Petition for a writ of habeas corpus and mandamus seeking the following relief:

"WHEREFORE, petitioners pray this Honorable Court:

"1. To immediately issue a writ of habeas corpus directing respondents to appear and produce the bodies of DRA. AURORA PARONG, NORBERTO PORTUGUESE, SABINO PADILLA, FRANCIS DIVINAGRACIA, IMELDA DE LOS SANTOS, BENJAMIN PINEDA, ZENAIDA MALLARI, MARIANO SORIANO, TITO TANGUILIG, LETTY BALLOGAN, BIENVENIDA GARCIA, EUFRONIO ORTIZ, JR., JUANITO GRANADA and TOM VASQUEZ, forthwith before this Honorable Court and to make due return of the writ therewith;

"2. To issue, in addition or in the alternative to the writ of habeas corpus, a writ of mandamus compelling the respondents to disclose the petitioners' present place of detention and to order the respondents to allow counsel and relatives to visit and confer with the petitioners;

"3. Pending the determination of the legality of their continued detention, to forthwith release the detainees on bail upon such terms and conditions as the Court may fix, and after hearing, to order petitioners' immediate release; and

"4. To grant petitioners such other and further relief as may be deemed just and equitable in the premises."

The records show that nine (9) of the fourteen (14) detainees herein were arrested on July 6, 1982 at about 1:45 p.m. when three (3) teams of the PC/INP of Bayombong, Nueva Viscaya led by Lt. Col. Coronel, 1st Lt. de Guzman and 1st Lt. Baria, after securing a Search Warrant No. S-82 issued by Judge Sofronio Sayo of the Court of First Instance of Nueva Viscaya conducted a raid at the residence of Dra. Aurora Parong. Apprehended during the said raid were Dra. Aurora Parong, Benjamin Pineda, Sabino Padilla, Francisco Divinagracia, Zenaida Mallari, Letty Ballogan, Norberto Portuguese, and Mariano Soriano who were then having a conference in the dining room of Dra. Parong's residence which had been going on since 10:00 a.m. of that same day.

The other four (4) detainees herein, namely: Imelda de los Santos, Eufronio Ortiz, Jr., Juanito Granada, and Bienvenida Garcia, were arrested on the following day, July 7, 1982 by the same PC teams.

On July 15, 1982, Tom Vasquez was arrested, and his Volkswagen car, bearing Plate No. DAP 347, was seized by the PC authorities.

The herein fourteen (14) detainees (hereafter referred to sometimes as petitioners) were all detained at the PC/INP Command Headquarters, Bayombong, Nueva Viscaya from July 6, 1982 until their transfer on the morning of August 10, 1982 to an undisclosed place reportedly to Camp Crame, Quezon City, to Echague, Isabela, and to Tuguegarao, Cagayan.

Hence, this petition for the writ of habeas corpus and mandamus filed by Josefina Garcia-Padilla, mother of detained petitioner Sabino G. Padilla, Jr. on August 13, 1982. The mandamus aspect of the instant petition has, however, become moot and academic, the whereabouts of petitioners having already become known to petitioner Josefina Garcia-Padilla.

It is alleged in the petition that the arrest of petitioners was patently unlawful and illegal since it was effected without any warrant of arrest; that the PC/INP raiding team which made the arrest were only armed with a search warrant (No. 3-82) issued by Judge Sofronio G. Sayo of the Court of First Instance of Nueva Viscaya, and nowhere in said warrant was authority given to make arrests, much less detention; that the search warrant which authorized respondents to seize "subversive documents, firearms of assorted calibers, medicine and other subversive paraphernalia" in the house and clinic of Dra. Aurora Parong was a roving and general warrant and is, therefore, illegal per se because it does not state specifically the things that are to be seized (Stonehill vs. Diokno, 20 SCRA 383); that no criminal charges have as of yet been filed against any of the detainees; that the fourteen (14) detainees were initially held at the PC/INP Command in Bayombong, Nueva Viscaya from July 6 up to August 10, 1982, but were subsequently transferred by helicopter in the morning of August 10, 1982 to a place or safehouse known only to respondents; that there is no judgment, decree, decision or order from a court of law which would validate the continued detention of the petitioner; that while it is true that a purported telegram stating the issuance of a Presidential Commitment Order (PCO) was shown to the detainees on or about July 11 and 12, 1982, but counsel and the detainees have not yet been given a copy of such PCO, nor notified of its contents, raising a doubt whether such commitment order has in fact been issued.

It is further alleged that respondents are denying the detainees their constitutional right to counsel, averring that the detainees were allowed regular visits by counsel and relatives during their period of detention from July 6 to August 10, 1982 at the PC/INP Command in Bayombong, Nueva Viscaya; however, when a certain Major Cristobal and Lt. Marcos (alleged to be from the Camp Crame Intelligence Units) took full control of the investigation, counsels were allowed to visit only on weekends; that when the detainees were transferred on August 10, 1982 to a place known only to respondents, the detainees' counsels and relatives were not notified, raising the apprehension that petitioners' constitutional rights to silence, to counsel and against self-incrimination are being violated; that counsels have tried to locate if the detainees were taken to Camp Crame or Camp Bago Bantay but to no avail; that Major Foronda of the PC Command in Nueva Viscaya informed Mrs. Josefina Padilla that the detainees were transferred to Tuguegarao, Cagayan, others to Echague, Isabela; that there seems to be a deliberate and concerted effort by respondents to conceal from counsel and relatives the detainees' place of detention, raising the apprehension that respondents are using force, violence, threat, intimidation and other means which vitiate free will to obtain confession and statements from the detainees in violation of their constitutional rights.

In the resolution of this Court en banc dated August 17, 1982, the writ of habeas corpus was issued and respondents were required to make a return of the writ. Hearing on the petition was set on August 26, 1982.

In the return to the writ filed on August 23, 1982, respondents, through the Solicitor General, alleged, to wit:

"I. AS TO HABEAS CORPUS

"1. The detainees mentioned in the petition, with the exception of Tom Vasquez who was temporarily released on July 17, 1982, after his arrest on July 15, 1982, are all being detained by virtue of a Presidential Commitment Order (PCO) issued on July 12, 1982, pursuant to LOI No. 1211 dated March 9, 1982, in relation to Presidential Proclamation No. 2045 dated January 17, 1981. The said PCO was issued by President Ferdinand E. Marcos for violation of P.D. No. 885 . . ..

"2. The corresponding charges against the said detainees have been filed in court and before the Acting Provincial Fiscal of Nueva Viscaya where they are pleading. A warrant of arrest against detainee Dra. Aurora Parong was issued on August 4, 1982, by the Municipal Court of Bayombong, for illegal possession of firearm and ammunition . . .."

"II. AFFIRMATIVE DEFENSE ON HABEAS CORPUS

"3. The persons named in the above-mentioned Presidential Commitment Order were arrested and are being detained for offenses with respect to which under Proclamation No. 2045, the privilege of the writ of habeas corpus continues to be suspended, thus:

'NOW, THEREFORE, I, FERDINAND E. MARCOS, President/Prime Minister of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby revoke Proclamation No. 1081 (Proclaiming a state of Martial Law in the Philippines) and Proclamation No. 1104 (Declaring the Continuation of Martial Law) and proclaim the termination of the state of martial law throughout the Philippines; Provided, that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence, insurrection, rebellion and subversion shall continue to be in force and effect; and Provided that in the two autonomous regions in Mindanao, upon the request of the residents therein, the suspension of the privilege of the writ of habeas corpus shall continue; and in all other places the suspension of the privilege of the writ shall also continue with respect to persons at present detained as well as others who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or proposals to commit such crimes, and for all other crimes and offenses committed by them in furtherance or on the occasion thereof, or incident thereto, or in connection therewith.' (Italics supplied)

The privilege of the writ of habeas corpus is unavailing as to them. Courts cannot inquire into the validity and cause of their arrest and detention.

"4. The power of the President in an emergency, such as that which necessitated the continued suspension of the privilege of the writ of habeas corpus, to order the detention of persons believed engaged in crimes related to national security is recognized. (Aquino vs. Enrile, 59 SCRA 83; Luneta, et al. vs. Special Military Commission No. 1, et al., 102 SCRA 56).

"5. In the instant petition, petitioner Josefina Garcia Padilla does not appear to have been authorized by the thirteen (13) other detainees to represent them in the case at bar."

Accordingly, the petition was duly heard on August 26, 1982. After hearing, the Court issued the following resolution, to wit:

"G.R. No. 61388 (In the Matter of the Petition for the Insurance of the Writ of Habeas Corpus of Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr., Juanito Granada and Tom Vasquez; Josefina Garcia-Padilla vs. Minister Juan Ponce Enrile, Gen. Fabian C. Ver, Gen. Fidel V. Ramos and Lt. Col. Miguel Coronel.) The return of the writ of habeas corpus and answer to the prayer for mandamus filed by the Solicitor General for respondents in compliance with the resolution of August 17, 1982 is NOTED.

"At the hearing of this case this morning, former Senator Jose W. Diokno, Attorneys Alexander A. Padilla and Efren H. Mercado appeared for petitioner. Solicitor General Estelito P. Mendoza and Assistant Solicitor General Ramon A. Barcelona, appeared for the respondents. All of the detainees, except Tom Vasquez, who was temporarily released on July 17, 1982, were present in Court; Dr. Aurora Parong, Norberto Portuguese, Sabino Padilla, Francis Divinagracia, Imelda de los Santos, Benjamin Pineda, Zenaida Mallari, Mariano Soriano, Tito Tanguilig, Letty Ballogan, Bienvenida Garcia, Eufronio Ortiz, Jr. and Juanito Granada. Attorney Alexander A. Padilla argued for the petitioner. Solicitor General Mendoza argued for the respondents. Former Senator Diokno argued in the rebuttal. The Court Resolved to require the Solicitor General to SUBMIT within five (5) days from date the documents relevant to the issuance of the Presidential Commitment Order. Thereafter, the case shall be considered SUBMITTED for resolution."

As required, the Solicitor General submitted the documents relevant to the issuance of the Presidential Commitment Order on August 27, 1982, after which the case was submitted for resolution.

The fundamental issue here, as in all petitions for the writ of habeas corpus, is whether or not petitioners' detention is legal. We have carefully gone over the claims of the parties in their respective pleadings as well as in the oral argument during the hearing on August 26, 1982, and We find that petitioners have not been illegally deprived of their constitutional right to liberty, neither in the manner of their arrest, nor by their continued detention, and that the circumstances attendant in the herein case do not warrant their release on a writ of habeas corpus.

1. At the time of the arrest of the nine (9) of the fourteen (14) detainees herein on July 6, 1982, records reveal that they were then having conference in the dining room of Dra. Parong's residence from 10:00 a.m. of that same day. Prior thereto, all the fourteen (14) detainees were under surveillance as they were then identified as members of the Communist Party of the Philippines (CCP) engaging in subversive activities and using the house of detainee Dra. Aurora Parong in Bayombong, Nueva Viscaya, as their headquarters. Caught in flagrante delicto, the nine (9) detainees mentioned scampered towards different directions leaving on top of their conference table numerous subversive documents, periodicals, pamphlets, books, correspondence, stationaries, and other papers, including a plan on how they would infiltrate the youth and student sector (code-named YORK). Also found were one (1) .38 cal. revolver with eight (8) live bullets, nineteen (19) rounds of ammunition for M16 armalite, eighteen thousand six hundred fifty pesos (P18,650.00) cash believed to be CPP/NPA funds, assorted medicine packed and ready for distribution, and sizeable quantity of printing paraphernalia, which were then seized. There is no doubt that circumstances attendant in the arrest of the herein detainees fall under a situation where arrest is lawful even without a judicial warrant as specifically provided for under Section 6(a), Rules 113 of the Rules of Court and allowed under existing jurisprudence on the matter. As provided therein, a peace officer or a private person may, without a warrant, arrest a person when the person to be arrested has committed or actually committing, or is about to commit an offense in his presence.

From the facts as above narrated, the claim of the petitioners that they were initially arrested illegally is, therefore, without basis in law and in fact. The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. Clearly then, the arrest of the herein detainees was well within the bounds of the law and existing jurisprudence in our jurisdiction.

2. The arrest of persons involved in the rebellion whether as its fighting armed elements, or for committing non-violent acts but in furtherance of the rebellion, is more an act of capturing them in the course of an armed conflict, to quell the rebellion, than for the purpose of immediately prosecuting them in court for a statutory offense. The arrest, therefore, need not follow the usual procedure in the prosecution of offenses which requires the determination by a judge of the existence of probable cause before the issuance of a judicial warrant of arrest and the granting of bail if the offense is bailable. Obviously, the absence of a judicial warrant is no legal impediment to arresting or capturing persons committing overt acts of violence against government forces, or any other milder acts but equally in pursuance of the rebellious movement. The arrest or capture is thus impelled by the exigencies of the situation that involves the very survival of society and its government and duly constituted authorities. If killing and other acts of violence against the rebels find justification in the exigencies of armed hostilities which is of the essence of waging a rebellion or insurrection, most assuredly so in case of invasion, merely seizing their persons and detaining them while any of these contingencies continues cannot be less justified. In the language of Moyer vs. Peabody,^[1] cited with approval in Aquino, et al. vs. Ponce Enrile,^[2] the President "shall make the ordinary use of the soldiers to that end that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace. Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power."

Thus characterized, the arrest and detention of persons ordered by the President through the issuance of Presidential Commitment Order (PCO) is merely preventive. "When it comes to a decision by the head of the State upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of executive process for judicial process."^[3] What should be underscored is that if the greater violation against life itself such as killing, will not be the subject of judicial inquiry, as it cannot be raised as transgressing against the due process clause that protects life, liberty and property, lesser violations against liberty, such as arrest and detention, may not be insisted upon as reviewable by the courts.

3. Transcendentally important, therefore, is the question of whether the issuance of a Presidential Commitment Order (PCO) has provided the legal basis of the detention of herein detainees following their arrest for Proclamation No. 2045 covered offenses. This question has to be set at rest promptly and decisively, if We are to break a seemingly continuous flow of petitions for habeas corpus, as what had been seen lately of such petitions being filed in this Court one after the other.

The function of the PCO is to validate, on constitutional ground, the detention of a person for any of the offenses covered by Proclamation No. 2045 which continues in force the suspension of the privilege of the writ of habeas corpus, if the arrest has been made initially without any warrant. Its legal effect is to render the writ unavailing as a means of judicially inquiring into the legality of the detention in view of the suspension of the privilege of the writ. The grant of the power to suspend the said privilege provides the basis for continuing with perfect legality the detention as long as the invasion or rebellion has not been repelled or quelled, and the need therefor in the interest of public safety continues.

The significance of the conferment of this power, constitutionally upon the President as Commander-in-Chief, is that the exercise thereof is not subject to judicial inquiry, with a view to determining its legality in the light of the bill of rights guarantee to individual freedom. This must be so because the suspension of the privilege is a military measure the necessity of which the President alone may determine as an incident of his grave responsibility as the Commander-in-Chief of the Armed Forces, of protecting not only public safety but the very life of the State, the government and duly constituted authorities. This should be clear beyond doubt in the case of "invasion," along which "rebellion" or "insurrection" is mentioned by the Constitution, which contingency does not present a legal question on whether there is a violation of the right to personal liberty when any member of the invading force is captured and detained.

The presidential responsibility is one attended with all urgency when so grave a peril to the life of the Nation besets the country in times of the aforementioned contingencies. In the discharge of this awesome and sacred responsibility, the President should be free from interference. The existence of warlike conditions as are created by invasion, rebellion or insurrection, the direst of all emergencies that can possibly confront a nation, argues, beyond dispute, against subjecting his actions in this regard to judicial inquiry or interference from whatever source. If freedom from judicial review is conceded in the exercise of his peacetime powers as that of appointment and of granting pardon, denominated as political powers of the President, it should incontestably be more so with his wartime power, as it were, to adopt any measure in dealing with situations calling for military action as in case of invasion, rebellion or insurrection.

The suspension of the privilege of the writ of habeas corpus is one such measure. To be effective, the occasion for its application on specific individuals should be left to the exclusive and sound judgment of the President, at least while the exigencies of invasion, rebellion or insurrection persist, and the public safety requires it, a matter, likewise, which should be left for the sole determination of the President as Commander-in-Chief of the Nation's armed forces. The need for a unified command in such contingencies is imperative--even axiomatic--as a basic military concept in the art of warfare.

4. From the clear language of the Lansang case,^[4] "the function of the Court is merely to check--not to supplant--the Executive, or to ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the wisdom of his act." If, however, the constitutional right to bail is granted to the herein petitioners by the court, through the procedure laid down under Rule 114 of the Rules of Court, what inevitably results is the supplanting of the decision of the President to detain pursuant to Proclamation No. 2045, of persons who come under its coverage.

The specific mention in the Constitution of rebellion and insurrection along with invasion and imminent danger thereof, shows that the terms "rebellion and insurrection" are used therein in the sense of a state or condition of the Nation, not in the concept of a statutory offense. What, therefore, should determine the legality of imposing what is commonly referred to as "preventive detention" resulting from the suspension of the privilege of habeas corpus, is the necessity of its adoption as a measure to suppress or quell the rebellion, or beat off an invasion. The necessity for such measure as a means of defense for national survival quite clearly transcends in importance and urgency the claim of those detained to the right to bail to obtain their freedom. To hold otherwise would defeat the purpose of the constitutional grant of the power to suspend the privilege of the writ of habeas corpus on the occassions expressly mentioned in the charter. For what indeed could the purpose be of suspending the privilege of the writ of habeas corpus other than to restrict, at least for the duration of the emergency of invasion or rebellion, the right to personal liberty, dictated as it is, in the greater interest of public safety and national security.

So it is that Proclamation No. 2045 mentions not only rebellion or insurrection as coming within the suspension of the privilege of the writ of habeas corpus, but also other offenses, including subversion which is not mentioned in the Constitution, committed by reason or on the occasion of the rebellion, or in connection therewith, or in the furtherance thereof. There need be no alarm over what libertarian jurists fear as violation of the constitutional right to personal liberty when the President decrees the suspension of the privilege of habeas corpus. Only those who give cause for it will be subject to restriction of their liberty, as the necessity therefor arises in the interest of national defense and survival. The constitutional guarantee of individual freedom is intact in all its plenitude and sanctity, save only as the Constitution has envisioned the need for its limitation, and only to a few, in relation to the entire population, as the Constitution itself permits in case of overwhelming and imperious necessity.

5. Worthy of profound notice and keen appreciation is the fact that the authority to suspend the privilege of the writ of habeas corpus has been deliberately vested on the President as the Commander-in-Chief of the armed forces, together with the related power to call out the armed forces to suppress lawless violence and impose martial law.^[5] The choice could not have been more wise and sound, for no other official may, with equal capability and fitness, be entrusted with the grave responsibility that goes with the grant of the authority. The legislature was considered in the alternative upon which to lodge the power, or to share in its exercise, but the distilled wisdom of the Constitutional Convention finally made its choice for the President alone.

As previously noted, "invasion" which is not a statutorily-defined offense and "imminent danger thereof" as mentioned in the Constitution indicate that "rebellion and insurrection" are also mentioned therein not in their concept as statutorily-defined public crimes, but as a state or condition of extreme emergency resulting from the existence of the aforesaid events. Now, if captured enemies from the invading force may not be charged with any statutory offense that would provide the occasion to demand the right to bail, it is obvious that persons engaged in rebellion or insurrection may not claim the right to be released on bail when similarly captured or arrested during the continuance of the aforesaid contingency. They may not even claim the right to be charged immediately in court, as they may rightfully do so, were they being charged with an ordinary or common offense. This is so because according to legal writers or publicists, the suspension of the privilege of the writ of habeas corpus "has the sole effect of allowing the executive to defer the trials of persons charged with certain offenses during the period of emergency."^[6] This clearly means denial of the right to be released on bail on being charged in court with bailable offenses.

The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection.

Realistically, a person engaged in the rebellion does not, upon being arrested or captured, cease to be as committed to the cause of the movement. Through a grand conspiracy, as is of the essence of how rebellion is committed, involving a great mass of confederates bound together by a common goal, he remains in a state of continued participation in the criminal act or design. His heart still beats with the same emotion for the success of the movement of which he continues to be an ardent adherent and ally. It is simple logic then to hold that there should be no legal compulsion for a captured rebel to be charged in court, only to be released on bail, while he is, realistically and legally, still as much a part and parcel of the movement, continuing as it is, as those still engaged in carrying on actively to attain their goal of overthrowing the established regime. Hence, it is easy to perceive how impressed with absolute verity is the opinion expressed by two acknowledged authorities on Constitutional law in our country,^[7] which We quote:

". . . .If the return to the writ shows that the person in custody was apprehended and detained in areas where the privileges of the writ have been suspended or for the crimes mentioned in the executive proclamation, the court will suspend further proceedings in the action."

Impeccable as it is, the opinion could not but find a resonant echo as it did in the recent case of Buscayno vs. Military Commission,^[8] decided after Proclamation No. 2045 was issued, which in terms clear and categorical, held that the constitutional right to bail is unavailing when the privilege of the writ of habeas corpus is suspended with respect to certain crimes as enumerated or described in the abovementioned Proclamation.

It is, likewise, all too well-known that when the rebel forces capture government troopers or kidnap private individuals, they do not accord to them any of the rights now being demanded by the herein petitioners, particularly to be set at liberty upon the filing of bail. As a matter of common knowledge, captives of the rebels or insurgents are not only not given the right to be released, but also denied trial of any kind. In some instances, they may even be liquidated unceremoniously. What is then sought by the suspension of the privilege of the writ of habeas corpus is, among others, to put the government forces on equal fighting terms with the rebels, by authorizing the detention of their own rebel or dissident captives as the rebellion goes on. In this way, the advantage the rebellion forces have over those of the government, as when they resort to guerilla tactics with sophisticated weapons, is, at least, minimized, thereby enhancing the latter's chances of beating their enemy. It would, therefore, seem to be ignoring realities in the name of misplaced magnanimity and compassion, and for the sake of humanity, to grant the demand for respect of rights supposedly guaranteed by the Constitution by those who themselves seek to destroy that very same instrument, trampling over it already as they are still waging war against the government. This stark actuality gives added force and substance to the rationale of the suspension of the privilege of the writ of habeas corpus in case of invasion, insurrection, rebellion, or imminent danger thereof, when public safety requires it.

6. Invoking the Lansang case,^[9] however, petitioners would ask this Court to review the issuance of the PCO against them, intimating that arbitrariness attended its issuance because, relying on the evidence supposedly available in the hands of the military, they claim they are not guilty of rebellion. They also contend that the provisions of LOI No. 1211 have not been complied with.

The Lansang case went no further than to pronounce the suspension of the writ of the privilege of habeas corpus on August 21, 1971, valid and constitutional, on a finding that there was no arbitrariness attendant to the suspension. It never intended to suggest that for every individual case of arrest and detention, the writ of habeas corpus is available, even after the suspension of this privilege, to question the legality of the arrest and detention on ground of arbitrariness. When a person is charged in court for an ordinary offense, the law does not authorize the filing of a petition for habeas corpus based on the ground that there is absolutely no evidence to hold him for trial, which, in effect, constitutes an allegation of arbitrariness in the filing of the case against him. The law has afforded him adequate safeguards against arbitrariness, such as the requirement of determining the existence of a probable cause by the judge before the issuance of the warrant of arrest. The finding of such probable cause may not be immediately brought for review by this Court in a habeas corpus proceeding, on the claim of arbitrariness. The matter is to be decided on the basis of the evidence, and this Court is not the proper forum for the review sought, not being a trier of facts. If such a procedure were allowed, it would be easy to delay and obstruct the prosecution of an offense by a resort to a petition for habeas corpus based on arbitrariness, which most accused, if not all, would be most inclined, specially when they are out on bail. The petition now before Us is exactly one of this kind. If granted, the effect is to transfer the jurisdiction of the trial courts in criminal cases to this Court, which is simply inconceivable. Moreover, arbitrariness, while so easy to allege, is hard to prove, in the face of the formidable obstacle built up by the presumption of regularity in the performance of official duty. Unexhilaratingly, this is the revealing experience of this Court in the Lansang case, where it doubtlessly realized how hardly possible it is to adduce evidence or proof upon which to show the President having acted with arbitrariness.

7. The last question relates to the legality of the Presidential Commitment Order (PCO) issued by the President on July 12, 1982, tested by the conformity of its issuance to the procedure laid down under LOI 1211, petitioners insisting that the LOI limits the authority of the President to cause the arrest and detention of persons engaged in or charged with, the crimes mentioned in Proclamation No. 2045. They contend that the procedure prescribed in the LOI not having been observed, the PCO issued thereunder did not validate the initial illegal arrest of the herein petitioners as well as their continued detention.

It must be noted that LOI No. 1211, which provides the guidelines in the arrest and detention of persons engaged in, or charged with, the crimes mentioned in Proclamation No. 2045, contemplates of three situations when an arrest can be made, to wit:

"1. The arrest and detention effected by virtue of a warrant issued by a judge;

"2. The arrest and detention effected by a military commander or the head of a law enforcement agency after it is determined that the person or persons to be arrested would probably escape or commit further acts which would endanger public order and safety. After the arrest, however, the case shall be immediately referred to the city or provincial fiscal, or to the municipal, city, circuit, or district judge for preliminary examination or investigation who, if the evidence warrants, shall file the corresponding charges and, thereafter, secure a warrant of arrest;

"3. The military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order under the following circumstances:

(a) When resort to judicial process is not possible or expedient without endangering public order and safety; or

(b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety."

Petitioners appear to place entire reliance on paragraphs 1 and 2 of LOI No. 1211, ignoring paragraph 3 of LOI No. 1211, which provides:

"3. The above notwithstanding, the military commander or the head of the law enforcement agency may apply to the President thru the Minister of National Defense, for a Presidential Commitment Order covering the person or persons believed to be participants in the commission of the crimes referred to in paragraph 1 under the following circumstances:

(a) When resort to judicial process is not possible or expedient without endangering public order and safety; or

(b) When the release on bail of the person or persons already under arrest by virtue of a judicial warrant would endanger said public order and safety."

The reliance of petitioners on paragraphs 1 and 2 of LOI 1211 as to the alleged necessity of judicial warrant before a person may be arrested and detained is not well-founded. Neither is the contention that paragraph 3 of LOI 1211 applies only when judicial process is not possible. This is a narrow and constricted interpretation of LOI 1211 when viewed in its entirety. Even in instances when a resort to judicial process is possible, where, in the judgment of the President, a resort thereto would not be expedient because it would endanger the public order or safety, a PCO is justified. So, too, when release on bail in the ordinary judicial process will invite the same danger.

By its very nature, and clearly by its language, LOI 1211 is a mere directive of the President as Commander-in-Chief of the Armed Forces of the Philippines to his subordinates or implementing officers for the ultimate objective of providing guidelines in the arrest and detention of the persons covered by Presidential Proclamation No. 2045. The purpose is "to insure protection to individual liberties without sacrificing the requirements of public order and safety and the effectiveness of the campaign against those seeking the forcible overthrow of the government and duly constituted authorities." LOI 1211 does not, in any manner, limit the authority of the President to cause the arrest and detention of persons engaged in, or charged with the crimes or offenses mentioned in said Proclamation in that he (President) would subject himself to the superior authority of the judge who, under normal judicial processes in the prosecution of the common offenses, is the one authorized to issue a judicial warrant after a preliminary investigation is conducted with a finding of probable cause. Those who would read such an intention on the part of the President in issuing LOI 1211 seems to do so in their view that LOI forms part of the law of the land under the 1976 amendment of the Constitution.^[10] They would then contend that a PCO issued not in compliance with the provisions of the LOI would be an illegality and of no effect.

To form part of the law on the land, the decree, order or LOI must be issued by the President in the exercise of his extraordinary power of legislation as contemplated in Section 6 of the 1976 amendments to the Constitution, whenever in his judgment, there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasan Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action. There can be no pretense, much less a showing, that these conditions prompted the President to issue LOI 1211. Verily, not all LOI issued by the President should be dignified into forming part of the law of the land.

In the event then that the judge believes no warrant shall issue, the President, under Presidential Proclamation No. 2045 and Letter of Instruction No. 1211, is not bound by such finding, as explicitly provided in paragraph 2 of LOI 1211. That the President avails of the facilities of the judicial machinery, as is the clear intent of LOI 1211, to aid him in exercising his power to restrain personal liberty, as dictated by the necessities and exigencies of the emergency, does not indicate any intention on his part to renounce or to allow even mere curtailment of his power such that the judicial process will thereupon take its normal course, under which the detainees or accused would then be entitled to demand their right of due process, particularly in relation to their personal liberty.^[11] The issuance of the PCO by the President necessarily constitutes a finding that the conditions he has prescribed in LOI 1211 for the issuance of that PCO have been met, and intends that the detention would be pursuant to the executive process incident to the government campaign against the rebels, subversives and dissidents waging a rebellion or insurrection. The ruling in the Nava vs. Gatmaitan case,^[*] as above intimated, must have shown him that to prosecute the offense through the judicial process forthwith instead of deferring it, would neither be wise nor expedient if he were to deal effectively with the grave emergency at hand.

What has been said above shows the need of reexamining the Lansang case with a view to reverting to the ruling of Barcelon vs. Baker, 5 Phil. 87, a 1905 decision, and Montenegro vs. Castañeda, 91 Phil. 882 (1952), that the President's decision to suspend the privilege of the writ of habeas corpus is "final and conclusive upon the courts, and all other persons." This well-settled ruling was diluted in the Lansang case which declared that the "Function of the Court is merely to check--not to supplant--the Executive, or ascertain merely whether he has gone beyond the constitutional limits of his jurisdiction not to exercise the power vested in him or to determine the wisdom of his act." Judicial interference was thus held as permissible, and the test as laid down therein is not whether the President acted correctly but whether he acted arbitrarily. This would seem to be pure semanticism, if We consider that with particular reference to the nature of the actions the President would take on the occasion of the grave emergency he has to deal with, which, as clearly indicated in Section 9, Art. VII of the Constitution partakes of military measures, the judiciary can, with becoming modesty, ill afford to assume the authority to check or reverse or supplant the presidential actions. On these occasions, the President takes absolute command, for the very life of the Nation and its government, which, incidentally, includes the courts, is in grave peril. In so doing, the President is answerable only to his conscience, the people and to God. For their part, in giving him the supreme mandate as their President, the people can only trust and pray that, giving him their own loyalty with utmost patriotism, the President will not fail them.

In his separate opinion in the Lansang case, then Justice Fernando, now our learned Chief Justice, went along with the proposition that the decision of the Executive in the exercise of his power to suspend the privilege of the writ of habeas corpus is his alone, and in his own language, is "ordinarily beyond the ken of the Courts." This is so, as the Founding Fathers must have felt that in the particular situations at hand, the Executive and the Judiciary should maintain a mutually deferential attitude. This is the very essence of the doctrine of "political question," as determining the justiciability of a case. The wisdom of this concept remains well-recognized in advanced constitutional systems. To erase it from our own system as seems to be what was done in the Lansang case, may neither be proper nor prudent. A good example could be given in the exercise of the presidential power of pardon which is beyond judicial review, specially under the new Constitution where the condition that it may be granted only after final conviction has been done away with.

True, the Constitution is the law "equally in war and in peace,"^[12] as Chief Justice Fernando cited in his brilliant separate opinion in the same Lansang case. Precisely, it is the Constitution that gives the President specific "military power" in times of warlike conditions as exist on the occasion of invasion, insurrection or rebellion. Both power and right are constitutionally granted, with the difference that the guarantee of the right to liberty is for personal benefit, while the grant of the presidential power is for public safety. Which of the two enjoys primacy over the other is all too obvious. For the power is intended as a limitation of the right, in much the same way as individual freedom yields to the exercise of the police power of the State in the interest of general welfare. The difference again is that the power comes into being during extreme emergencies the exercise of which, for complete effectiveness for the purpose it was granted should not permit interference, while individual freedom is obviously for full enjoyment in time of peace, but in time of war or grave peril to the nation, should be limited or restricted. In a true sense then, our Constitution is for both peacetime and in time of war; it is not that in time of war the Constitution is silenced. The Founding Fathers, with admirable foresight and vision, inserted provisions therein that come into play and application in time of war or similar emergencies. So it is that, as proclaimed by the Constitution, the defense of the State is a prime duty of government. Compulsory military service may be imposed, certainly a mandate that derogates on the right to personal liberty. It, therefore, becomes self-evident that the duty of the judiciary to protect individual rights must yield to the power of the Executive to protect the State, for if the State perishes, the Constitution, with the Bill of Rights that guarantees the right to personal liberty, perishes with it.

In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President.^[13] Would it not be as proper and wholly acceptable to lay down the principle that during such crises, the judiciary should be less jealous of its power and more trusting of the Executive in the exercise of its emergency powers in recognition of the same necessity? Verily, the existence of the emergencies should be left to President's sole and unfettered determination. His exercise of the power to suspend the privilege of the writ of habeas corpus on the occasion thereof, should also be beyond judicial review. Arbitrariness, as a ground for judicial inquiry of presidential acts and decisions, sounds good in theory but impractical and unrealistic, considering how well-nigh impossible it is for the courts to contradict the finding of the President on the existence of the emergency that gives occasion for the exercise of the power to suspend the privilege of the writ. For the Court to insist on reviewing Presidential action on the ground of arbitrariness may only result in a violent collision of two jealous powers with tragic consequences, by all means to be avoided, in favor of adhering to the more desirable and long-tested doctrine of "political question" in reference to the power of judicial review.^[14]

Amendment No. 6 of the 1973 Constitution, as earlier cited, affords further reason for the reexamination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs. Castañeda.

Accordingly, We hold that in times of war and similar emergency as expressly provided in the Constitution, the President may suspend the privilege of the writ of habeas corpus, which has the effect of allowing the Executive to defer the prosecution of any of the offenses covered by Proclamation No. 2045, including, as a necessary consequence, the withholding for the duration of the suspension of the privilege, of the right to bail. The power could have been vested in Congress, instead of the President, as it was so vested in the United States for which reason, when President Lincoln himself exercised the power in 1861, Chief Justice Taney of the U.S. Supreme Court expressed the opinion that Congress alone possessed this power under the Constitution.^[15] Incidentally, it seems unimaginable that the judiciary could subject the suspension, if decreed through congressional action, to the same inquiry as our Supreme Court did with the act of the President, in the Lansang case, to determine if the Congress acted with arbitrariness.

We further hold that under LOI 1211, a Presidential Commitment Order, the issuance of which is the exclusive prerogative of the President under the Constitution, may not be declared void by the courts, under the doctrine of "political question," as has been applied in the Baker and Castañeda cases, on any ground, let alone its supposed violation of the provision of LOI 1211, thus diluting, if not abandoning, the doctrine of the Lansang case. The supreme mandate received by the President from the people and his oath to do justice to every man should be sufficient guarantee, without need of judicial overseeing, against commission by him of an act of arbitrariness in the discharge particularly of those duties imposed upon him for the protection of public safety which in itself includes the protection of life, liberty and property. This Court is not possessed with the attribute of infallibility that when it reviews the acts of the President in the exercise of his exclusive power, for possible fault of arbitrariness, it would not itself go so far as to commit the self-same fault.

Finally, We hold that upon the issuance of the Presidential Commitment Order against herein petitioners, their continued detention is rendered valid and legal, and their right to be released even after the filing of charges against them in court, to depend on the President, who may order the release of a detainee or his being placed under house arrest, as he has done in meritorious cases.

WHEREFORE, the instant petition should be, as it is hereby dismissed.

SO ORDERED.

Guerrero, Plana, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Fernando, C.J., in a separate opinion concurs in the result with qualification primarily on the respect that must be accorded the constitutional right to bail once a case is filed and dissents as to the overruling of Lansang v. Garcia.
Teehankee, J., files a separate dissenting opinion.
Makasiar, J., In the result and in overruling the Lansang case.
Concepcion Jr., J., In the result.
Abad Santos, J., In the result and in overruling Lansang. I reserve my right on the question of bail.
Melencio-Herrera, J., in the result.
Aquino, J., on leave.

---

^[1] 212 U.S. 416, 417.

^[2] 59 SCRA 183 (1974).

^[3] Moyer vs. Peabody, 212 U.S. 78, citing Keely vs. Sanders, 99 U.S. 441, 446, 25 L. Ed. 327, 328.

^[4] Lansang vs. Garcia, 42 SCRA 488.

^[5] Section 9, Article VII, Constitution.

^[6] Encyclopedia of the Social Sciences, Vol. VIII, p. 236, 1950 Ed.

^[7] Political Law of the Philippines by Senator Lorenzo Tañada and Atty. Francisco Carreon, Vol. II, p. 236.

^[8] 109 SCRA 273.

^[9] Lansang vs. Garcia, supra.

^[10] Section 6, 1976 Amendment to the Constitution

^[11] Nava vs. Gatmaitan, 90 Phil. 172.

^[*] The ruling was non-doctrinal for lack of the necessary votes.

^[12] Ex parte Milligan, 4 Wallace 2 (1866).

^[13] Section 15, Article VIII, 1973 Constitution.

^[14] As explained in Tañada, et al. vs. Cuenco, et al. (103 Phil. 1051), term "political question" connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It refers to those questions, which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or Executive branch of the Government (16 C.J.S. 413).

^[15] Ex parte Merryman, Federal Case No. 9487 (1861)


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