. v. The Commission on determined as an abortive.135
Elections and Rep. Francis Joseph G Escudero, it was written: For his part, respondent Lagman argues that the constitutional
It is well-settled that the "one title-one subject" rule does not require protection of one's right to life is not violated considering that various
the Congress to employ in the title of the enactment language of studies of the WHO show that life begins from the implantation of the
such precision as to mirror, fully index or catalogue all the contents fertilized ovum. Consequently, he argues that the RH Law is
and the minute details therein. The rule is sufficiently complied with if constitutional since the law specifically provides that only
the title is comprehensive enough as to include the general object contraceptives that do not prevent the implantation of the fertilized
which the statute seeks to effect, and where, as here, the persons ovum are allowed.136
interested are informed of the nature, scope and consequences of The Court's Position
the proposed law and its operation. Moreover, this Court has It is a universally accepted principle that every human being enjoys
invariably adopted a liberal rather than technical construction of the the right to life.137
rule "so as not to cripple or impede legislation." [Emphases supplied] Even if not formally established, the right to life, being grounded on
In this case, a textual analysis of the various provisions of the law natural law, is inherent and, therefore, not a creation of, or
shows that both "reproductive health" and "responsible parenthood" dependent upon a particular law, custom, or belief. It precedes and
are interrelated and germane to the overriding objective to control transcends any authority or the laws of men.
the population growth. As expressed in the first paragraph of Section In this jurisdiction, the right to life is given more than ample
2 of the RH Law: protection. Section 1, Article III of the Constitution provides:
SEC. 2. Declaration of Policy. - The State recognizes and Section 1. No person shall be deprived of life, liberty, or property
guarantees the human rights of all persons including their right to without due process of law, nor shall any person be denied the equal
equality and nondiscrimination of these rights, the right to protection of the laws.
sustainable human development, the right to health which includes As expounded earlier, the use of contraceptives and family planning
reproductive health, the right to education and information, and the methods in the Philippines is not of recent vintage. From the
right to choose and make decisions for themselves in accordance enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
with their religious convictions, ethics, cultural beliefs, and the Dispensation, and/or Distribution of Contraceptive Drugs and
demands of responsible parenthood. Devices "on June 18, 1966, prescribing rules on contraceptive drugs
The one subject/one title rule expresses the principle that the title of and devices which prevent fertilization,138 to the promotion of male
a law must not be "so uncertain that the average person reading it vasectomy and tubal ligation,139 and the ratification of numerous
would not be informed of the purpose of the enactment or put on international agreements, the country has long recognized the need
inquiry as to its contents, or which is misleading, either in referring to to promote population control through the use of contraceptives in
or indicating one subject where another or different one is really order to achieve long-term economic development. Through the
embraced in the act, or in omitting any expression or indication of years, however, the use of contraceptives and other family planning
the real subject or scope of the act."129 methods evolved from being a component of demographic
Considering the close intimacy between "reproductive health" and management, to one centered on the promotion of public health,
"responsible parenthood" which bears to the attainment of the goal particularly, reproductive health.140
of achieving "sustainable human development" as stated under its This has resulted in the enactment of various measures promoting
terms, the Court finds no reason to believe that Congress women's rights and health and the overall promotion of the family's
intentionally sought to deceive the public as to the contents of the well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The
assailed legislation. Population Act of the Philippines" and R.A. No. 9710, otherwise
II - SUBSTANTIVE ISSUES: known as the "The Magna Carta of Women" were legislated.
1-The Right to Life Notwithstanding this paradigm shift, the Philippine national
Position of the Petitioners population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-
coercion."141 As will be discussed later, these principles are not interest in preserving and promoting fetal life." Invariably, in the
merely grounded on administrative policy, but rather, originates from decision, the fetus was referred to, or cited, as a baby or a child. 149
the constitutional protection expressly provided to afford protection Intent of the Framers
to life and guarantee religious freedom. Records of the Constitutional Convention also shed light on the
When Life Begins* intention of the Framers regarding the term "conception" used in
Majority of the Members of the Court are of the position that the Section 12, Article II of the Constitution. From their deliberations, it
question of when life begins is a scientific and medical issue that clearly refers to the moment of "fertilization." The records reflect the
should not be decided, at this stage, without proper hearing and following:
evidence. During the deliberation, however, it was agreed upon that Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
the individual members of the Court could express their own views "The State shall equally protect the life of the mother and the life of
on this matter. the unborn from the moment of conception."
In this regard, the ponente, is of the strong view that life begins at When is the moment of conception?
fertilization. xxx
In answering the question of when life begins, focus should be made Mr. Villegas: As I explained in the sponsorship speech, it is when the
on the particular phrase of Section 12 which reads: ovum is fertilized by the sperm that there is human life. x x x. 150
Section 12. The State recognizes the sanctity of family life and shall xxx
protect and strengthen the family as a basic autonomous social As to why conception is reckoned from fertilization and, as such, the
institution. It shall equally protect the life of the mother and the life of beginning of human life, it was explained:
the unborn from conception. The natural and primary right and duty Mr. Villegas: I propose to review this issue in a biological manner.
of parents in the rearing of the youth for civic efficiency and the The first question that needs to be answered is: Is the fertilized ovum
development of moral character shall receive the support of the alive? Biologically categorically says yes, the fertilized ovum is alive.
Government. First of all, like all living organisms, it takes in nutrients which it
Textually, the Constitution affords protection to the unborn from processes by itself. It begins doing this upon fertilization. Secondly,
conception. This is undisputable because before conception, there is as it takes in these nutrients, it grows from within. Thirdly, it
no unborn to speak of. For said reason, it is no surprise that the multiplies itself at a geometric rate in the continuous process of cell
Constitution is mute as to any proscription prior to conception or division. All these processes are vital signs of life. Therefore, there is
when life begins. The problem has arisen because, amazingly, there no question that biologically the fertilized ovum has life.
are quarters who have conveniently disregarded the scientific fact The second question: Is it human? Genetics gives an equally
that conception is reckoned from fertilization. They are waving the categorical "yes." At the moment of conception, the nuclei of the
view that life begins at implantation. Hence, the issue of when life ovum and the sperm rupture. As this happens 23 chromosomes from
begins. the ovum combine with 23 chromosomes of the sperm to form a total
In a nutshell, those opposing the RH Law contend that conception is of 46 chromosomes. A chromosome count of 46 is found only - and I
synonymous with "fertilization" of the female ovum by the male repeat, only in human cells. Therefore, the fertilized ovum is human.
sperm.142 On the other side of the spectrum are those who assert Since these questions have been answered affirmatively, we must
that conception refers to the "implantation" of the fertilized ovum in conclude that if the fertilized ovum is both alive and human, then, as
the uterus.143 night follows day, it must be human life. Its nature is human.151
Plain and Legal Meaning Why the Constitution used the phrase "from the moment of
It is a canon in statutory construction that the words of the conception" and not "from the moment of fertilization" was not
Constitution should be interpreted in their plain and ordinary because of doubt when human life begins, but rather, because:
meaning. As held in the recent case of Chavez v. Judicial Bar Mr. Tingson: x x x x the phrase from the moment of conception" was
Council:144 described by us here before with the scientific phrase "fertilized
One of the primary and basic rules in statutory construction is that ovum" may be beyond the comprehension of some people; we want
where the words of a statute are clear, plain, and free from to use the simpler phrase "from the moment of conception."152
ambiguity, it must be given its literal meaning and applied without Thus, in order to ensure that the fertilized ovum is given ample
attempted interpretation. It is a well-settled principle of constitutional protection under the Constitution, it was discussed:
construction that the language employed in the Constitution must be Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the
given their ordinary meaning except where technical terms are purpose of writing a Constitution, without specifying "from the
employed. As much as possible, the words of the Constitution moment of conception."
should be understood in the sense they have in common use. What Mr. Davide: I would not subscribe to that particular view because
it says according to the text of the provision to be construed compels according to the Commissioner's own admission, he would leave it to
acceptance and negates the power of the courts to alter it, based on Congress to define when life begins. So, Congress can define life to
the postulate that the framers and the people mean what they say. begin from six months after fertilization; and that would really be
Verba legis non est recedendum - from the words of a statute there very, very, dangerous. It is now determined by science that life
should be no departure. begins from the moment of conception. There can be no doubt about
The raison d' etre for the rule is essentially two-fold: First, because it it. So we should not give any doubt to Congress, too.153
is assumed that the words in which constitutional provisions are Upon further inquiry, it was asked:
couched express the objective sought to be attained; and second, Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on
because the Constitution is not primarily a lawyer's document but that point. Actually, that is one of the questions I was going to raise
essentially that of the people, in whose consciousness it should ever during the period of interpellations but it has been expressed
be present as an important condition for the rule of law to prevail. already. The provision, as proposed right now states:
In conformity with the above principle, the traditional meaning of the The State shall equally protect the life of the mother and the life of
word "conception" which, as described and defined by all reliable the unborn from the moment of conception.
and reputable sources, means that life begins at fertilization. When it speaks of "from the moment of conception," does this mean
Webster's Third New International Dictionary describes it as the act when the egg meets the sperm?
of becoming pregnant, formation of a viable zygote; the fertilization Mr. Villegas: Yes, the ovum is fertilized by the sperm.
that results in a new entity capable of developing into a being like its Mr. Gascon: Therefore that does not leave to Congress the right to
parents.145 determine whether certain contraceptives that we know today are
Black's Law Dictionary gives legal meaning to the term "conception" abortifacient or not because it is a fact that some of the so-called
as the fecundation of the female ovum by the male spermatozoon contraceptives deter the rooting of the ovum in the uterus. If
resulting in human life capable of survival and maturation under fertilization has already occurred, the next process is for the fertilized
normal conditions.146 ovum to travel towards the uterus and to take root. What happens
Even in jurisprudence, an unborn child has already a legal with some contraceptives is that they stop the opportunity for the
personality. In Continental Steel Manufacturing Corporation v. Hon. fertilized ovum to reach the uterus. Therefore, if we take the
Accredited Voluntary Arbitrator Allan S. Montano,147 it was written: provision as it is proposed, these so called contraceptives should be
Life is not synonymous with civil personality. One need not acquire banned.
civil personality first before he/she could die. Even a child inside the Mr. Villegas: Yes, if that physical fact is established, then that is what
womb already has life. No less than the Constitution recognizes the is called abortifacient and, therefore, would be unconstitutional and
life of the unborn from conception, that the State must protect should be banned under this provision.
equally with the life of the mother. If the unborn already has life, then Mr. Gascon: Yes. So my point is that I do not think it is up to
the cessation thereof even prior to the child being delivered, qualifies Congress to state whether or not these certain contraceptives are
as death. [Emphases in the original] abortifacient. Scientifically and based on the provision as it is now
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the proposed, they are already considered abortifacient.154
US Supreme Court, said that the State "has respect for human life at From the deliberations above-quoted, it is apparent that the Framers
all stages in the pregnancy" and "a legitimate and substantial of the Constitution emphasized that the State shall provide equal
protection to both the mother and the unborn child from the earliest fertilization with the union of the egg and the sperm resulting in the
opportunity of life, that is, upon fertilization or upon the union of the formation of a new individual, with a unique genetic composition that
male sperm and the female ovum. It is also apparent is that the dictates all developmental stages that ensue.
Framers of the Constitution intended that to prohibit Congress from Similarly, recent medical research on the matter also reveals that:
enacting measures that would allow it determine when life begins. "Human development begins after the union of male and female
Equally apparent, however, is that the Framers of the Constitution gametes or germ cells during a process known as fertilization
did not intend to ban all contraceptives for being unconstitutional. In (conception). Fertilization is a sequence of events that begins with
fact, Commissioner Bernardo Villegas, spearheading the need to the contact of a sperm (spermatozoon) with a secondary oocyte
have a constitutional provision on the right to life, recognized that the (ovum) and ends with the fusion of their pronuclei (the haploid nuclei
determination of whether a contraceptive device is an abortifacient is of the sperm and ovum) and the mingling of their chromosomes to
a question of fact which should be left to the courts to decide on form a new cell. This fertilized ovum, known as a zygote, is a large
based on established evidence.155 diploid cell that is the beginning, or primordium, of a human
From the discussions above, contraceptives that kill or destroy the being."162
fertilized ovum should be deemed an abortive and thus prohibited. The authors of Human Embryology & Teratology163 mirror the same
Conversely, contraceptives that actually prevent the union of the position. They wrote: "Although life is a continuous process,
male sperm and the female ovum, and those that similarly take fertilization is a critical landmark because, under ordinary
action prior to fertilization should be deemed non-abortive, and thus, circumstances, a new, genetically distinct human organism is
constitutionally permissible. thereby formed.... The combination of 23 chromosomes present in
As emphasized by the Framers of the Constitution: each pronucleus results in 46 chromosomes in the zygote. Thus the
xxx xxx xxx diploid number is restored and the embryonic genome is formed.
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I The embryo now exists as a genetic unity."
am pro-life, to the point that I would like not only to protect the life of In support of the RH Bill, The Philippine Medical Association came
the unborn, but also the lives of the millions of people in the world by out with a "Paper on the Reproductive Health Bill (Responsible
fighting for a nuclear-free world. I would just like to be assured of the Parenthood Bill)" and therein concluded that:
legal and pragmatic implications of the term "protection of the life of CONCLUSION
the unborn from the moment of conception." I raised some of these The PMA throws its full weight in supporting the RH Bill at the same
implications this afternoon when I interjected in the interpellation of time that PMA maintains its strong position that fertilization is sacred
Commissioner Regalado. I would like to ask that question again for a because it is at this stage that conception, and thus human life,
categorical answer. begins. Human lives are sacred from the moment of conception, and
I mentioned that if we institutionalize the term "the life of the unborn that destroying those new lives is never licit, no matter what the
from the moment of conception" we are also actually saying "no," not purported good outcome would be. In terms of biology and human
"maybe," to certain contraceptives which are already being embryology, a human being begins immediately at fertilization and
encouraged at this point in time. Is that the sense of the committee after that, there is no point along the continuous line of human
or does it disagree with me? embryogenesis where only a "potential" human being can be
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives posited. Any philosophical, legal, or political conclusion cannot
would be preventive. There is no unborn yet. That is yet unshaped. escape this objective scientific fact.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more The scientific evidence supports the conclusion that a zygote is a
about some contraceptives, such as the intra-uterine device which human organism and that the life of a new human being commences
actually stops the egg which has already been fertilized from taking at a scientifically well defined "moment of conception." This
route to the uterus. So if we say "from the moment of conception," conclusion is objective, consistent with the factual evidence, and
what really occurs is that some of these contraceptives will have to independent of any specific ethical, moral, political, or religious view
be unconstitutionalized. of human life or of human embryos.164
Mr. Azcuna: Yes, to the extent that it is after the fertilization. Conclusion: The Moment of Conception is Reckoned from
Mr. Gascon: Thank you, Mr. Presiding Officer.156 Fertilization
The fact that not all contraceptives are prohibited by the 1987 In all, whether it be taken from a plain meaning, or understood under
Constitution is even admitted by petitioners during the oral medical parlance, and more importantly, following the intention of the
arguments. There it was conceded that tubal ligation, vasectomy, Framers of the Constitution, the undeniable conclusion is that a
even condoms are not classified as abortifacients.157 zygote is a human organism and that the life of a new human being
Atty. Noche: commences at a scientifically well-defined moment of conception,
Before the union of the eggs, egg and the sperm, there is no life yet. that is, upon fertilization.
Justice Bersamin: For the above reasons, the Court cannot subscribe to the theory
There is no life. advocated by Hon. Lagman that life begins at
Atty. Noche: implantation.165 According to him, "fertilization and conception are
So, there is no life to be protected. two distinct and successive stages in the reproductive process. They
Justice Bersamin: are not identical and synonymous."166 Citing a letter of the WHO, he
To be protected. wrote that "medical authorities confirm that the implantation of the
Atty. Noche: fertilized ovum is the commencement of conception and it is only
Under Section 12, yes. after implantation that pregnancy can be medically detected."167
Justice Bersamin: This theory of implantation as the beginning of life is devoid of any
So you have no objection to condoms? legal or scientific mooring. It does not pertain to the beginning of life
Atty. Noche: but to the viability of the fetus. The fertilized ovum/zygote is not an
Not under Section 12, Article II. inanimate object - it is a living human being complete with DNA and
Justice Bersamin: 46 chromosomes.168 Implantation has been conceptualized only for
Even if there is already information that condoms sometimes have convenience by those who had population control in mind. To adopt
porosity? it would constitute textual infidelity not only to the RH Law but also to
Atty. Noche: the Constitution.
Well, yes, Your Honor, there are scientific findings to that effect, Not surprisingly, even the OSG does not support this position.
Your Honor, but I am discussing here Section 12, Article II, Your If such theory would be accepted, it would unnervingly legitimize the
Honor, yes. utilization of any drug or device that would prevent the implantation
Justice Bersamin: of the fetus at the uterine wall. It would be provocative and further
Alright. aggravate religious-based divisiveness.
Atty. Noche: It would legally permit what the Constitution proscribes - abortion
And it's not, I have to admit it's not an abortifacient, Your Honor. 158 and abortifacients.
Medical Meaning The RH Law and Abortion
That conception begins at fertilization is not bereft of medical The clear and unequivocal intent of the Framers of the 1987
foundation. Mosby s Medical, Nursing, and Allied Health Dictionary Constitution in protecting the life of the unborn from conception was
defines conception as "the beginning of pregnancy usually taken to to prevent the Legislature from enacting a measure legalizing
be the instant a spermatozoon enters an ovum and forms a viable abortion. It was so clear that even the Court cannot interpret it
zygote."159 otherwise. This intent of the Framers was captured in the record of
It describes fertilization as "the union of male and female gametes to the proceedings of the 1986 Constitutional Commission.
form a zygote from which the embryo develops."160 Commissioner Bernardo Villegas, the principal proponent of the
The Textbook of Obstetrics (Physiological & Pathological protection of the unborn from conception, explained:
Obstetrics),161 used by medical schools in the Philippines, also
concludes that human life (human person) begins at the moment of
The intention .. .is to make sure that there would be no pro-abortion recognized and afforded protection from the moment the fertilized
laws ever passed by Congress or any pro-abortion decision passed ovum implants - there is nothing to prevent any drug or device from
by the Supreme Court.169 killing or destroying the fertilized ovum prior to implantation.
A reading of the RH Law would show that it is in line with this intent From the foregoing, the Court finds that inasmuch as it affords
and actually proscribes abortion. While the Court has opted not to protection to the fertilized ovum, the RH Law does not sanction
make any determination, at this stage, when life begins, it finds that abortion. To repeat, it is the Court's position that life begins at
the RH Law itself clearly mandates that protection be afforded from fertilization, not at implantation. When a fertilized ovum is implanted
the moment of fertilization. As pointed out by Justice Carpio, the RH in the uterine wall , its viability is sustained but that instance of
Law is replete with provisions that embody the policy of the law to implantation is not the point of beginning of life. It started earlier. And
protect to the fertilized ovum and that it should be afforded safe as defined by the RH Law, any drug or device that induces abortion,
travel to the uterus for implantation.170 that is, which kills or destroys the fertilized ovum or prevents the
Moreover, the RH Law recognizes that abortion is a crime under fertilized ovum to reach and be implanted in the mother's womb, is
Article 256 of the Revised Penal Code, which penalizes the an abortifacient.
destruction or expulsion of the fertilized ovum. Thus: Proviso Under Section 9 of the RH Law
1] xx x. This notwithstanding, the Court finds that the proviso under Section
Section 4. Definition of Terms. - For the purpose of this Act, the 9 of the law that "any product or supply included or to be included in
following terms shall be defined as follows: the EDL must have a certification from the FDA that said product
xxx. and supply is made available on the condition that it is not to be
(q) Reproductive health care refers to the access to a full range of used as an abortifacient" as empty as it is absurd. The FDA, with all
methods, facilities, services and supplies that contribute to its expertise, cannot fully attest that a drug or device will not all be
reproductive health and well-being by addressing reproductive used as an abortifacient, since the agency cannot be present in
health-related problems. It also includes sexual health, the purpose every instance when the contraceptive product or supply will be
of which is the enhancement of life and personal relations. The used.171
elements of reproductive health care include the following: Pursuant to its declared policy of providing access only to safe, legal
xxx. and non-abortifacient contraceptives, however, the Court finds that
(3) Proscription of abortion and management of abortion the proviso of Section 9, as worded, should bend to the legislative
complications; intent and mean that "any product or supply included or to be
xxx. included in the EDL must have a certification from the FDA that said
2] xx x. product and supply is made available on the condition that it cannot
Section 4. x x x. be used as abortifacient." Such a construction is consistent with the
(s) Reproductive health rights refers to the rights of individuals and proviso under the second paragraph of the same section that
couples, to decide freely and responsibly whether or not to have provides:
children; the number, spacing and timing of their children; to make Provided, further, That the foregoing offices shall not purchase or
other decisions concerning reproduction, free of discrimination, acquire by any means emergency contraceptive pills, postcoital pills,
coercion and violence; to have the information and means to do so; abortifacients that will be used for such purpose and their other
and to attain the highest standard of sexual health and reproductive forms or equivalent.
health: Provided, however, That reproductive health rights do not Abortifacients under the RH-IRR
include abortion, and access to abortifacients. At this juncture, the Court agrees with ALFI that the authors of the
3] xx x. RH-IRR gravely abused their office when they redefined the
SEC. 29. Repealing Clause. - Except for prevailing laws against meaning of abortifacient. The RH Law defines "abortifacient" as
abortion, any law, presidential decree or issuance, executive order, follows:
letter of instruction, administrative order, rule or regulation contrary SEC. 4. Definition of Terms. - For the purpose of this Act, the
to or is inconsistent with the provisions of this Act including Republic following terms shall be defined as follows:
Act No. 7392, otherwise known as the Midwifery Act, is hereby (a) Abortifacient refers to any drug or device that induces abortion or
repealed, modified or amended accordingly. the destruction of a fetus inside the mother's womb or the prevention
The RH Law and Abortifacients of the fertilized ovum to reach and be implanted in the mother's
In carrying out its declared policy, the RH Law is consistent in womb upon determination of the FDA.
prohibiting abortifacients. To be clear, Section 4(a) of the RH Law Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
defines an abortifacient as: Section 3.01 For purposes of these Rules, the terms shall be defined
Section 4. Definition of Terms - x x x x as follows:
(a) Abortifacient refers to any drug or device that induces abortion or a) Abortifacient refers to any drug or device that primarily induces
the destruction of a fetus inside the mother's womb or the prevention abortion or the destruction of a fetus inside the mother's womb or the
of the fertilized ovum to reach and be implanted in the mother's prevention of the fertilized ovum to reach and be implanted in the
womb upon determination of the FDA. mother's womb upon determination of the Food and Drug
As stated above, the RH Law mandates that protection must be Administration (FDA). [Emphasis supplied]
afforded from the moment of fertilization. By using the word " or," the Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined,
RH Law prohibits not only drugs or devices that prevent viz:
implantation, but also those that induce abortion and those that j) Contraceptive refers to any safe, legal, effective and scientifically
induce the destruction of a fetus inside the mother's womb. Thus, an proven modern family planning method, device, or health product,
abortifacient is any drug or device that either: whether natural or artificial, that prevents pregnancy but does not
(a) Induces abortion; or primarily destroy a fertilized ovum or prevent a fertilized ovum from
(b) Induces the destruction of a fetus inside the mother's being implanted in the mother's womb in doses of its approved
womb; or indication as determined by the Food and Drug Administration
(c) Prevents the fertilized ovum to reach and be implanted (FDA).
in the mother's womb, upon determination of the FDA. The above-mentioned section of the RH-IRR allows "contraceptives"
Contrary to the assertions made by the petitioners, the Court finds and recognizes as "abortifacient" only those that primarily induce
that the RH Law, consistent with the Constitution, recognizes that abortion or the destruction of a fetus inside the mother's womb or the
the fertilized ovum already has life and that the State has a bounden prevention of the fertilized ovum to reach and be implanted in the
duty to protect it. The conclusion becomes clear because the RH mother's womb.172
Law, first, prohibits any drug or device that induces abortion (first This cannot be done.
kind), which, as discussed exhaustively above, refers to that which In this regard, the observations of Justice Brion and Justice Del
induces the killing or the destruction of the fertilized ovum, and, Castillo are well taken. As they pointed out, with the insertion of the
second, prohibits any drug or device the fertilized ovum to reach and word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
be implanted in the mother's womb (third kind). struck down for being ultra vires.
By expressly declaring that any drug or device that prevents the Evidently, with the addition of the word "primarily," in Section 3.0l(a)
fertilized ovum to reach and be implanted in the mother's womb is an and G) of the RH-IRR is indeed ultra vires. It contravenes Section
abortifacient (third kind), the RH Law does not intend to mean at all 4(a) of the RH Law and should, therefore, be declared invalid. There
that life only begins only at implantation, as Hon. Lagman suggests. is danger that the insertion of the qualifier "primarily" will pave the
It also does not declare either that protection will only be given upon way for the approval of contraceptives which may harm or destroy
implantation, as the petitioners likewise suggest. Rather, it the life of the unborn from conception/fertilization in violation of
recognizes that: one, there is a need to protect the fertilized ovum Article II, Section 12 of the Constitution. With such qualification in the
which already has life, and two, the fertilized ovum must be RH-IRR, it appears to insinuate that a contraceptive will only be
protected the moment it becomes existent - all the way until it considered as an "abortifacient" if its sole known effect is abortion or,
reaches and implants in the mother's womb. After all, if life is only
as pertinent here, the prevention of the implantation of the fertilized x x x Hence, unless it is expressly provided that a legislative act is
ovum. necessary to enforce a constitutional mandate, the presumption now
For the same reason, this definition of "contraceptive" would permit is that all provisions of the constitution are self-executing. If the
the approval of contraceptives which are actually abortifacients constitutional provisions are treated as requiring legislation instead
because of their fail-safe mechanism.174 of self-executing, the legislature would have the power to ignore and
Also, as discussed earlier, Section 9 calls for the certification by the practically nullify the mandate of the fundamental law. This can be
FDA that these contraceptives cannot act as abortive. With this, cataclysmic. That is why the prevailing view is, as it has always
together with the definition of an abortifacient under Section 4 (a) of been, that –
the RH Law and its declared policy against abortion, the undeniable ... in case of doubt, the Constitution should be considered self-
conclusion is that contraceptives to be included in the PNDFS and executing rather than non-self-executing. . . . Unless the contrary is
the EDL will not only be those contraceptives that do not have the clearly intended, the provisions of the Constitution should be
primary action of causing abortion or the destruction of a fetus inside considered self-executing, as a contrary rule would give the
the mother's womb or the prevention of the fertilized ovum to reach legislature discretion to determine when, or whether, they shall be
and be implanted in the mother's womb, but also those that do not effective. These provisions would be subordinated to the will of the
have the secondary action of acting the same way. lawmaking body, which could make them entirely meaningless by
Indeed, consistent with the constitutional policy prohibiting abortion, simply refusing to pass the needed implementing statute.
and in line with the principle that laws should be construed in a (Emphases supplied)
manner that its constitutionality is sustained, the RH Law and its This notwithstanding, it bears mentioning that the petitioners,
implementing rules must be consistent with each other in prohibiting particularly ALFI, do not question contraception and contraceptives
abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the per se.184 In fact, ALFI prays that the status quo - under R.A. No.
RH-IRR should be declared void. To uphold the validity of Section 5921 and R.A. No. 4729, the sale and distribution of contraceptives
3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives are not prohibited when they are dispensed by a prescription of a
that have the primary effect of being an abortive would effectively duly licensed by a physician - be maintained.185
"open the floodgates to the approval of contraceptives which may The legislative intent in the enactment of the RH Law in this regard is
harm or destroy the life of the unborn from conception/fertilization in to leave intact the provisions of R.A. No. 4729. There is no intention
violation of Article II, Section 12 of the Constitution." 175 at all to do away with it. It is still a good law and its requirements are
To repeat and emphasize, in all cases, the "principle of no abortion" still in to be complied with. Thus, the Court agrees with the
embodied in the constitutional protection of life must be upheld. observation of respondent Lagman that the effectivity of the RH Law
2-The Right to Health will not lead to the unmitigated proliferation of contraceptives since
The petitioners claim that the RH Law violates the right to health the sale, distribution and dispensation of contraceptive drugs and
because it requires the inclusion of hormonal contraceptives, devices will still require the prescription of a licensed physician. With
intrauterine devices, injectables and family products and supplies in R.A. No. 4729 in place, there exists adequate safeguards to ensure
the National Drug Formulary and the inclusion of the same in the the public that only contraceptives that are safe are made available
regular purchase of essential medicines and supplies of all national to the public. As aptly explained by respondent Lagman:
hospitals.176 Citing various studies on the matter, the petitioners posit D. Contraceptives cannot be
that the risk of developing breast and cervical cancer is greatly dispensed and used without
increased in women who use oral contraceptives as compared to prescription
women who never use them. They point out that the risk is 108. As an added protection to voluntary users of contraceptives, the
decreased when the use of contraceptives is discontinued. Further, it same cannot be dispensed and used without prescription.
is contended that the use of combined oral contraceptive pills is 109. Republic Act No. 4729 or "An Act to Regulate the Sale,
associated with a threefold increased risk of venous Dispensation, and/ or Distribution of Contraceptive Drugs and
thromboembolism, a twofold increased risk of ischematic stroke, and Devices" and Republic Act No. 5921 or "An Act Regulating the
an indeterminate effect on risk of myocardial infarction.177 Given the Practice of Pharmacy and Setting Standards of Pharmaceutical
definition of "reproductive health" and "sexual health" under Sections Education in the Philippines and for Other Purposes" are not
4(p)178 and (w)179 of the RH Law, the petitioners assert that the repealed by the RH Law and the provisions of said Acts are not
assailed legislation only seeks to ensure that women have inconsistent with the RH Law.
pleasurable and satisfying sex lives.180 110. Consequently, the sale, distribution and dispensation of
The OSG, however, points out that Section 15, Article II of the contraceptive drugs and devices are particularly governed by RA No.
Constitution is not self-executory, it being a mere statement of the 4729 which provides in full:
administration's principle and policy. Even if it were self-executory, "Section 1. It shall be unlawful for any person, partnership, or
the OSG posits that medical authorities refute the claim that corporation, to sell, dispense or otherwise distribute whether for or
contraceptive pose a danger to the health of women.181 without consideration, any contraceptive drug or device, unless such
The Court's Position sale, dispensation or distribution is by a duly licensed drug store or
A component to the right to life is the constitutional right to health. In pharmaceutical company and with the prescription of a qualified
this regard, the Constitution is replete with provisions protecting and medical practitioner.
promoting the right to health. Section 15, Article II of the Constitution "Sec. 2 . For the purpose of this Act:
provides: "(a) "Contraceptive drug" is any medicine, drug, chemical,
Section 15. The State shall protect and promote the right to health of or portion which is used exclusively for the purpose of
the people and instill health consciousness among them. preventing fertilization of the female ovum: and
A portion of Article XIII also specifically provides for the States' duty "(b) "Contraceptive device" is any instrument, device,
to provide for the health of the people, viz: material, or agent introduced into the female reproductive
HEALTH system for the primary purpose of preventing conception.
Section 11. The State shall adopt an integrated and comprehensive "Sec. 3 Any person, partnership, or corporation, violating the
approach to health development which shall endeavor to make provisions of this Act shall be punished with a fine of not more than
essential goods, health and other social services available to all the five hundred pesos or an imprisonment of not less than six months
people at affordable cost. There shall be priority for the needs of the or more than one year or both in the discretion of the Court.
underprivileged, sick, elderly, disabled, women, and children. The "This Act shall take effect upon its approval.
State shall endeavor to provide free medical care to paupers. "Approved: June 18, 1966"
Section 12. The State shall establish and maintain an effective food 111. Of the same import, but in a general manner, Section 25 of RA
and drug regulatory system and undertake appropriate health, No. 5921 provides:
manpower development, and research, responsive to the country's "Section 25. Sale of medicine, pharmaceuticals, drugs and devices.
health needs and problems. No medicine, pharmaceutical, or drug of whatever nature and kind or
Section 13. The State shall establish a special agency for disabled device shall be compounded, dispensed, sold or resold, or otherwise
person for their rehabilitation, self-development, and self-reliance, be made available to the consuming public except through a
and their integration into the mainstream of society. prescription drugstore or hospital pharmacy, duly established in
Finally, Section 9, Article XVI provides: accordance with the provisions of this Act.
Section 9. The State shall protect consumers from trade 112. With all of the foregoing safeguards, as provided for in the RH
malpractices and from substandard or hazardous products. Law and other relevant statutes, the pretension of the petitioners that
Contrary to the respondent's notion, however, these provisions are the RH Law will lead to the unmitigated proliferation of
self-executing. Unless the provisions clearly express the contrary, contraceptives, whether harmful or not, is completely unwarranted
the provisions of the Constitution should be considered self- and baseless.186 [Emphases in the Original. Underlining supplied.]
executory. There is no need for legislation to implement these self- In Re: Section 10 of the RH Law:
executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was The foregoing safeguards should be read in connection with Section
stated: 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. objector the duty to refer the patient seeking reproductive health
- The DOH shall procure, distribute to LGUs and monitor the usage services to another medical practitioner who would be able to
of family planning supplies for the whole country. The DOH shall provide for the patient's needs. For the petitioners, this amounts to
coordinate with all appropriate local government bodies to plan and requiring the conscientious objector to cooperate with the very thing
implement this procurement and distribution program. The supply he refuses to do without violating his/her religious beliefs.190
and budget allotments shall be based on, among others, the current They further argue that even if the conscientious objector's duty to
levels and projections of the following: refer is recognized, the recognition is unduly limited, because
(a) Number of women of reproductive age and couples although it allows a conscientious objector in Section 23 (a)(3) the
who want to space or limit their children; option to refer a patient seeking reproductive health services and
(b) Contraceptive prevalence rate, by type of method information - no escape is afforded the conscientious objector in
used; and Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive
(c) Cost of family planning supplies. health procedures. They claim that the right of other individuals to
Provided, That LGUs may implement its own procurement, conscientiously object, such as: a) those working in public health
distribution and monitoring program consistent with the overall facilities referred to in Section 7; b) public officers involved in the
provisions of this Act and the guidelines of the DOH. implementation of the law referred to in Section 23(b ); and c)
Thus, in the distribution by the DOH of contraceptive drugs and teachers in public schools referred to in Section 14 of the RH Law,
devices, it must consider the provisions of R.A. No. 4729, which is are also not recognize.191
still in effect, and ensure that the contraceptives that it will procure Petitioner Echavez and the other medical practitioners meanwhile,
shall be from a duly licensed drug store or pharmaceutical company contend that the requirement to refer the matter to another health
and that the actual dispensation of these contraceptive drugs and care service provider is still considered a compulsion on those
devices will done following a prescription of a qualified medical objecting healthcare service providers. They add that compelling
practitioner. The distribution of contraceptive drugs and devices them to do the act against their will violates the Doctrine of
must not be indiscriminately done. The public health must be Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too
protected by all possible means. As pointed out by Justice De secular that they tend to disregard the religion of Filipinos.
Castro, a heavy responsibility and burden are assumed by the Authorizing the use of contraceptives with abortive effects,
government in supplying contraceptive drugs and devices, for it may mandatory sex education, mandatory pro-bono reproductive health
be held accountable for any injury, illness or loss of life resulting services to indigents encroach upon the religious freedom of those
from or incidental to their use.187 upon whom they are required.192
At any rate, it bears pointing out that not a single contraceptive has Petitioner CFC also argues that the requirement for a conscientious
yet been submitted to the FDA pursuant to the RH Law. It behooves objector to refer the person seeking reproductive health care
the Court to await its determination which drugs or devices are services to another provider infringes on one's freedom of religion as
declared by the FDA as safe, it being the agency tasked to ensure it forces the objector to become an unwilling participant in the
that food and medicines available to the public are safe for public commission of a serious sin under Catholic teachings. While the
consumption. Consequently, the Court finds that, at this point, the right to act on one's belief may be regulated by the State, the acts
attack on the RH Law on this ground is premature. Indeed, the prohibited by the RH Law are passive acts which produce neither
various kinds of contraceptives must first be measured up to the harm nor injury to the public.193
constitutional yardstick as expounded herein, to be determined as Petitioner CFC adds that the RH Law does not show compelling
the case presents itself. state interest to justify regulation of religious freedom because it
At this point, the Court is of the strong view that Congress cannot mentions no emergency, risk or threat that endangers state
legislate that hormonal contraceptives and intra-uterine devices are interests. It does not explain how the rights of the people (to equality,
safe and non-abortifacient. The first sentence of Section 9 that non-discrimination of rights, sustainable human development, health,
ordains their inclusion by the National Drug Formulary in the EDL by education, information, choice and to make decisions according to
using the mandatory "shall" is to be construed as operative only after religious convictions, ethics, cultural beliefs and the demands of
they have been tested, evaluated, and approved by the FDA. The responsible parenthood) are being threatened or are not being met
FDA, not Congress, has the expertise to determine whether a as to justify the impairment of religious freedom.194
particular hormonal contraceptive or intrauterine device is safe and Finally, the petitioners also question Section 15 of the RH Law
non-abortifacient. The provision of the third sentence concerning the requiring would-be couples to attend family planning and responsible
requirements for the inclusion or removal of a particular family parenthood seminars and to obtain a certificate of compliance. They
planning supply from the EDL supports this construction. claim that the provision forces individuals to participate in the
Stated differently, the provision in Section 9 covering the inclusion of implementation of the RH Law even if it contravenes their religious
hormonal contraceptives, intra-uterine devices, injectables, and beliefs.195 As the assailed law dangles the threat of penalty of fine
other safe, legal, non-abortifacient and effective family planning and/or imprisonment in case of non-compliance with its provisions,
products and supplies by the National Drug Formulary in the EDL is the petitioners claim that the RH Law forcing them to provide,
not mandatory. There must first be a determination by the FDA that support and facilitate access and information to contraception
they are in fact safe, legal, non-abortifacient and effective family against their beliefs must be struck down as it runs afoul to the
planning products and supplies. There can be no predetermination constitutional guarantee of religious freedom.
by Congress that the gamut of contraceptives are "safe, legal, non- The Respondents' Positions
abortifacient and effective" without the proper scientific examination. The respondents, on the other hand, contend that the RH Law does
3 -Freedom of Religion not provide that a specific mode or type of contraceptives be used,
and the Right to Free Speech be it natural or artificial. It neither imposes nor sanctions any religion
Position of the Petitioners: or belief.196 They point out that the RH Law only seeks to serve the
1. On Contraception public interest by providing accessible, effective and quality
While contraceptives and procedures like vasectomy and tubal reproductive health services to ensure maternal and child health, in
ligation are not covered by the constitutional proscription, there are line with the State's duty to bring to reality the social justice health
those who, because of their religious education and background, guarantees of the Constitution,197 and that what the law only prohibits
sincerely believe that contraceptives, whether abortifacient or not, are those acts or practices, which deprive others of their right to
are evil. Some of these are medical practitioners who essentially reproductive health.198 They assert that the assailed law only seeks
claim that their beliefs prohibit not only the use of contraceptives but to guarantee informed choice, which is an assurance that no one will
also the willing participation and cooperation in all things dealing with be compelled to violate his religion against his free will.199
contraceptive use. Petitioner PAX explained that "contraception is The respondents add that by asserting that only natural family
gravely opposed to marital chastity, it is contrary to the good of the planning should be allowed, the petitioners are effectively going
transmission of life, and to the reciprocal self-giving of the spouses; against the constitutional right to religious freedom, the same right
it harms true love and denies the sovereign rule of God in the they invoked to assail the constitutionality of the RH Law.200 In other
transmission of Human life."188 words, by seeking the declaration that the RH Law is
The petitioners question the State-sponsored procurement of unconstitutional, the petitioners are asking that the Court recognize
contraceptives, arguing that the expenditure of their taxes on only the Catholic Church's sanctioned natural family planning
contraceptives violates the guarantee of religious freedom since methods and impose this on the entire citizenry.201
contraceptives contravene their religious beliefs.189 With respect to the duty to refer, the respondents insist that the
2. On Religious Accommodation and same does not violate the constitutional guarantee of religious
The Duty to Refer freedom, it being a carefully balanced compromise between the
Petitioners Imbong and Luat note that while the RH Law attempts to interests of the religious objector, on one hand, who is allowed to
address religious sentiments by making provisions for a keep silent but is required to refer -and that of the citizen who needs
conscientious objector, the constitutional guarantee is nonetheless access to information and who has the right to expect that the health
violated because the law also imposes upon the conscientious care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and Section 29.
23(a)(3) is sufficient accommodation to the right to freely exercise xxx.
one's religion without unnecessarily infringing on the rights of No public money or property shall be appropriated, applied, paid, or
others.202 employed, directly or indirectly, for the use, benefit, or support of any
Whatever burden is placed on the petitioner's religious freedom is sect, church, denomination, sectarian institution, or system of
minimal as the duty to refer is limited in duration, location and religion, or of any priest, preacher, minister, other religious teacher,
impact.203 or dignitary as such, except when such priest, preacher, minister, or
Regarding mandatory family planning seminars under Section 15 , dignitary is assigned to the armed forces, or to any penal institution,
the respondents claim that it is a reasonable regulation providing an or government orphanage or leprosarium.
opportunity for would-be couples to have access to information In short, the constitutional assurance of religious freedom provides
regarding parenthood, family planning, breastfeeding and infant two guarantees: the Establishment Clause and the Free Exercise
nutrition. It is argued that those who object to any information Clause.
received on account of their attendance in the required seminars are The establishment clause "principally prohibits the State from
not compelled to accept information given to them. They are sponsoring any religion or favoring any religion as against other
completely free to reject any information they do not agree with and religions. It mandates a strict neutrality in affairs among religious
retain the freedom to decide on matters of family life without groups."206 Essentially, it prohibits the establishment of a state
intervention of the State.204 religion and the use of public resources for the support or prohibition
For their part, respondents De Venecia et al., dispute the notion that of a religion.
natural family planning is the only method acceptable to Catholics On the other hand, the basis of the free exercise clause is the
and the Catholic hierarchy. Citing various studies and surveys on the respect for the inviolability of the human conscience.207 Under this
matter, they highlight the changing stand of the Catholic Church on part of religious freedom guarantee, the State is prohibited from
contraception throughout the years and note the general acceptance unduly interfering with the outside manifestations of one's belief and
of the benefits of contraceptives by its followers in planning their faith.208 Explaining the concept of religious freedom, the Court, in
families. Victoriano v. Elizalde Rope Workers Union209 wrote:
The Church and The State The constitutional provisions not only prohibits legislation for the
At the outset, it cannot be denied that we all live in a heterogeneous support of any religious tenets or the modes of worship of any sect,
society. It is made up of people of diverse ethnic, cultural and thus forestalling compulsion by law of the acceptance of any creed
religious beliefs and backgrounds. History has shown us that our or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
government, in law and in practice, has allowed these various L. ed. 1148, 1153), but also assures the free exercise of one's
religious, cultural, social and racial groups to thrive in a single chosen form of religion within limits of utmost amplitude. It has been
society together. It has embraced minority groups and is tolerant said that the religion clauses of the Constitution are all designed to
towards all - the religious people of different sects and the non- protect the broadest possible liberty of conscience, to allow each
believers. The undisputed fact is that our people generally believe in man to believe as his conscience directs, to profess his beliefs, and
a deity, whatever they conceived Him to be, and to whom they call to live as he believes he ought to live, consistent with the liberty of
for guidance and enlightenment in crafting our fundamental law. others and with the common good. Any legislation whose effect or
Thus, the preamble of the present Constitution reads: purpose is to impede the observance of one or all religions, or to
We, the sovereign Filipino people, imploring the aid of Almighty God, discriminate invidiously between the religions, is invalid, even though
in order to build a just and humane society, and establish a the burden may be characterized as being only indirect. (Sherbert v.
Government that shall embody our ideals and aspirations, promote Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the
the common good, conserve and develop our patrimony, and secure state regulates conduct by enacting, within its power, a general law
to ourselves and our posterity, the blessings of independence and which has for its purpose and effect to advance the state's secular
democracy under the rule of law and a regime of truth, justice, goals, the statute is valid despite its indirect burden on religious
freedom, love, equality, and peace, do ordain and promulgate this observance, unless the state can accomplish its purpose without
Constitution. imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 Led.
The Filipino people in "imploring the aid of Almighty God " 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5
manifested their spirituality innate in our nature and consciousness and 449).
as a people, shaped by tradition and historical experience. As this is As expounded in Escritor,
embodied in the preamble, it means that the State recognizes with The establishment and free exercise clauses were not designed to
respect the influence of religion in so far as it instills into the mind the serve contradictory purposes. They have a single goal-to promote
purest principles of morality.205 Moreover, in recognition of the freedom of individual religious beliefs and practices. In simplest
contributions of religion to society, the 1935, 1973 and 1987 terms, the free exercise clause prohibits government from inhibiting
constitutions contain benevolent and accommodating provisions religious beliefs with penalties for religious beliefs and practice, while
towards religions such as tax exemption of church property, salary of the establishment clause prohibits government from inhibiting
religious officers in government institutions, and optional religious religious belief with rewards for religious beliefs and practices. In
instructions in public schools. other words, the two religion clauses were intended to deny
The Framers, however, felt the need to put up a strong barrier so government the power to use either the carrot or the stick to
that the State would not encroach into the affairs of the church, and influence individual religious beliefs and practices.210
vice-versa. The principle of separation of Church and State was, Corollary to the guarantee of free exercise of one's religion is the
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz: principle that the guarantee of religious freedom is comprised of two
Section 6. The separation of Church and State shall be inviolable. parts: the freedom to believe, and the freedom to act on one's belief.
Verily, the principle of separation of Church and State is based on The first part is absolute. As explained in Gerona v. Secretary of
mutual respect.1âwphi1 Generally, the State cannot meddle in the Education:211
internal affairs of the church, much less question its faith and The realm of belief and creed is infinite and limitless bounded only
dogmas or dictate upon it. It cannot favor one religion and by one's imagination and thought. So is the freedom of belief,
discriminate against another. On the other hand, the church cannot including religious belief, limitless and without bounds. One may
impose its beliefs and convictions on the State and the rest of the believe in most anything, however strange, bizarre and
citizenry. It cannot demand that the nation follow its beliefs, even if it unreasonable the same may appear to others, even heretical when
sincerely believes that they are good for the country. weighed in the scales of orthodoxy or doctrinal standards. But
Consistent with the principle that not any one religion should ever be between the freedom of belief and the exercise of said belief, there
preferred over another, the Constitution in the above-cited provision is quite a stretch of road to travel.212
utilizes the term "church" in its generic sense, which refers to a The second part however, is limited and subject to the awesome
temple, a mosque, an iglesia, or any other house of God which power of the State and can be enjoyed only with proper regard to the
metaphorically symbolizes a religious organization. Thus, the rights of others. It is "subject to regulation where the belief is
"Church" means the religious congregations collectively. translated into external acts that affect the public welfare." 213
Balancing the benefits that religion affords and the need to provide Legislative Acts and the
an ample barrier to protect the State from the pursuit of its secular Free Exercise Clause
objectives, the Constitution lays down the following mandate in Thus, in case of conflict between the free exercise clause and the
Article III, Section 5 and Article VI, Section 29 (2), of the 1987 State, the Court adheres to the doctrine of benevolent neutrality.
Constitution: This has been clearly decided by the Court in Estrada v. Escritor,
Section. 5. No law shall be made respecting an establishment of (Escritor)214 where it was stated "that benevolent neutrality-
religion, or prohibiting the free exercise thereof. The free exercise accommodation, whether mandatory or permissive, is the spirit,
and enjoyment of religious profession and worship, without intent and framework underlying the Philippine Constitution."215 In the
discrimination or preference, shall forever be allowed. No religious same case, it was further explained that"
test shall be required for the exercise of civil or political rights.
The benevolent neutrality theory believes that with respect to these In the case at bench, it is not within the province of the Court to
governmental actions, accommodation of religion may be allowed, determine whether the use of contraceptives or one's participation in
not to promote the government's favored form of religion, but to the support of modem reproductive health measures is moral from a
allow individuals and groups to exercise their religion without religious standpoint or whether the same is right or wrong according
hindrance. "The purpose of accommodation is to remove a burden to one's dogma or belief. For the Court has declared that matters
on, or facilitate the exercise of, a person's or institution's dealing with "faith, practice, doctrine, form of worship, ecclesiastical
religion."216 "What is sought under the theory of accommodation is law, custom and rule of a church ... are unquestionably ecclesiastical
not a declaration of unconstitutionality of a facially neutral law, but an matters which are outside the province of the civil courts."220 The
exemption from its application or its 'burdensome effect,' whether by jurisdiction of the Court extends only to public and secular morality.
the legislature or the courts."217 Whatever pronouncement the Court makes in the case at bench
In ascertaining the limits of the exercise of religious freedom, the should be understood only in this realm where it has authority.
compelling state interest test is proper.218 Underlying the compelling Stated otherwise, while the Court stands without authority to rule on
state interest test is the notion that free exercise is a fundamental ecclesiastical matters, as vanguard of the Constitution, it does have
right and that laws burdening it should be subject to strict authority to determine whether the RH Law contravenes the
scrutiny.219 In Escritor, it was written: guarantee of religious freedom.
Philippine jurisprudence articulates several tests to determine these At first blush, it appears that the RH Law recognizes and respects
limits. Beginning with the first case on the Free Exercise Clause, religion and religious beliefs and convictions. It is replete with
American Bible Society, the Court mentioned the "clear and present assurances the no one can be compelled to violate the tenets of his
danger" test but did not employ it. Nevertheless, this test continued religion or defy his religious convictions against his free will.
to be cited in subsequent cases on religious liberty. The Gerona Provisions in the RH Law respecting religious freedom are the
case then pronounced that the test of permissibility of religious following:
freedom is whether it violates the established institutions of society 1. The State recognizes and guarantees the human rights of all
and law. The Victoriano case mentioned the "immediate and grave persons including their right to equality and nondiscrimination of
danger" test as well as the doctrine that a law of general applicability these rights, the right to sustainable human development, the right to
may burden religious exercise provided the law is the least restrictive health which includes reproductive health, the right to education and
means to accomplish the goal of the law. The case also used, albeit information, and the right to choose and make decisions for
inappropriately, the "compelling state interest" test. After Victoriano , themselves in accordance with their religious convictions, ethics,
German went back to the Gerona rule. Ebralinag then employed the cultural beliefs, and the demands of responsible parenthood.
"grave and immediate danger" test and overruled the Gerona test. [Section 2, Declaration of Policy]
The fairly recent case of Iglesia ni Cristo went back to the " clear and 2 . The State recognizes marriage as an inviolable social institution
present danger" test in the maiden case of A merican Bible Society. and the foundation of the family which in turn is the foundation of the
Not surprisingly, all the cases which employed the "clear and present nation. Pursuant thereto, the State shall defend:
danger" or "grave and immediate danger" test involved, in one form (a) The right of spouses to found a family in accordance with their
or another, religious speech as this test is often used in cases on religious convictions and the demands of responsible parenthood."
freedom of expression. On the other hand, the Gerona and German [Section 2, Declaration of Policy]
cases set the rule that religious freedom will not prevail over 3. The State shall promote and provide information and access,
established institutions of society and law. Gerona, however, which without bias, to all methods of family planning, including effective
was the authority cited by German has been overruled by Ebralinag natural and modern methods which have been proven medically
which employed the "grave and immediate danger" test . Victoriano safe, legal, non-abortifacient, and effective in accordance with
was the only case that employed the "compelling state interest" test, scientific and evidence-based medical research standards such as
but as explained previously, the use of the test was inappropriate to those registered and approved by the FDA for the poor and
the facts of the case. marginalized as identified through the NHTS-PR and other
The case at bar does not involve speech as in A merican Bible government measures of identifying marginalization: Provided, That
Society, Ebralinag and Iglesia ni Cristo where the "clear and present the State shall also provide funding support to promote modern
danger" and "grave and immediate danger" tests were appropriate natural methods of family planning, especially the Billings Ovulation
as speech has easily discernible or immediate effects. The Gerona Method, consistent with the needs of acceptors and their religious
and German doctrine, aside from having been overruled, is not convictions. [Section 3(e), Declaration of Policy]
congruent with the benevolent neutrality approach, thus not 4. The State shall promote programs that: (1) enable individuals and
appropriate in this jurisdiction. Similar to Victoriano, the present case couples to have the number of children they desire with due
involves purely conduct arising from religious belief. The "compelling consideration to the health, particularly of women, and the resources
state interest" test is proper where conduct is involved for the whole available and affordable to them and in accordance with existing
gamut of human conduct has different effects on the state's laws, public morals and their religious convictions. [Section 3CDJ
interests: some effects may be immediate and short-term while 5. The State shall respect individuals' preferences and choice of
others delayed and far-reaching. A test that would protect the family planning methods that are in accordance with their religious
interests of the state in preventing a substantive evil, whether convictions and cultural beliefs, taking into consideration the State's
immediate or delayed, is therefore necessary. However, not any obligations under various human rights instruments. [Section 3(h)]
interest of the state would suffice to prevail over the right to religious 6. Active participation by nongovernment organizations (NGOs) ,
freedom as this is a fundamental right that enjoys a preferred women's and people's organizations, civil society, faith-based
position in the hierarchy of rights - "the most inalienable and sacred organizations, the religious sector and communities is crucial to
of all human rights", in the words of Jefferson. This right is sacred for ensure that reproductive health and population and development
an invocation of the Free Exercise Clause is an appeal to a higher policies, plans, and programs will address the priority needs of
sovereignty. The entire constitutional order of limited government is women, the poor, and the marginalized. [Section 3(i)]
premised upon an acknowledgment of such higher sovereignty, thus 7. Responsible parenthood refers to the will and ability of a parent to
the Filipinos implore the "aid of Almighty God in order to build a just respond to the needs and aspirations of the family and children. It is
and humane society and establish a government." As held in likewise a shared responsibility between parents to determine and
Sherbert, only the gravest abuses, endangering paramount interests achieve the desired number of children, spacing and timing of their
can limit this fundamental right. A mere balancing of interests which children according to their own family life aspirations, taking into
balances a right with just a colorable state interest is therefore not account psychological preparedness, health status, sociocultural and
appropriate. Instead, only a compelling interest of the state can economic concerns consistent with their religious convictions.
prevail over the fundamental right to religious liberty. The test [Section 4(v)] (Emphases supplied)
requires the state to carry a heavy burden, a compelling one, for to While the Constitution prohibits abortion, laws were enacted allowing
do otherwise would allow the state to batter religion, especially the the use of contraceptives. To some medical practitioners, however,
less powerful ones until they are destroyed. In determining which the whole idea of using contraceptives is an anathema. Consistent
shall prevail between the state's interest and religious liberty, with the principle of benevolent neutrality, their beliefs should be
reasonableness shall be the guide. The "compelling state interest" respected.
serves the purpose of revering religious liberty while at the same The Establishment Clause
time affording protection to the paramount interests of the state. This and Contraceptives
was the test used in Sherbert which involved conduct, i.e. refusal to In the same breath that the establishment clause restricts what the
work on Saturdays. In the end, the "compelling state interest" test, government can do with religion, it also limits what religious sects
by upholding the paramount interests of the state, seeks to protect can or cannot do with the government. They can neither cause the
the very state, without which, religious liberty will not be preserved. government to adopt their particular doctrines as policy for everyone,
[Emphases in the original. Underlining supplied.] nor can they not cause the government to restrict other groups. To
The Court's Position do so, in simple terms, would cause the State to adhere to a
particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that staff on their labor ward who were involved in abortions.226 The Inner
the State cannot enhance its population control program through the House stated "that if 'participation' were defined according to
RH Law simply because the promotion of contraceptive use is whether the person was taking part 'directly' or ' indirectly' this would
contrary to their religious beliefs. Indeed, the State is not precluded actually mean more complexity and uncertainty."227
to pursue its legitimate secular objectives without being dictated While the said case did not cover the act of referral, the applicable
upon by the policies of any one religion. One cannot refuse to pay principle was the same - they could not be forced to assist abortions
his taxes simply because it will cloud his conscience. The if it would be against their conscience or will.
demarcation line between Church and State demands that one Institutional Health Providers
render unto Caesar the things that are Caesar's and unto God the The same holds true with respect to non-maternity specialty
things that are God's.221 hospitals and hospitals owned and operated by a religious group and
The Free Exercise Clause and the Duty to Refer health care service providers. Considering that Section 24 of the RH
While the RH Law, in espousing state policy to promote reproductive Law penalizes such institutions should they fail or refuse to comply
health manifestly respects diverse religious beliefs in line with the with their duty to refer under Section 7 and Section 23(a)(3), the
Non-Establishment Clause, the same conclusion cannot be reached Court deems that it must be struck down for being violative of the
with respect to Sections 7, 23 and 24 thereof. The said provisions freedom of religion. The same applies to Section 23(a)(l) and (a)(2)
commonly mandate that a hospital or a medical practitioner to in relation to Section 24, considering that in the dissemination of
immediately refer a person seeking health care and services under information regarding programs and services and in the performance
the law to another accessible healthcare provider despite their of reproductive health procedures, the religious freedom of health
conscientious objections based on religious or ethical beliefs. care service providers should be respected.
In a situation where the free exercise of religion is allegedly In the case of Islamic Da'wah Council of the Philippines, Inc. v.
burdened by government legislation or practice, the compelling state Office of the Executive Secretary228 it was stressed:
interest test in line with the Court's espousal of the Doctrine of Freedom of religion was accorded preferred status by the framers of
Benevolent Neutrality in Escritor, finds application. In this case, the our fundamental law. And this Court has consistently affirmed this
conscientious objector's claim to religious freedom would warrant an preferred status, well aware that it is "designed to protect the
exemption from obligations under the RH Law, unless the broadest possible liberty of conscience, to allow each man to believe
government succeeds in demonstrating a more compelling state as his conscience directs, to profess his beliefs, and to live as he
interest in the accomplishment of an important secular objective. believes he ought to live, consistent with the liberty of others and
Necessarily so, the plea of conscientious objectors for exemption with the common good."10
from the RH Law deserves no less than strict scrutiny. The Court is not oblivious to the view that penalties provided by law
In applying the test, the first inquiry is whether a conscientious endeavour to ensure compliance. Without set consequences for
objector's right to religious freedom has been burdened. As in either an active violation or mere inaction, a law tends to be
Escritor, there is no doubt that an intense tug-of-war plagues a toothless and ineffectual. Nonetheless, when what is bartered for an
conscientious objector. One side coaxes him into obedience to the effective implementation of a law is a constitutionally-protected right
law and the abandonment of his religious beliefs, while the other the Court firmly chooses to stamp its disapproval. The punishment of
entices him to a clean conscience yet under the pain of penalty. The a healthcare service provider, who fails and/or refuses to refer a
scenario is an illustration of the predicament of medical practitioners patient to another, or who declines to perform reproductive health
whose religious beliefs are incongruent with what the RH Law procedure on a patient because incompatible religious beliefs, is a
promotes. clear inhibition of a constitutional guarantee which the Court cannot
The Court is of the view that the obligation to refer imposed by the allow.
RH Law violates the religious belief and conviction of a The Implementing Rules and Regulation (RH-IRR)
conscientious objector. Once the medical practitioner, against his The last paragraph of Section 5.24 of the RH-IRR reads:
will, refers a patient seeking information on modem reproductive Provided, That skilled health professional such as provincial, city or
health products, services, procedures and methods, his conscience municipal health officers, chiefs of hospital, head nurses, supervising
is immediately burdened as he has been compelled to perform an midwives, among others, who by virtue of their office are specifically
act against his beliefs. As Commissioner Joaquin A. Bernas charged with the duty to implement the provisions of the RPRH Act
(Commissioner Bernas) has written, "at the basis of the free exercise and these Rules, cannot be considered as conscientious objectors.
clause is the respect for the inviolability of the human conscience.222 This is discriminatory and violative of the equal protection clause.
Though it has been said that the act of referral is an opt-out clause, it The conscientious objection clause should be equally protective of
is, however, a false compromise because it makes pro-life health the religious belief of public health officers. There is no perceptible
providers complicit in the performance of an act that they find distinction why they should not be considered exempt from the
morally repugnant or offensive. They cannot, in conscience, do mandates of the law. The protection accorded to other conscientious
indirectly what they cannot do directly. One may not be the principal, objectors should equally apply to all medical practitioners without
but he is equally guilty if he abets the offensive act by indirect distinction whether they belong to the public or private sector. After
participation. all, the freedom to believe is intrinsic in every individual and the
Moreover, the guarantee of religious freedom is necessarily protective robe that guarantees its free exercise is not taken off even
intertwined with the right to free speech, it being an externalization of if one acquires employment in the government.
one's thought and conscience. This in turn includes the right to be It should be stressed that intellectual liberty occupies a place inferior
silent. With the constitutional guarantee of religious freedom follows to none in the hierarchy of human values. The mind must be free to
the protection that should be afforded to individuals in think what it wills, whether in the secular or religious sphere, to give
communicating their beliefs to others as well as the protection for expression to its beliefs by oral discourse or through the media and,
simply being silent. The Bill of Rights guarantees the liberty of the thus, seek other candid views in occasions or gatherings or in more
individual to utter what is in his mind and the liberty not to utter what permanent aggrupation. Embraced in such concept then are
is not in his mind.223 While the RH Law seeks to provide freedom of freedom of religion, freedom of speech, of the press, assembly and
choice through informed consent, freedom of choice guarantees the petition, and freedom of association.229
liberty of the religious conscience and prohibits any degree of The discriminatory provision is void not only because no such
compulsion or burden, whether direct or indirect, in the practice of exception is stated in the RH Law itself but also because it is
one's religion.224 violative of the equal protection clause in the Constitution. Quoting
In case of conflict between the religious beliefs and moral respondent Lagman, if there is any conflict between the RH-IRR and
convictions of individuals, on one hand, and the interest of the State, the RH Law, the law must prevail.
on the other, to provide access and information on reproductive Justice Mendoza:
health products, services, procedures and methods to enable the I'll go to another point. The RH law .. .in your Comment- in-
people to determine the timing, number and spacing of the birth of Intervention on page 52, you mentioned RH Law is replete with
their children, the Court is of the strong view that the religious provisions in upholding the freedom of religion and respecting
freedom of health providers, whether public or private, should be religious convictions. Earlier, you affirmed this with qualifications.
accorded primacy. Accordingly, a conscientious objector should be Now, you have read, I presumed you have read the IRR-
exempt from compliance with the mandates of the RH Law. If he Implementing Rules and Regulations of the RH Bill?
would be compelled to act contrary to his religious belief and Congressman Lagman:
conviction, it would be violative of "the principle of non-coercion" Yes, Your Honor, I have read but I have to admit, it's a long IRR and
enshrined in the constitutional right to free exercise of religion. I have not thoroughly dissected the nuances of the provisions.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court Justice Mendoza:
of Session, found in the case of Doogan and Wood v. NHS Greater I will read to you one provision. It's Section 5.24. This I cannot find in
Glasgow and Clyde Health Board,225 that the midwives claiming to be the RH Law. But in the IRR it says: " .... skilled health professionals
conscientious objectors under the provisions of Scotland's Abortion such as provincial, city or municipal health officers, chief of hospitals,
Act of 1967, could not be required to delegate, supervise or support head nurses, supervising midwives, among others, who by virtue of
their office are specifically charged with the duty to implement the health-related procedures with open willingness and motivation.
provisions of the RPRH Act and these Rules, cannot be considered Suffice it to say, a person who is forced to perform an act in utter
as conscientious objectors." Do you agree with this? reluctance deserves the protection of the Court as the last vanguard
Congressman Lagman: of constitutional freedoms.
I will have to go over again the provisions, Your Honor. At any rate, there are other secular steps already taken by the
Justice Mendoza: Legislature to ensure that the right to health is protected.
In other words, public health officers in contrast to the private Considering other legislations as they stand now, R.A . No. 4 729 or
practitioners who can be conscientious objectors, skilled health the Contraceptive Act, R.A. No. 6365 or "The Population Act of the
professionals cannot be considered conscientious objectors. Do you Philippines" and R.A. No. 9710, otherwise known as "The Magna
agree with this? Is this not against the constitutional right to the Carta of Women," amply cater to the needs of women in relation to
religious belief? health services and programs. The pertinent provision of Magna
Congressman Lagman: Carta on comprehensive health services and programs for women,
Your Honor, if there is any conflict between the IRR and the law, the in fact, reads:
law must prevail.230 Section 17. Women's Right to Health. - (a) Comprehensive Health
Compelling State Interest Services. - The State shall, at all times, provide for a comprehensive,
The foregoing discussion then begets the question on whether the culture-sensitive, and gender-responsive health services and
respondents, in defense of the subject provisions, were able to: 1] programs covering all stages of a woman's life cycle and which
demonstrate a more compelling state interest to restrain addresses the major causes of women's mortality and morbidity:
conscientious objectors in their choice of services to render; and 2] Provided, That in the provision for comprehensive health services,
discharge the burden of proof that the obligatory character of the law due respect shall be accorded to women's religious convictions, the
is the least intrusive means to achieve the objectives of the law. rights of the spouses to found a family in accordance with their
Unfortunately, a deep scrutiny of the respondents' submissions religious convictions, and the demands of responsible parenthood,
proved to be in vain. The OSG was curiously silent in the and the right of women to protection from hazardous drugs, devices,
establishment of a more compelling state interest that would interventions, and substances.
rationalize the curbing of a conscientious objector's right not to Access to the following services shall be ensured:
adhere to an action contrary to his religious convictions. During the (1) Maternal care to include pre- and post-natal
oral arguments, the OSG maintained the same silence and evasion. services to address pregnancy and infant health
The Transcripts of the Stenographic Notes disclose the following: and nutrition;
Justice De Castro: (2) Promotion of breastfeeding;
Let's go back to the duty of the conscientious objector to refer. .. (3) Responsible, ethical, legal, safe, and
Senior State Solicitor Hilbay: effective methods of family planning;
Yes, Justice. (4) Family and State collaboration in youth
Justice De Castro: sexuality education and health services without
... which you are discussing awhile ago with Justice Abad. What is prejudice to the primary right and duty of
the compelling State interest in imposing this duty to refer to a parents to educate their children;
conscientious objector which refuses to do so because of his (5) Prevention and management of reproductive
religious belief? tract infections, including sexually transmitted
Senior State Solicitor Hilbay: diseases, HIV, and AIDS;
Ahh, Your Honor, .. (6) Prevention and management of reproductive
Justice De Castro: tract cancers like breast and cervical cancers,
What is the compelling State interest to impose this burden? and other gynecological conditions and
Senior State Solicitor Hilbay: disorders;
In the first place, Your Honor, I don't believe that the standard is a (7) Prevention of abortion and management of
compelling State interest, this is an ordinary health legislation pregnancy-related complications;
involving professionals. This is not a free speech matter or a pure (8) In cases of violence against women and
free exercise matter. This is a regulation by the State of the children, women and children victims and
relationship between medical doctors and their patients.231 survivors shall be provided with comprehensive
Resultantly, the Court finds no compelling state interest which would health services that include psychosocial,
limit the free exercise clause of the conscientious objectors, however therapeutic, medical, and legal interventions and
few in number. Only the prevention of an immediate and grave assistance towards healing, recovery, and
danger to the security and welfare of the community can justify the empowerment;
infringement of religious freedom. If the government fails to show the (9) Prevention and management of infertility and
seriousness and immediacy of the threat, State intrusion is sexual dysfunction pursuant to ethical norms
constitutionally unacceptable.232 and medical standards;
Freedom of religion means more than just the freedom to believe. It (10) Care of the elderly women beyond their
also means the freedom to act or not to act according to what one child-bearing years; and
believes. And this freedom is violated when one is compelled to act (11) Management, treatment, and intervention of
against one's belief or is prevented from acting according to one's mental health problems of women and girls. In
belief.233 addition, healthy lifestyle activities are
Apparently, in these cases, there is no immediate danger to the life encouraged and promoted through programs
or health of an individual in the perceived scenario of the subject and projects as strategies in the prevention of
provisions. After all, a couple who plans the timing, number and diseases.
spacing of the birth of their children refers to a future event that is (b) Comprehensive Health Information and Education. - The State
contingent on whether or not the mother decides to adopt or use the shall provide women in all sectors with appropriate, timely, complete,
information, product, method or supply given to her or whether she and accurate information and education on all the above-stated
even decides to become pregnant at all. On the other hand, the aspects of women's health in government education and training
burden placed upon those who object to contraceptive use is programs, with due regard to the following:
immediate and occurs the moment a patient seeks consultation on (1) The natural and primary right and duty of
reproductive health matters. parents in the rearing of the youth and the
Moreover, granting that a compelling interest exists to justify the development of moral character and the right of
infringement of the conscientious objector's religious freedom, the children to be brought up in an atmosphere of
respondents have failed to demonstrate "the gravest abuses, morality and rectitude for the enrichment and
endangering paramount interests" which could limit or override a strengthening of character;
person's fundamental right to religious freedom. Also, the (2) The formation of a person's sexuality that
respondents have not presented any government effort exerted to affirms human dignity; and
show that the means it takes to achieve its legitimate state objective (3) Ethical, legal, safe, and effective family
is the least intrusive means.234 Other than the assertion that the act planning methods including fertility awareness.
of referring would only be momentary, considering that the act of As an afterthought, Asst. Solicitor General Hilbay eventually replied
referral by a conscientious objector is the very action being that the compelling state interest was "Fifteen maternal deaths per
contested as violative of religious freedom, it behooves the day, hundreds of thousands of unintended pregnancies, lives
respondents to demonstrate that no other means can be undertaken changed, x x x."235 He, however, failed to substantiate this point by
by the State to achieve its objective without violating the rights of the concrete facts and figures from reputable sources.
conscientious objector. The health concerns of women may still be The undisputed fact, however, is that the World Health Organization
addressed by other practitioners who may perform reproductive reported that the Filipino maternal mortality rate dropped to 48
percent from 1990 to 2008, 236 although there was still no RH Law at The right of the family to a family living wage and income; and
that time. Despite such revelation, the proponents still insist that The right of families or family assoc1at1ons to participate in the
such number of maternal deaths constitute a compelling state planning and implementation of policies and programs that affect
interest. them.
Granting that there are still deficiencies and flaws in the delivery of In this case, the RH Law, in its not-so-hidden desire to control
social healthcare programs for Filipino women, they could not be population growth, contains provisions which tend to wreck the
solved by a measure that puts an unwarrantable stranglehold on family as a solid social institution. It bars the husband and/or the
religious beliefs in exchange for blind conformity. father from participating in the decision making process regarding
Exception: Life Threatening Cases their common future progeny. It likewise deprives the parents of their
All this notwithstanding, the Court properly recognizes a valid authority over their minor daughter simply because she is already a
exception set forth in the law. While generally healthcare service parent or had suffered a miscarriage.
providers cannot be forced to render reproductive health care The Family and Spousal Consent
procedures if doing it would contravene their religious beliefs, an Section 23(a) (2) (i) of the RH Law states:
exception must be made in life-threatening cases that require the The following acts are prohibited:
performance of emergency procedures. In these situations, the right (a) Any health care service provider, whether public or private, who
to life of the mother should be given preference, considering that a shall: ...
referral by a medical practitioner would amount to a denial of (2) refuse to perform legal and medically-safe reproductive health
service, resulting to unnecessarily placing the life of a mother in procedures on any person of legal age on the ground of lack of
grave danger. Thus, during the oral arguments, Atty. Liban, consent or authorization of the following persons in the following
representing CFC, manifested: "the forced referral clause that we instances:
are objecting on grounds of violation of freedom of religion does not (i) Spousal consent in case of married persons: provided, That in
contemplate an emergency."237 case of disagreement, the decision of the one undergoing the
In a conflict situation between the life of the mother and the life of a procedures shall prevail. [Emphasis supplied]
child, the doctor is morally obliged always to try to save both lives. If, The above provision refers to reproductive health procedures like
however, it is impossible, the resulting death to one should not be tubal litigation and vasectomy which, by their very nature, should
deliberate. Atty. Noche explained: require mutual consent and decision between the husband and the
Principle of Double-Effect. - May we please remind the principal wife as they affect issues intimately related to the founding of a
author of the RH Bill in the House of Representatives of the principle family. Section 3, Art. XV of the Constitution espouses that the State
of double-effect wherein intentional harm on the life of either the shall defend the "right of the spouses to found a family." One person
mother of the child is never justified to bring about a "good" effect. In cannot found a family. The right, therefore, is shared by both
a conflict situation between the life of the child and the life of the spouses. In the same Section 3, their right "to participate in the
mother, the doctor is morally obliged always to try to save both lives. planning and implementation of policies and programs that affect
However, he can act in favor of one (not necessarily the mother) them " is equally recognized.
when it is medically impossible to save both, provided that no direct The RH Law cannot be allowed to infringe upon this mutual decision-
harm is intended to the other. If the above principles are observed, making. By giving absolute authority to the spouse who would
the loss of the child's life or the mother's life is not intentional and, undergo a procedure, and barring the other spouse from
therefore, unavoidable. Hence, the doctor would not be guilty of participating in the decision would drive a wedge between the
abortion or murder. The mother is never pitted against the child husband and wife, possibly result in bitter animosity, and endanger
because both their lives are equally valuable.238 the marriage and the family, all for the sake of reducing the
Accordingly, if it is necessary to save the life of a mother, procedures population. This would be a marked departure from the policy of the
endangering the life of the child may be resorted to even if is against State to protect marriage as an inviolable social institution.241
the religious sentiments of the medical practitioner. As quoted Decision-making involving a reproductive health procedure is a
above, whatever burden imposed upon a medical practitioner in this private matter which belongs to the couple, not just one of them. Any
case would have been more than justified considering the life he decision they would reach would affect their future as a family
would be able to save. because the size of the family or the number of their children
Family Planning Seminars significantly matters. The decision whether or not to undergo the
Anent the requirement imposed under Section 15239 as a condition procedure belongs exclusively to, and shared by, both spouses as
for the issuance of a marriage license, the Court finds the same to one cohesive unit as they chart their own destiny. It is a
be a reasonable exercise of police power by the government. A constitutionally guaranteed private right. Unless it prejudices the
cursory reading of the assailed provision bares that the religious State, which has not shown any compelling interest, the State should
freedom of the petitioners is not at all violated. All the law requires is see to it that they chart their destiny together as one family.
for would-be spouses to attend a seminar on parenthood, family As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A.
planning breastfeeding and infant nutrition. It does not even mandate No. 9710, otherwise known as the "Magna Carta for Women,"
the type of family planning methods to be included in the seminar, provides that women shall have equal rights in all matters relating to
whether they be natural or artificial. As correctly noted by the OSG, marriage and family relations, including the joint decision on the
those who receive any information during their attendance in the number and spacing of their children. Indeed, responsible
required seminars are not compelled to accept the information given parenthood, as Section 3(v) of the RH Law states, is a shared
to them, are completely free to reject the information they find responsibility between parents. Section 23(a)(2)(i) of the RH Law
unacceptable, and retain the freedom to decide on matters of family should not be allowed to betray the constitutional mandate to protect
life without the intervention of the State. and strengthen the family by giving to only one spouse the absolute
4-The Family and the Right to Privacy authority to decide whether to undergo reproductive health
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) procedure.242
thereof violates the provisions of the Constitution by intruding into The right to chart their own destiny together falls within the protected
marital privacy and autonomy. It argues that it cultivates disunity and zone of marital privacy and such state intervention would encroach
fosters animosity in the family rather than promote its solidarity and into the zones of spousal privacy guaranteed by the Constitution. In
total development.240 our jurisdiction, the right to privacy was first recognized in Marje v.
The Court cannot but agree. Mutuc,243 where the Court, speaking through Chief Justice Fernando,
The 1987 Constitution is replete with provisions strengthening the held that "the right to privacy as such is accorded recognition
family as it is the basic social institution. In fact, one article, Article independently of its identification with liberty; in itself, it is fully
XV, is devoted entirely to the family. deserving of constitutional protection."244 Marje adopted the ruling of
ARTICLE XV the US Supreme Court in Griswold v. Connecticut,245 where Justice
THE FAMILY William O. Douglas wrote:
Section 1. The State recognizes the Filipino family as the foundation We deal with a right of privacy older than the Bill of Rights -older
of the nation. Accordingly, it shall strengthen its solidarity and than our political parties, older than our school system. Marriage is a
actively promote its total development. coming together for better or for worse, hopefully enduring, and
Section 2. Marriage, as an inviolable social institution, is the intimate to the degree of being sacred. It is an association that
foundation of the family and shall be protected by the State. promotes a way of life, not causes; a harmony in living, not political
Section 3. The State shall defend: faiths; a bilateral loyalty, not commercial or social projects. Yet it is
The right of spouses to found a family in accordance with their an association for as noble a purpose as any involved in our prior
religious convictions and the demands of responsible parenthood; decisions.
The right of children to assistance, including proper care and Ironically, Griswold invalidated a Connecticut statute which made the
nutrition, and special protection from all forms of neglect, abuse, use of contraceptives a criminal offense on the ground of its
cruelty, exploitation and other conditions prejudicial to their amounting to an unconstitutional invasion of the right to privacy of
development; married persons. Nevertheless, it recognized the zone of privacy
rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that In this connection, the second sentence of Section 23(a)(2)
"specific guarantees in the Bill of Rights have penumbras, formed by (ii)249 should be struck down. By effectively limiting the requirement
emanations from those guarantees that help give them life and of parental consent to "only in elective surgical procedures," it denies
substance. Various guarantees create zones of privacy."246 the parents their right of parental authority in cases where what is
At any rate, in case of conflict between the couple, the courts will involved are "non-surgical procedures." Save for the two exceptions
decide. discussed above, and in the case of an abused child as provided in
The Family and Parental Consent the first sentence of Section 23(a)(2)(ii), the parents should not be
Equally deplorable is the debarment of parental consent in cases deprived of their constitutional right of parental authority. To deny
where the minor, who will be undergoing a procedure, is already a them of this right would be an affront to the constitutional mandate to
parent or has had a miscarriage. Section 7 of the RH law provides: protect and strengthen the family.
SEC. 7. Access to Family Planning. – x x x. 5 - Academic Freedom
No person shall be denied information and access to family planning It is asserted that Section 14 of the RH Law, in relation to Section 24
services, whether natural or artificial: Provided, That minors will not thereof, mandating the teaching of Age-and Development-
be allowed access to modern methods of family planning without Appropriate Reproductive Health Education under threat of fine
written consent from their parents or guardian/s except when the and/or imprisonment violates the principle of academic freedom .
minor is already a parent or has had a miscarriage. According to the petitioners, these provisions effectively force
There can be no other interpretation of this provision except that educational institutions to teach reproductive health education even
when a minor is already a parent or has had a miscarriage, the if they believe that the same is not suitable to be taught to their
parents are excluded from the decision making process of the minor students.250 Citing various studies conducted in the United States
with regard to family planning. Even if she is not yet emancipated, and statistical data gathered in the country, the petitioners aver that
the parental authority is already cut off just because there is a need the prevalence of contraceptives has led to an increase of out-of-
to tame population growth. wedlock births; divorce and breakdown of families; the acceptance of
It is precisely in such situations when a minor parent needs the abortion and euthanasia; the "feminization of poverty"; the aging of
comfort, care, advice, and guidance of her own parents. The State society; and promotion of promiscuity among the youth.251
cannot replace her natural mother and father when it comes to At this point, suffice it to state that any attack on the validity of
providing her needs and comfort. To say that their consent is no Section 14 of the RH Law is premature because the Department of
longer relevant is clearly anti-family. It does not promote unity in the Education, Culture and Sports has yet to formulate a curriculum on
family. It is an affront to the constitutional mandate to protect and age-appropriate reproductive health education. One can only
strengthen the family as an inviolable social institution. speculate on the content, manner and medium of instruction that will
More alarmingly, it disregards and disobeys the constitutional be used to educate the adolescents and whether they will contradict
mandate that "the natural and primary right and duty of parents in the religious beliefs of the petitioners and validate their
the rearing of the youth for civic efficiency and the development of apprehensions. Thus, considering the premature nature of this
moral character shall receive the support of the Government." 247 In particular issue, the Court declines to rule on its constitutionality or
this regard, Commissioner Bernas wrote: validity.
The 1987 provision has added the adjective "primary" to modify the At any rate, Section 12, Article II of the 1987 Constitution provides
right of parents. It imports the assertion that the right of parents is that the natural and primary right and duty of parents in the rearing
superior to that of the State.248 [Emphases supplied] of the youth for civic efficiency and development of moral character
To insist on a rule that interferes with the right of parents to exercise shall receive the support of the Government. Like the 1973
parental control over their minor-child or the right of the spouses to Constitution and the 1935 Constitution, the 1987 Constitution affirms
mutually decide on matters which very well affect the very purpose the State recognition of the invaluable role of parents in preparing
of marriage, that is, the establishment of conjugal and family life, the youth to become productive members of society. Notably, it
would result in the violation of one's privacy with respect to his places more importance on the role of parents in the development of
family. It would be dismissive of the unique and strongly-held Filipino their children by recognizing that said role shall be "primary," that is,
tradition of maintaining close family ties and violative of the that the right of parents in upbringing the youth is superior to that of
recognition that the State affords couples entering into the special the State.252
contract of marriage to as one unit in forming the foundation of the It is also the inherent right of the State to act as parens patriae to aid
family and society. parents in the moral development of the youth. Indeed, the
The State cannot, without a compelling state interest, take over the Constitution makes mention of the importance of developing the
role of parents in the care and custody of a minor child, whether or youth and their important role in nation building.253 Considering that
not the latter is already a parent or has had a miscarriage. Only a Section 14 provides not only for the age-appropriate-reproductive
compelling state interest can justify a state substitution of their health education, but also for values formation; the development of
parental authority. knowledge and skills in self-protection against discrimination; sexual
First Exception: Access to Information abuse and violence against women and children and other forms of
Whether with respect to the minor referred to under the exception gender based violence and teen pregnancy; physical, social and
provided in the second paragraph of Section 7 or with respect to the emotional changes in adolescents; women's rights and children's
consenting spouse under Section 23(a)(2)(i), a distinction must be rights; responsible teenage behavior; gender and development; and
made. There must be a differentiation between access to information responsible parenthood, and that Rule 10, Section 11.01 of the RH-
about family planning services, on one hand, and access to the IRR and Section 4(t) of the RH Law itself provides for the teaching of
reproductive health procedures and modern family planning methods responsible teenage behavior, gender sensitivity and physical and
themselves, on the other. Insofar as access to information is emotional changes among adolescents - the Court finds that the
concerned, the Court finds no constitutional objection to the legal mandate provided under the assailed provision supplements,
acquisition of information by the minor referred to under the rather than supplants, the rights and duties of the parents in the
exception in the second paragraph of Section 7 that would enable moral development of their children.
her to take proper care of her own body and that of her unborn child. Furthermore, as Section 14 also mandates that the mandatory
After all, Section 12, Article II of the Constitution mandates the State reproductive health education program shall be developed in
to protect both the life of the mother as that of the unborn child. conjunction with parent-teacher-community associations, school
Considering that information to enable a person to make informed officials and other interest groups, it could very well be said that it
decisions is essential in the protection and maintenance of ones' will be in line with the religious beliefs of the petitioners. By imposing
health, access to such information with respect to reproductive such a condition, it becomes apparent that the petitioners' contention
health must be allowed. In this situation, the fear that parents might that Section 14 violates Article XV, Section 3(1) of the Constitution is
be deprived of their parental control is unfounded because they are without merit.254
not prohibited to exercise parental guidance and control over their While the Court notes the possibility that educators might raise their
minor child and assist her in deciding whether to accept or reject the objection to their participation in the reproductive health education
information received. program provided under Section 14 of the RH Law on the ground
Second Exception: Life Threatening Cases that the same violates their religious beliefs, the Court reserves its
As in the case of the conscientious objector, an exception must be judgment should an actual case be filed before it.
made in life-threatening cases that require the performance of 6 - Due Process
emergency procedures. In such cases, the life of the minor who has The petitioners contend that the RH Law suffers from vagueness
already suffered a miscarriage and that of the spouse should not be and, thus violates the due process clause of the Constitution.
put at grave risk simply for lack of consent. It should be emphasized According to them, Section 23 (a)(l) mentions a "private health
that no person should be denied the appropriate medical care service provider" among those who may be held punishable but
urgently needed to preserve the primordial right, that is, the right to does not define who is a "private health care service provider." They
life. argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed practice. While health care service providers are not barred from
legislation exempts hospitals operated by religious groups from expressing their own personal opinions regarding the programs and
rendering reproductive health service and modern family planning services on reproductive health, their right must be tempered with
methods. It is unclear, however, if these institutions are also exempt the need to provide public health and safety. The public deserves no
from giving reproductive health information under Section 23(a)(l), or less.
from rendering reproductive health procedures under Section 23(a) 7-Egual Protection
(2). The petitioners also claim that the RH Law violates the equal
Finally, it is averred that the RH Law punishes the withholding, protection clause under the Constitution as it discriminates against
restricting and providing of incorrect information, but at the same the poor because it makes them the primary target of the
time fails to define "incorrect information." government program that promotes contraceptive use . They argue
The arguments fail to persuade. that, rather than promoting reproductive health among the poor, the
A statute or act suffers from the defect of vagueness when it lacks RH Law introduces contraceptives that would effectively reduce the
comprehensible standards that men of common intelligence must number of the poor. Their bases are the various provisions in the RH
necessarily guess its meaning and differ as to its application. It is Law dealing with the poor, especially those mentioned in the guiding
repugnant to the Constitution in two respects: (1) it violates due principles259 and definition of terms260 of the law.
process for failure to accord persons, especially the parties targeted They add that the exclusion of private educational institutions from
by it, fair notice of the conduct to avoid; and (2) it leaves law the mandatory reproductive health education program imposed by
enforcers unbridled discretion in carrying out its provisions and the RH Law renders it unconstitutional.
becomes an arbitrary flexing of the Government In Biraogo v. Philippine Truth Commission,261 the Court had the
muscle.255 Moreover, in determining whether the words used in a occasion to expound on the concept of equal protection. Thus:
statute are vague, words must not only be taken in accordance with One of the basic principles on which this government was founded is
their plain meaning alone, but also in relation to other parts of the that of the equality of right which is embodied in Section 1, Article III
statute. It is a rule that every part of the statute must be interpreted of the 1987 Constitution. The equal protection of the laws is
with reference to the context, that is, every part of it must be embraced in the concept of due process, as every unfair
construed together with the other parts and kept subservient to the discrimination offends the requirements of justice and fair play. It has
general intent of the whole enactment.256 been embodied in a separate clause, however, to provide for a more
As correctly noted by the OSG, in determining the definition of specific guaranty against any form of undue favoritism or hostility
"private health care service provider," reference must be made to from the government. Arbitrariness in general may be challenged on
Section 4(n) of the RH Law which defines a "public health service the basis of the due process clause. But if the particular act assailed
provider," viz: partakes of an unwarranted partiality or prejudice, the sharper
(n) Public health care service provider refers to: (1) public health weapon to cut it down is the equal protection clause.
care institution, which is duly licensed and accredited and devoted "According to a long line of decisions, equal protection simply
primarily to the maintenance and operation of facilities for health requires that all persons or things similarly situated should be treated
promotion, disease prevention, diagnosis, treatment and care of alike, both as to rights conferred and responsibilities imposed." It
individuals suffering from illness, disease, injury, disability or "requires public bodies and inst itutions to treat similarly situated
deformity, or in need of obstetrical or other medical and nursing individuals in a similar manner." "The purpose of the equal protection
care; (2) public health care professional, who is a doctor of medicine, clause is to secure every person within a state's jurisdiction against
a nurse or a midvvife; (3) public health worker engaged in the intentional and arbitrary discrimination, whether occasioned by the
delivery of health care services; or (4) barangay health worker who express terms of a statue or by its improper execution through the
has undergone training programs under any accredited government state's duly constituted authorities." "In other words, the concept of
and NGO and who voluntarily renders primarily health care services equal justice under the law requires the state to govern impartially,
in the community after having been accredited to function as such by and it may not draw distinctions between individuals solely on
the local health board in accordance with the guidelines promulgated differences that are irrelevant to a legitimate governmental
by the Department of Health (DOH) . objective."
Further, the use of the term "private health care institution" in The equal protection clause is aimed at all official state actions, not
Section 7 of the law, instead of "private health care service provider," just those of the legislature. Its inhibitions cover all the departments
should not be a cause of confusion for the obvious reason that they of the government including the political and executive departments,
are used synonymously. and extend to all actions of a state denying equal protection of the
The Court need not belabor the issue of whether the right to be laws, through whatever agency or whatever guise is taken.
exempt from being obligated to render reproductive health service It, however, does not require the universal application of the laws to
and modem family planning methods, includes exemption from being all persons or things without distinction. What it simply requires is
obligated to give reproductive health information and to render equality among equals as determined according to a valid
reproductive health procedures. Clearly, subject to the qualifications classification. Indeed, the equal protection clause permits
and exemptions earlier discussed, the right to be exempt from being classification. Such classification, however, to be valid must pass the
obligated to render reproductive health service and modem family test of reasonableness. The test has four requisites: (1) The
planning methods, necessarily includes exemption from being classification rests on substantial distinctions; (2) It is germane to the
obligated to give reproductive health information and to render purpose of the law; (3) It is not limited to existing conditions only;
reproductive health procedures. The terms "service" and "methods" and (4) It applies equally to all members of the same class.
are broad enough to include the providing of information and the "Superficial differences do not make for a valid classification."
rendering of medical procedures. For a classification to meet the requirements of constitutionality, it
The same can be said with respect to the contention that the RH must include or embrace all persons who naturally belong to the
Law punishes health care service providers who intentionally class. "The classification will be regarded as invalid if all the
withhold, restrict and provide incorrect information regarding members of the class are not similarly treated, both as to rights
reproductive health programs and services. For ready reference, the conferred and obligations imposed. It is not necessary that the
assailed provision is hereby quoted as follows: classification be made with absolute symmetry, in the sense that the
SEC. 23. Prohibited Acts. - The following acts are prohibited: members of the class should possess the same characteristics in
(a) Any health care service provider, whether public or private, who equal degree. Substantial similarity will suffice; and as long as this is
shall: achieved, all those covered by the classification are to be treated
(1) Knowingly withhold information or restrict the dissemination equally. The mere fact that an individual belonging to a class differs
thereof, and/ or intentionally provide incorrect information regarding from the other members, as long as that class is substantially
programs and services on reproductive health including the right to distinguishable from all others, does not justify the non-application of
informed choice and access to a full range of legal, medically-safe, the law to him."
non-abortifacient and effective family planning methods; The classification must not be based on existing circumstances only,
From its plain meaning, the word "incorrect" here denotes failing to or so constituted as to preclude addition to the number included in
agree with a copy or model or with established rules; inaccurate, the class. It must be of such a nature as to embrace all those who
faulty; failing to agree with the requirements of duty, morality or may thereafter be in similar circumstances and conditions. It must
propriety; and failing to coincide with the truth. 257 On the other hand, not leave out or "underinclude" those that should otherwise fall into a
the word "knowingly" means with awareness or deliberateness that certain classification. [Emphases supplied; citations excluded]
is intentional.258 Used together in relation to Section 23(a)(l), they To provide that the poor are to be given priority in the government's
connote a sense of malice and ill motive to mislead or misrepresent reproductive health care program is not a violation of the equal
the public as to the nature and effect of programs and services on protection clause. In fact, it is pursuant to Section 11, Article XIII of
reproductive health. Public health and safety demand that health the Constitution which recognizes the distinct necessity to address
care service providers give their honest and correct medical the needs of the underprivileged by providing that they be given
information in accordance with what is acceptable in medical priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive The petitioners likewise question the delegation by Congress to the
approach to health development which shall endeavor to make FDA of the power to determine whether or not a supply or product is
essential goods, health and other social services available to all the to be included in the Essential Drugs List (EDL).266
people at affordable cost. There shall be priority for the needs of the The Court finds nothing wrong with the delegation. The FDA does
underprivileged, sick, elderly, disabled, women, and children. The not only have the power but also the competency to evaluate,
State shall endeavor to provide free medical care to paupers. register and cover health services and methods. It is the only
It should be noted that Section 7 of the RH Law prioritizes poor and government entity empowered to render such services and highly
marginalized couples who are suffering from fertility issues and proficient to do so. It should be understood that health services and
desire to have children. There is, therefore, no merit to the methods fall under the gamut of terms that are associated with what
contention that the RH Law only seeks to target the poor to reduce is ordinarily understood as "health products."
their number. While the RH Law admits the use of contraceptives, it In this connection, Section 4 of R.A. No. 3 720, as amended by R.A.
does not, as elucidated above, sanction abortion. As Section 3(1) No. 9711 reads:
explains, the "promotion and/or stabilization of the population growth SEC. 4. To carry out the provisions of this Act, there is hereby
rate is incidental to the advancement of reproductive health." created an office to be called the Food and Drug Administration
Moreover, the RH Law does not prescribe the number of children a (FDA) in the Department of Health (DOH). Said Administration shall
couple may have and does not impose conditions upon couples who be under the Office of the Secretary and shall have the following
intend to have children. While the petitioners surmise that the functions, powers and duties:
assailed law seeks to charge couples with the duty to have children "(a) To administer the effective implementation of this Act
only if they would raise them in a truly humane way, a deeper look and of the rules and regulations issued pursuant to the
into its provisions shows that what the law seeks to do is to simply same;
provide priority to the poor in the implementation of government "(b) To assume primary jurisdiction in the collection of
programs to promote basic reproductive health care. samples of health products;
With respect to the exclusion of private educational institutions from "(c) To analyze and inspect health products in connection
the mandatory reproductive health education program under Section with the implementation of this Act;
14, suffice it to state that the mere fact that the children of those who "(d) To establish analytical data to serve as basis for the
are less fortunate attend public educational institutions does not preparation of health products standards, and to
amount to substantial distinction sufficient to annul the assailed recommend standards of identity, purity, safety, efficacy,
provision. On the other hand, substantial distinction rests between quality and fill of container;
public educational institutions and private educational institutions, "(e) To issue certificates of compliance with technical
particularly because there is a need to recognize the academic requirements to serve as basis for the issuance of
freedom of private educational institutions especially with respect to appropriate authorization and spot-check for compliance
religious instruction and to consider their sensitivity towards the with regulations regarding operation of manufacturers,
teaching of reproductive health education. importers, exporters, distributors, wholesalers, drug
8-Involuntary Servitude outlets, and other establishments and facilities of health
The petitioners also aver that the RH Law is constitutionally infirm as products, as determined by the FDA;
it violates the constitutional prohibition against involuntary servitude. "x x x
They posit that Section 17 of the assailed legislation requiring private "(h) To conduct appropriate tests on all applicable health
and non-government health care service providers to render forty- products prior to the issuance of appropriate
eight (48) hours of pro bono reproductive health services, actually authorizations to ensure safety, efficacy, purity, and
amounts to involuntary servitude because it requires medical quality;
practitioners to perform acts against their will.262 "(i) To require all manufacturers, traders, distributors,
The OSG counters that the rendition of pro bono services envisioned importers, exporters, wholesalers, retailers, consumers,
in Section 17 can hardly be considered as forced labor analogous to and non-consumer users of health products to report to
slavery, as reproductive health care service providers have the the FDA any incident that reasonably indicates that said
discretion as to the manner and time of giving pro bono services. product has caused or contributed to the death, serious
Moreover, the OSG points out that the imposition is within the illness or serious injury to a consumer, a patient, or any
powers of the government, the accreditation of medical practitioners person;
with PhilHealth being a privilege and not a right. "(j) To issue cease and desist orders motu propio or upon
The point of the OSG is well-taken. verified complaint for health products, whether or not
It should first be mentioned that the practice of medicine is registered with the FDA Provided, That for registered
undeniably imbued with public interest that it is both a power and a health products, the cease and desist order is valid for
duty of the State to control and regulate it in order to protect and thirty (30) days and may be extended for sixty ( 60) days
promote the public welfare. Like the legal profession, the practice of only after due process has been observed;
medicine is not a right but a privileged burdened with conditions as it "(k) After due process, to order the ban, recall, and/or
directly involves the very lives of the people. A fortiori, this power withdrawal of any health product found to have caused
includes the power of Congress263 to prescribe the qualifications for death, serious illness or serious injury to a consumer or
the practice of professions or trades which affect the public welfare, patient, or is found to be imminently injurious, unsafe,
the public health, the public morals, and the public safety; and to dangerous, or grossly deceptive, and to require all
regulate or control such professions or trades, even to the point of concerned to implement the risk management plan which
revoking such right altogether.264 is a requirement for the issuance of the appropriate
Moreover, as some petitioners put it, the notion of involuntary authorization;
servitude connotes the presence of force, threats, intimidation or x x x.
other similar means of coercion and compulsion.265 A reading of the As can be gleaned from the above, the functions, powers and duties
assailed provision, however, reveals that it only encourages private of the FDA are specific to enable the agency to carry out the
and non- government reproductive healthcare service providers to mandates of the law. Being the country's premiere and sole agency
render pro bono service. Other than non-accreditation with that ensures the safety of food and medicines available to the public,
PhilHealth, no penalty is imposed should they choose to do the FDA was equipped with the necessary powers and functions to
otherwise. Private and non-government reproductive healthcare make it effective. Pursuant to the principle of necessary implication,
service providers also enjoy the liberty to choose which kind of the mandate by Congress to the FDA to ensure public health and
health service they wish to provide, when, where and how to provide safety by permitting only food and medicines that are safe includes
it or whether to provide it all. Clearly, therefore, no compulsion, force "service" and "methods." From the declared policy of the RH Law, it
or threat is made upon them to render pro bono service against their is clear that Congress intended that the public be given only those
will. While the rendering of such service was made a prerequisite to medicines that are proven medically safe, legal, non-abortifacient,
accreditation with PhilHealth, the Court does not consider the same and effective in accordance with scientific and evidence-based
to be an unreasonable burden, but rather, a necessary incentive medical research standards. The philosophy behind the permitted
imposed by Congress in the furtherance of a perceived legitimate delegation was explained in Echagaray v. Secretary of Justice,267 as
state interest. follows:
Consistent with what the Court had earlier discussed, however, it The reason is the increasing complexity of the task of the
should be emphasized that conscientious objectors are exempt from government and the growing inability of the legislature to cope
this provision as long as their religious beliefs and convictions do not directly with the many problems demanding its attention. The growth
allow them to render reproductive health service, pro bona or of society has ramified its activities and created peculiar and
otherwise. sophisticated problems that the legislature cannot be expected
9-Delegation of Authority to the FDA reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the legislate on all subjects which extends to all matters of general
competence, let alone the interest and the time, to provide the concern or common interest.275
required direct and efficacious, not to say specific solutions. 11 - Natural Law
10- Autonomy of Local Governments and the Autonomous Region With respect to the argument that the RH Law violates natural
of Muslim Mindanao (ARMM) law,276 suffice it to say that the Court does not duly recognize it as a
As for the autonomy of local governments, the petitioners claim that legal basis for upholding or invalidating a law. Our only guidepost is
the RH Law infringes upon the powers devolved to local government the Constitution. While every law enacted by man emanated from
units (LGUs) under Section 17 of the Local Government Code. Said what is perceived as natural law, the Court is not obliged to see if a
Section 17 vested upon the LGUs the duties and functions pertaining statute, executive issuance or ordinance is in conformity to it. To
to the delivery of basic services and facilities, as follows: begin with, it is not enacted by an acceptable legitimate body.
SECTION 17. Basic Services and Facilities. – Moreover, natural laws are mere thoughts and notions on inherent
(a) Local government units shall endeavor to be self- rights espoused by theorists, philosophers and theologists. The
reliant and shall continue exercising the powers and jurists of the philosophical school are interested in the law as an
discharging the duties and functions currently vested upon abstraction, rather than in the actual law of the past or
them. They shall also discharge the functions and present.277 Unless, a natural right has been transformed into a
responsibilities of national agencies and offices devolved written law, it cannot serve as a basis to strike down a law. In
to them pursuant to this Code. Local government units Republic v. Sandiganbayan,278 the very case cited by the petitioners,
shall likewise exercise such other powers and discharge it was explained that the Court is not duty-bound to examine every
such other functions and responsibilities as are necessary, law or action and whether it conforms with both the Constitution and
appropriate, or incidental to efficient and effective natural law. Rather, natural law is to be used sparingly only in the
provision of the basic services and facilities enumerated most peculiar of circumstances involving rights inherent to man
herein. where no law is applicable.279
(b) Such basic services and facilities include, but are not At any rate, as earlier expounded, the RH Law does not sanction the
limited to, x x x. taking away of life. It does not allow abortion in any shape or form. It
While the aforementioned provision charges the LGUs to only seeks to enhance the population control program of the
take on the functions and responsibilities that have already government by providing information and making non-abortifacient
been devolved upon them from the national agencies on contraceptives more readily available to the public, especially to the
the aspect of providing for basic services and facilities in poor.
their respective jurisdictions, paragraph (c) of the same Facts and Fallacies
provision provides a categorical exception of cases and the Wisdom of the Law
involving nationally-funded projects, facilities, programs In general, the Court does not find the RH Law as unconstitutional
and services.268 Thus: insofar as it seeks to provide access to medically-safe, non-
(c) Notwithstanding the provisions of subsection (b) abortifacient, effective, legal, affordable, and quality reproductive
hereof, public works and infrastructure projects and other healthcare services, methods, devices, and supplies. As earlier
facilities, programs and services funded by the National pointed out, however, the religious freedom of some sectors of
Government under the annual General Appropriations Act, society cannot be trampled upon in pursuit of what the law hopes to
other special laws, pertinent executive orders, and those achieve. After all, the Constitutional safeguard to religious freedom is
wholly or partially funded from foreign sources, are not a recognition that man stands accountable to an authority higher
covered under this Section, except in those cases where than the State.
the local government unit concerned is duly designated as In conformity with the principle of separation of Church and State,
the implementing agency for such projects, facilities, one religious group cannot be allowed to impose its beliefs on the
programs and services. [Emphases supplied] rest of the society. Philippine modem society leaves enough room
The essence of this express reservation of power by the national for diversity and pluralism. As such, everyone should be tolerant and
government is that, unless an LGU is particularly designated as the open-minded so that peace and harmony may continue to reign as
implementing agency, it has no power over a program for which we exist alongside each other.
funding has been provided by the national government under the As healthful as the intention of the RH Law may be, the idea does
annual general appropriations act, even if the program involves the not escape the Court that what it seeks to address is the problem of
delivery of basic services within the jurisdiction of the LGU.269 A rising poverty and unemployment in the country. Let it be said that
complete relinquishment of central government powers on the matter the cause of these perennial issues is not the large population but
of providing basic facilities and services cannot be implied as the the unequal distribution of wealth. Even if population growth is
Local Government Code itself weighs against it.270 controlled, poverty will remain as long as the country's wealth
In this case, a reading of the RH Law clearly shows that whether it remains in the hands of the very few.
pertains to the establishment of health care facilities,271 the hiring of At any rate, population control may not be beneficial for the country
skilled health professionals,272 or the training of barangay health in the long run. The European and Asian countries, which embarked
workers,273 it will be the national government that will provide for the on such a program generations ago , are now burdened with ageing
funding of its implementation. Local autonomy is not absolute. The populations. The number of their young workers is dwindling with
national government still has the say when it comes to national adverse effects on their economy. These young workers represent a
priority programs which the local government is called upon to significant human capital which could have helped them invigorate,
implement like the RH Law. innovate and fuel their economy. These countries are now trying to
Moreover, from the use of the word "endeavor," the LG Us are reverse their programs, but they are still struggling. For one,
merely encouraged to provide these services. There is nothing in the Singapore, even with incentives, is failing.
wording of the law which can be construed as making the availability And in this country, the economy is being propped up by remittances
of these services mandatory for the LGUs. For said reason, it cannot from our Overseas Filipino Workers. This is because we have an
be said that the RH Law amounts to an undue encroachment by the ample supply of young able-bodied workers. What would happen if
national government upon the autonomy enjoyed by the local the country would be weighed down by an ageing population and the
governments. fewer younger generation would not be able to support them? This
The ARMM would be the situation when our total fertility rate would go down
The fact that the RH Law does not intrude in the autonomy of local below the replacement level of two (2) children per woman.280
governments can be equally applied to the ARMM. The RH Law Indeed, at the present, the country has a population problem, but the
does not infringe upon its autonomy. Moreover, Article III, Sections State should not use coercive measures (like the penal provisions of
6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM, the RH Law against conscientious objectors) to solve it.
alluded to by petitioner Tillah to justify the exemption of the operation Nonetheless, the policy of the Court is non-interference in the
of the RH Law in the autonomous region, refer to the policy wisdom of a law.
statements for the guidance of the regional government. These x x x. But this Court cannot go beyond what the legislature has laid
provisions relied upon by the petitioners simply delineate the powers down. Its duty is to say what the law is as enacted by the lawmaking
that may be exercised by the regional government, which can, in no body. That is not the same as saying what the law should be or what
manner, be characterized as an abdication by the State of its power is the correct rule in a given set of circumstances. It is not the
to enact legislation that would benefit the general welfare. After all, province of the judiciary to look into the wisdom of the law nor to
despite the veritable autonomy granted the ARMM, the Constitution question the policies adopted by the legislative branch. Nor is it the
and the supporting jurisprudence, as they now stand, reject the business of this Tribunal to remedy every unjust situation that may
notion of imperium et imperio in the relationship between the arise from the application of a particular law. It is for the legislature to
national and the regional governments.274 Except for the express and enact remedial legislation if that would be necessary in the premises.
implied limitations imposed on it by the Constitution, Congress But as always, with apt judicial caution and cold neutrality, the Court
cannot be restricted to exercise its inherent and plenary power to must carry out the delicate function of interpreting the law, guided by
the Constitution and existing legislation and mindful of settled [Argument of Counsel from pages 198-204 intentionally omitted]
jurisprudence. The Court's function is therefore limited, and Mr. Lindsay L. Thompson, of Olympia, Wash., for appellee.
accordingly, must confine itself to the judicial task of saying what the [Argument of Counsel from pages 205-211 intentionally omitted]
law is, as enacted by the lawmaking body.281 Mr. Justice BUTLER delivered the opinion of the Court.
Be that as it may, it bears reiterating that the RH Law is a mere 1
compilation and enhancement of the prior existing contraceptive and Appellants brought this suit to enjoin the Attorney General of
reproductive health laws, but with coercive measures. Even if the Washington from enforcing the Anti-Alien Land Law of that state
Court decrees the RH Law as entirely unconstitutional, there will still (chapter 50, Laws 1921), on the grounds that it is in conflict with the
be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. due process and equal protection clauses of the Fourteenth
No. 4729) and the reproductive health for women or The Magna Amendment, with the treaty between the United States and Japan,
Carta of Women (R.A. No. 9710), sans the coercive provisions of the and with certain provisions of the Constitution of the state.
assailed legislation. All the same, the principle of "no-abortion" and 2
"non-coercion" in the adoption of any family planning method should The appellants are residents of Washington. The Terraces are
be maintained. citizens of the United States and of Washington. Nakatsuka was
WHEREFORE, the petitions are PARTIALLY GRANTED. born in Japan of Japanese parents and is a subject of the emperor
Accordingly, the Court declares R.A. No. 10354 as NOT of Japan. The Terraces are the owners of a tract of land in King
UNCONSTITUTIONAL except with respect to the following county which is particularly adapted to raising vegetables, and which
provisions which are declared UNCONSTITUTIONAL: for a number of years had been devoted to that and other
1) Section 7 and the corresponding provision in the RH- agricultural purposes. The complaint alleges that Nakatsuka is a
IRR insofar as they: a) require private health facilities and capable farmer and will be a desirable tenant of the land, that the
non-maternity specialty hospitals and hospitals owned and Terraces desire to lease their land to him for the period of five years,
operated by a religious group to refer patients, not in an that he desires to accept such lease, and that the lease would be
emergency or life-threatening case, as defined under made but for the act complained of; and it is alleged that the
Republic Act No. 8344, to another health facility which is defendant, as Attorney General, has threatened to and will take
conveniently accessible; and b) allow minor-parents or steps to enforce the act against the appellants if they enter into such
minors who have suffered a miscarriage access to modem lease, and will treat the leasehold interest as forfeited to the state,
methods of family planning without written consent from and will prosecute the appellants criminally for violation of the act;
their parents or guardian/s; that the act is so drastic and the penalties attached to its violation
2) Section 23(a)(l) and the corresponding provision in the are so great that neither of the appellants may make the lease even
RH-IRR, particularly Section 5 .24 thereof, insofar as they to test the constitutionality of the act; and that, unless the court shall
punish any healthcare service provider who fails and or determine its validity in this suit, the appellants will be compelled to
refuses to disseminate information regarding programs submit to it, whether valid or invalid, and thereby will be deprived of
and services on reproductive health regardless of his or their property without due process of law and denied the equal
her religious beliefs. protection of the laws.
3) Section 23(a)(2)(i) and the corresponding provision in 3
the RH-IRR insofar as they allow a married individual, not The Attorney General made a motion to dismiss the amended
in an emergency or life-threatening case, as defined under complaint upon the ground that it did not state any matters of equity
Republic Act No. 8344, to undergo reproductive health or facts sufficient to entitle the appellants to relief. The District Court
procedures without the consent of the spouse; granted the motion and entered a decree of dismissal on the merits.
4) Section 23(a)(2)(ii) and the corresponding provision in The case is here on appeal from that decree.
the RH-IRR insofar as they limit the requirement of 4
parental consent only to elective surgical procedures. Section 331 of article 2 of the Constitution of Washington prohibits
5) Section 23(a)(3) and the corresponding provision in the the ownership of land by aliens other than those who in good faith
RH-IRR, particularly Section 5.24 thereof, insofar as they have declared intention to become citizens of the United States,
punish any healthcare service provider who fails and/or except in certain instances not here involved. The act2 provides in
refuses to refer a patient not in an emergency or life- substance that any such alien shall not own, take, have or hold the
threatening case, as defined under Republic Act No. 8344, legal or equitable title, or right to any benefit of any land as defined
to another health care service provider within the same in the act, and that land conveyed to or for the use of aliens in
facility or one which is conveniently accessible regardless violation of the state constitution or of the act shall thereby be
of his or her religious beliefs; forfeited to the state, and it is made a gross misdemeanor,
6) Section 23(b) and the corresponding provision in the punishable by fine or imprisonment or both, knowingly to transfer
RH-IRR, particularly Section 5 .24 thereof, insofar as they land or the right to the control, possession or use of land to such an
punish any public officer who refuses to support alien. It is also made a gross misdemeanor for any such alien having
reproductive health programs or shall do any act that title to such land or the control, possession or use thereof, to refuse
hinders the full implementation of a reproductive health to disclose to the Attorney General or the prosecuting attorney the
program, regardless of his or her religious beliefs; nature and extent of his interest in the land. The Attorney General
7) Section 17 and the corresponding prov1s10n in the RH- and the prosecuting attorneys of the several counties are charged
IRR regarding the rendering of pro bona reproductive with the enforcement of the act.
health service in so far as they affect the conscientious 5
objector in securing PhilHealth accreditation; and 1. The Attorney General questions the jurisdiction of the court to
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, grant equitable relief even if the statute be unconstitutional. He
which added the qualifier "primarily" in defining contends that the appellants have a plain, adequate and speedy
abortifacients and contraceptives, as they are ultra vires remedy at law; that the case involves but a single transaction, and
and, therefore, null and void for contravening Section 4(a) that, if the proposed lease is made, the only remedy which the state
of the RH Law and violating Section 12, Article II of the has, so far as civil proceedings are concerned, is an escheat
Constitution. proceeding in which the validity of the law complained of may be
The Status Quo Ante Order issued by the Court on March 19, 2013 finally determined; that an acquittal of the Terraces of the criminal
as extended by its Order, dated July 16, 2013 , is hereby LIFTED, offense created by the statute would protect them from further
insofar as the provisions of R.A. No. 10354 which have been herein prosecution, and that Nakatsuka is liable criminally only upon his
declared as constitutional. failure to disclose the fact that he holds an interest in the land.
SO ORDERED. 6
TERRACE et al. v. THOMPSON, Attorney General of Washington. The unconstitutionality of a state law is not of itself ground for
 Supreme Court equitable relief in the courts of the United States. That a suit in
263 U.S. 197 equity does not lie where there is a plain adequate and complete
44 S.Ct. 15 remedy at law is so well understood as not to require the citation of
68 L.Ed. 255 authorities. But the legal remedy must be as complete, practical and
TERRACE et al. efficient as that which equity could afford. Boise Artesian Water Co.
v. v. Boise City, 213 U. S. 276, 281, 29 Sup. Ct. 426, 53 L. Ed. 796;
THOMPSON, Attorney General of Washington. Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 11, 12, 19 Sup.
No. 29. Ct. 77, 43 L. Ed. 341. Equity jurisdiction will be exercised to enjoin
Argued April 23, 24, 1923. the threatened enforcement of a state law which contravenes the
Decided Nov. 12, 1923. federal Constitution wherever it is essential in order effectually to
Mr. James B. Howe, of Seattle, Wash., for appellants. protect property rights and the rights of persons against injuries
otherwise irremediable; and in such a case a person, who is an
officer of the state is clothed with the duty of enforcing its laws and earn a living by following ordinary occupations of the community, but
who threatens and is about to commence proceedings, either civil or it does not take away from the state those powers of police that were
criminal, to enforce such a law against parties affected, may be reserved at the time of the adoption of the Constitution. Barbier v.
enjoined from such action by a Federal court of equity. Cavanaugh Connolly, 113 U. S. 27, 31, 5 Sup. Ct. 357, 28 L. Ed. 923; Mugler v.
v. Looney, 248 U. S. 453, 456, 39 Sup. Ct. 142, 63 L. Ed. 354; Truax Kansas, 123 U. S. 623, 663, 8 Sup. Ct. 273, 31 L. Ed. 205; Powell v.
v. Raich, 239 U. S. 33, 37, 38, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. Pennsylvania, 127 U. S. 678, 683, 8 Sup. Ct. 992, 1257, 32 L. Ed.
1916D, 545, Ann. Cas. 1917B, 283. See also Ex parte Young, 209 253; In re Kemmler, 136 U. S. 436, 449, 10 Sup. Ct. 930, 34 L. Ed.
U. S. 123, 155, 162, 28 Sup. Ct. 441, 52 L. Ed. 714, 13 L. R. A. (N. 519; Lawton v. Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499, 38 L.
S.) 932, 14 Ann. Cas. 764; Adams v. Tanner, 244 U. S. 590, 592, 37 Ed. 385; Phillips v. Mobile, 208 U. S. 472, 479, 28 Sup. Ct. 370, 52
Sup. Ct. 662, 61 L. Ed. 1336, L. R. A. 1917F, 1163, Ann. Cas. L. Ed. 578; Hendrick v. Maryland, 235 U. S. 610, 622, 623, 35 Sup.
1917D, 973; Greene v. Louisville & Interurban Railroad Co., 244 U. Ct. 140, 59 L. Ed. 385. And in the exercise of such powers the state
S. 499, 506, 37 Sup. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; has wide discretion in determining its own public policy and what
Home Telephone & Telegraph Co. v. Los Angeles, 227 U. S. measures are necessary for its own protection and properly to
278, 293, 33 Sup. Ct. 312, 57 L. Ed. 510; Philadelphia Co. v. promote the safety, peace and good order of its people.
Stimson, 223 U. S. 605, 621, 32 Sup. Ct. 340, 56 L. Ed. 570; 11
Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 30 Sup. And, while Congress has exclusive jurisdiction over immigration,
Ct. 286, 54 L. Ed. 430; Dobbins v. Los Angeles, 195 U. S. 223, 241, naturalization and the disposal of the public domain, each state, in
25 Sup. Ct. 18, 49 L. Ed. 169; Davis & Farnum Mfg. Co. v. Los the absence of any treaty provision to the contrary, has power to
Angeles, 189 U. S. 207, 217, 23 Sup. Ct. 498, 47 L. Ed. 778. deny to aliens the right to own land within its borders. Hauenstein v.
7 Lynham, 100 U. S. 483, 484, 488, 25 L. Ed. 628; Blythe v.
The Terraces' property rights in the land include the right to use, Hinckley, 180 U. S. 333, 340, 21 Sup. Ct. 390, 45 L. Ed. 557; Mr.
lease and dispose of it for lawful purposes (Buchanan v. Warley, 245 Justice Field, speaking for this court (Phillips v. Moore, 100 U. S.
U. S. 60, 74, 38 Sup. Ct. 16, 62 L. Ed. 149, L. R. A. 1918C, 210, 208, at page 212, 25 L. Ed. 603), said:
Ann. Cas. 1918A, 1201), and the Constitution protects these 12
essential attributes of property (Holden v. Hardy, 169 U. S. 366, 391, 'By the common law, an alien cannot acquire real property by
18 Sup. Ct. 383, 42 L. Ed. 780), and also protects Nakatsuka in his operation of law, but may take it by act of the grantor, and hold it
right to earn a livelihood by following the ordinary occupations of life until office found; that is, until the fact of alienage is authoritatively
(Truax v. Raich, supra; Meyer v. State of Nebraska, 262 U. S. established by a public officer, upon an inquest held at the instance
390, 43 Sup. Ct. 625, 67 L. Ed. 1042). If, as claimed, the state act is of the government.'3
repugnant to the due process and equal protection clauses of 13
the Fourteenth Amendment, then its enforcement will deprive the State legislation applying alike and equally to all aliens, withholding
owners of their right to lease their land to Nakatsuka, and deprive from them the right to own land, cannot be said to be capricious or to
him of his right to pursue the occupation of farmer, and the threat to amount to an arbitrary deprivation of liberty or property, or to
enforce it constitutes a continuing unlawful restriction upon and transgress the due process clause.
infringement of the rights of appellants, as to which they have no 14
remedy at law which is as practical, efficient or adequate as the This brings us to a consideration of appellants' contention that the
remedy in equity. And assuming, as suggested by the Attorney act contravenes the equal protection clause. That clause secures
General, that after the making of the lease the validity of the law equal protection to all in the enjoyment of their rights under like
might be determined in proceedings to declare a forfeiture of the circumstances. In re Kemmler, supra; Giozza v. Tiernan, 148 U. S.
property to the state or in criminal proceedings to punish the owners, 657, 662, 13 Sup. Ct. 721, 37 L. Ed. 599. But this does not forbid
it does not follow that they may not appeal to equity for relief. No every distinction in the law of a state between citizens and aliens
action at law can be initiated against them until after the resident therein. In Truax v. Corrigan, 257 U. S. 312, at page 337, 42
consummation of the proposed lease. The threatened enforcement Sup. Ct. 124, at page 131 (66 L. Ed. 254), this court said:
of the law deters them. In order to obtain a remedy at law, the 15
owners, even if they would take the risk of fine, imprisonment and 'In adjusting legislation to the need of the people of a state, the
loss of property must continue to suffer deprivation of their right to legislature has a wide discretion and it may be fully conceded that
dispose of or lease their land to any such alien until one is found perfect uniformity of treatment of all persons is neither practical nor
who will join them in violating the terms of the enactment and take desirable, that classification of persons is constantly necessary. * * *
the risk of forfeiture. Similarly Nakatsuka must continue to be Classification is the most inveterate of our reasoning processes. We
deprived of his right to follow his occupation as farmer until a land can scarcely think or speak without consciously or unconsciously
owner is found who is willing to make a forbidden transfer of land exercising it. It must therefore obtain in and determine legislation;
and take the risk of punishment. The owners have an interest in the but it must regard real resemblances and real differences between
freedom of the alien, and he has an interest in their freedom, to things, and persons, and class them in accordance with thier
make the lease. The state act purports to operate directly upon the pertinence to the purpose in hand.'
consummation of the proposed transaction between them, and the 16
threat and purpose of the Attorney General to enforce the The rights, privileges and duties of aliens differ widely from those of
punishments and forfeiture prescribed prevents each from dealing citizens; and those of alien declarants differ substantially from those
with the other. Truax v. Raich, supra. They are not obliged to take of nondeclarants. Formerly in many of the states the right to vote
the risk of prosecution, fines and imprisonment and loss of property and hold office was extended to declarants, and many important
in order to secure an adjudication of their rights. The complaint offices have been held by them. But these rights have not been
presents a case in which equitable relief may be had, if the law granted to nondeclarants. By various acts of Congress,4 declarants
complained of is shown to be in contravention of the federal have been made liable to military duty, but no act has imposed that
Constitution. duty on nondeclarants. The fourth paragraph of article 1 of the treaty
8 (37 Stat. 1504), invoked by the appellants, provides that the citizens
2. Is the act repugnant to the due process clause or the equal or subjects of each shall be exempt in the territories of the other from
protection clause of the Fourteenth Amendment? compulsory military service either on land or sea, in the regular
9 forces, or in the national guard, or in the militia; also from all
Appellants contend that the act contravenes the due process clause contributions imposed in lieu of personal service, and from all forced
in that it prohibits the owners from making lawful disposition or use loans or military exactions or contributions. The alien's formally
of their land, and makes it a criminal offense for them to lease it to declared bona fide intention to renounce forever all allegiance and
the alien, and prohibits him from following the occupation of farmer; fidelity to the sovereignty to which he lately has been a subject, and
and they contend that it is repugnant to the equal protection clause to become a citizen of the United States and permanently reside
in that aliens are divided into two classes,—those who may and therein5 markedly distinguishes him from an ineligible alien or an
those who may not become citizens, one class being permitted, eligible alien who has not so declared.
while the other is forbidden, to own and as defined. 17
10 By the statute in question all aliens who have not in good faith
Alien inhabitants of a state, as well as all other persons within its declared intention to become citizens of the United States, as
jurisdiction, may invoke the protection of these clauses. Yick Wo v. specified in section 1(a), are called 'aliens,' and it is provided that
Hopkins, 118 U. S. 356, 369, 6 Sup. Ct. 1064, 30 L. Ed. 220; Truax they shall not 'own' 'land,' as defined in clauses (d) and (b) of section
v. Raich, supra, 239 U. S. 39, 36 Sup. Ct. 7, 60 L. Ed. 131, L. R. A. 1 respectively. The class so created includes all, but is not limited to,
1916D, 545 Ann. Cas. 1917B, 283. The Fourteenth Amendment, as aliens not eligible to become citizens. Eligible aliens who have not
against the arbitrary and capricious or unjustly discriminatory action declared their intention to become citizens are included, and the act
of the state, protects the owners in their right to lease and dispose of provides that unless declarants be admitted to citizenship within
their land for lawful purposes and the alien resident in his right to seven years after the declaration is made, bad faith will be
presumed. This leaves the class permitted so to own land made up houses, manufactories, warehouses and shops, to employ agents of
of citizens and aliens who may, and who intend to, become citizens, their choice, to lease land for residential and commercial purposes,
and who in good faith have made the declaration required by the and generally to do anything incident to or necessary for trade upon
naturalization laws. The inclusion of good faith declarants in the the same terms as native citizens or subjects, submitting themselves
same class with citizens does not unjustly discriminate against aliens to the laws and regulations there established.'
who are ineligible or against eligible aliens who have failed to 27
declare their intention. The classification is based on eligibility and For the purpose of bringing Nakatsuka within the protection of the
purpose to naturalize. Eligible aliens are free white persons and treaty, the amended complaint alleges that, in addition to being a
persons of African nativity or descent.6 Congress is not trammeled, capable farmer, he is engaged in the business of trading, wholesale
and it may grant or withhold the privilege of naturalization upon any and retail, in farm products and shipping the same in intrastate,
grounds or without any reason, as it sees fit. But it is not to be interstate and foreign commerce, and, instead of purchasing such
supposed that its acts defining eligibility are arbitrary or unsupported farm products, he has produced, and desires to continue to produce,
by reasonable consideration of public policy. his own farm products for the purpose of selling them in such
18 wholesale and retail trade, and if he is prevented from leasing land
The state properly may assume that the considerations upon which for the purpose of producing farm products for such trade he will be
Congress made such classification are substantial and reasonable. prevented from engaging in trade and the incidents to trade, as he is
Generally speaking, the natives of European countries are eligible. authorized to do under the treaty.
Japanese, Chinese and Malays are not. Appellants' contention that 28
the state act discriminates arbitrarily against Nakatsuka and other To prevail on this point, appellants must show conflict between the
ineligible aliens because of their race and color is without foundation. state act and the treaty. Each state, in the absence of any treaty
All persons of whatever color or race who have not declared their provision conferring the right may enact laws prohibiting aliens from
intention in good faith to become citizens are prohibited from so owning land within its borders. Unless the right to own or lease land
owning agricultural lands. Two classes of aliens inevitably result is given by the treaty, no question of conflict can arise. We think that
from the naturalization laws those who may and those who may not the treaty not only contains no provision giving Japanese the right to
become citizens. The rule established by Congress on this subject, own or lease land for agricultural purposes, but, when viewed in the
in and of itself, furnishes a reasonable basis for classification in a light of the negotiations leading up to its consummation, the
state law withholding from aliens the privilege of land ownership as language shows that the high contracting parties respectively
defined in the act. We agree with the court below (274 Fed. 841, intended to withhold a treaty grant of that right to the citizens or
846) that: subjects of either in the territories of the other. The right to 'carry on
19 trade' or 'to own or lease and occupy houses, manufactories,
'It is obvious that one who is not a citizen and cannot become one warehouses and shops,' or 'to lease land for residential and
lacks an interest in, and the power to effectually work for the welfare commercial purposes,' or 'to do anything incident to or necessary for
of, the state, and, so lacking, the state may rightfully deny him the trade' cannot be said to include the right to own or lease or to have
right to own and lease real estate within its boundaries. If one any title to or interest in land for agricultural purposes. The
incapable of citizenship may lease or own real estate, it is within the enumeration of rights to own or lease for other specified purposes
realm of possibility that every foot of land within the state might pass impliedly negatives the right to own or lease land for these purposes.
to the ownership or possession of noncitizens.' A careful reading of the treaty suffices in our opinion to negative the
20 claim asserted by appellant that it conflicts with the state act.
And we think it is clearly within the power of the state to include 29
nondeclarant eligible aliens and ineligible aliens in the same But if the language left the meaning of its provisions doubtful or
prohibited class. Reasons supporting discrimination against aliens obscure, the circumstances of the making of the treaty, as set forth
who may but who will not naturalize are obvious. in the opinion of the District Court (supra, 274 Fed. 844, 845), would
21 resolve all doubts against the appellants' contention. The letter of
Truax v. Raich, supra, does not support the appellants' contention. Secretary of State Bryan to Viscount Chinda, July 16, 1913, shows
In that case the court held to be repugnant to the Fourteenth that, in accordance with the desire of Japan, the right to own land
Amendment an act of the Legislature of Arizona making it a criminal was not conferred. And it appears that the right to lease land for
offense for an employer of more than five workers at any one time, other than residential and commercial purposes was deliberately
regardless of kind or class of work, or sex of workers, to employ less withheld by substituting the words of the treaty, 'to lease land for
than 80 per cent. qualified electors or native-born citizens of the residential and commercial purposes,' for a more comprehensive
United States. In the opinion it was pointed out that the legislation clause contained in an earlier draft of the instrument, namely, 'to
there in question did not relate to the devolution of real property, but lease land for residential, commercial, industrial, manufacturing and
that the discrimination was imposed upon the conduct of ordinary other lawful purposes.'
private enterprise covering the entire field of industry with the 30
exception of enterprises that were relatively very small. It was said 4. The act complained of is not repugnant to section 33 of article 2 of
that the right to work for a living in the common occupations of the the state Constitution.
community is a part of the freedom which it was the purpose of 31
the Fourteenth Amendment to secure. That section provides that 'the ownership of lands by aliens * * * is
22 prohibited in this state. * * *' Appellants assert that the proposed
In the case before us, the thing forbidden is very different. It is not an lease of farm land for five years is not 'ownership,' and is not
opportunity to earn a living in common occupations of the prohibited by that clause of the state Constitution and cannot be
community, but it is the privilege of owning or controlling agricultural forbidden by the state Legislature. That position is untenable. In
land within the state. The quality and allegiance of those who own, State v. O'Connell, 121 Wash. 542, 209 Pac. 865, a suit for the
occupy and use the farm lands within its borders are matters of purpose of escheating to the state an undivided one-half interest in
highest importance and affect the safety and power of the state land, or the proceeds thereof, held in trust for the benefit of an alien,
itself. a subject of the British empire, decided since this appeal was taken,
23 the Supreme Court of Washington held that the statute in question
The Terraces, who are citizens, have no right safeguarded by did not contravene this provision of the Constitution of that state. The
the Fourteenth Amendment to lease their land to aliens lawfully question whether or not a state statute conflicts with the Constitution
forbidden to take or have such lease. The state act is not repugnant of the state is settled by the decision of its highest court. Carstairs v.
to the equal protection clause and does not contravene Cochran, 193 U. S. 10, 16, 24 Sup. Ct. 318, 48 L. Ed. 596. This
the Fourteenth Amendment. court 'is without authority to review and revise the construction
24 affixed to a state statute as to a state matter by the court of last
3. The state act, in our opinion, is not in conflict with the resort of the state.' Quong Ham Wah Co. v. Industrial
treaty7 between the United States and Japan. The preamble Commission, 255 U. S. 445, 448, 41 Sup. Ct. 373, 374 (65 L. Ed.
declares it to be 'a treaty of commerce and navigation,' and indicates 723), and cases cited.
that it was entered into for the purpose of establishing the rules to 32
govern commercial intercourse between the countries. The decree of the District Court is affirmed.
25 33
The only provision that relates to owning or leasing land is in the first Mr. Justice McREYNOLDS and Mr. Justice BRANDEIS think there is
paragraph of article 1, which is as follows: no justiciable question involved and that the case should have been
26 dismissed on that ground.
'The citizens or subjects of each of the high contracting parties shall 34
have liberty to enter, travel and reside in the territories of the other to Mr. Justice SUTHERLAND took no part in the consideration or
carry on trade, wholesale and retail, to own or lease and occupy decision of this case.
1
Section 33. The ownership of lands by aliens, other than those who
in good faith have declared their intention to become citizens of the
United States, is prohibited in this state, except where acquired by
inheritance, under mortgage or in good faith in the ordinary course of
justice in the collection of debts; and all conveyances of lands
hereafter made to any alien directly or in trust for such alien, shall be
void: Provided, that the provisions of this section shall not apply to
lands containing valuable deposits of minerals, metals, iron, coal, or
fire clay, and the necessary land for mills and machinery to be used
in the development thereof and the manufacture of the products
therefrom. Every corporation, the majority of the capital stock of
which is owned by aliens, shall be considered an alien for the
purposes of this prohibition.
2
Section 1. In this act, unless the context otherwise requires.
(a) 'Alien' does not include an alien who has in good faith declared
his intention to become a citizen of the United States, but does
include all other aliens and all corporations and other organized
groups of persons a majority of whose capital stock is owned or
controlled by aliens or a majority of whose members are aliens;
(b) 'Land' does not include lands containing valuable deposits of
minerals, metals, iron, coal or fire clay or the necessary land for mills
and machinery to be used in the development thereof and the
manufacture of the products therefrom, but does include every other
kind of land and every interest therein and right to the control,
possession, use, enjoyment, rents, issues or profits thereof. * * *
(d) To 'own' means to have the legal or equitable title to or the right
to any benefit of;
(e) 'Title' includes every kind of legal or equitable title. * * *
Section 2. An alien shall not own land or take or hold title thereto. No
person shall take or hold land or title to land for an alien. Land now
held by or for aliens in violation of the constitution of the state is
forfeited to and declared to be the property of the state. Land
hereafter conveyed to or for the use of aliens in violation of the
constitution or of this act shall thereby be forfeited to and become
the property of the state.
3
In Fairfax's Devisee v. Hunter's Lessee, 7 Cranch, 603, 609, 619,
620 (3 L. Ed. 453), it was said, per Story, J.: 'It is clear by the
common law, that an alien can take lands by purchase, though not
by descent; or in other words he cannot take by the act of law, but
he may by the act of the party. * * * In the language of the ancient
law, the alien has the capacity to take, but not to hold lands, and
they may be seized into the hands of the sovereign.' See also 1
Cooley's Blackstone (4th Ed.) 315, *372; 2 Kent's Commentaries
(14th Ed.) 80, *54.
4
Act March 3, 1863, c. 75, 12 Stat. 731; Act April 22, 1898, c. 187, 30
Stat. 361 (Comp. St. §§ 1714, 1715, 1716); Act Jan. 21, 1903, c.
196, 32 Stat. 775; Act June 3, 1916, c. 134, §§ 57, 111, 39 Stat.
197 (Comp. St. §§ 3041, 3045); Act May 18, 1917, c. 15, § 2, 40
Stat. 76 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 2044b); Act
July 9, 1918, c. 143, 40 Stat. 884 (Comp. St. Ann. Supp. 1919, §
2044 1/4 a-2044 1/4 c); Act Aug. 31, 1918, c. 166, 40 Stat. 955.
5
Act June 29, 1906, c. 3592, 34 Stat. 596, as amended, Act June 25,
1910, c. 401, 36 Stat. 829.
6
Act July 14, 1870, c. 254, § 7, 16 Stat. 256, as amended, Act Feb.
18, 1875, c. 80, 18 Stat. 318 (Comp. St. § 4358); Ozawa v. United
States, 260 U. S. 178, 43 Sup. Ct. 65, 67 L. Ed. 199; United States
v. Thind, 261 U. S. 204, 43 Sup. Ct. 338, 67 L. Ed. 616.
7
37 Stat. 1504-1509.