POLITICAL LAW REVIEW 10 POLI RECIT Qs / ARTICLE III, SECTION 15 KA-POLI NOTES 2020-2021 Dione Maghirang / Lara Murallos / Tin Narne-Pedralvez / Fergie Villanuevaclearly means denial of the right to be released on bail onbeing charged in court with bailable offenses.The suspension of the privilege of the writ of habeas corpusmust, indeed, carry with it the suspension of the right to bail, if the government's campaign to suppress the rebellion is tobe enhanced and rendered effective. If the right to bail maybe demanded during the continuance of the rebellion, andthose arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejointheir comrades in the field thereby jeopardizing the successof government efforts to bring to an end the invasion,rebellion or insurrection.“If the return to the writ shows that the person in custody wasapprehended and detained in areas where the privileges of the writ have been suspended or for the crimes mentioned inthe executive proclamation, the court will suspend furtherproceedings in the action." Impeccable as it is, the opinioncould not but find a resonant echo as it did in the recent caseofBuscaynovs.MilitaryCommission;decidedafterProclamation No. 2045 was issued, which in terms clear andcategorical, held that the constitutional right to bail isunavailing when the privilege of the writ of habeas corpus issuspended with respect to certain crimes as enumerated ordescribed in the abovementioned Proclamation.What has been said above shows the need of reexamining theLansang case with a view to reverting to the ruling of Barcelonvs. Baker, and Montenegro vs. Castañeda, that the President'sdecision to suspend the privilege of the writ of habeas corpusis "final and conclusive upon the courts, and all otherpersons."This well-settled ruling was diluted in the Lansang case whichdeclared that the "function of the Court is merely to check—not to supplant—the Executive, or ascertain merely whetherhe has gone beyond the constitutional limits of his jurisdictionnot to exercise the power vested in him or to determine thewisdom of his act." Judicial interference was thus held as permissible, and the testas laid down therein is not whether the President actedcorrectly but whether he acted arbitrarily.In his separate opinion in the Lansang case, then JusticeFernando, now our learned Chief Justice, went along with the proposition that the decision of the Executive in the exerciseof his power to suspend the privilege of the writ of habeascorpus is his alone, and in his own language, is "ordinarilybeyond the ken of the Courts."This is so, as the Founding Fathers must have felt that in theparticular situations at hand, the Executive and the Judiciaryshould maintain a mutually deferential attitude. This is the very essence of the doctrine of "political question," asdetermining 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. True, the Constitution is the law "equally in war and in peace," 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. 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.
In times of war or national emergency, the legislature may surrender a part of its power of legislation to the President. 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 shouldbelefttoPresident'ssoleandunfettered 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. 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 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. 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 POLITICAL LAW REVIEW 11 POLI RECIT Qs / ARTICLE III, SECTION 15 KA-POLI NOTES 2020-2021 Dione Maghirang / Lara Murallos / Tin Narne-Pedralvez / Fergie Villanuevaafter the filing of charges against them in court, to depend onthe President, who may order the release of a detainee or hisbeing placed under house arrest, as he has done in meritorious cases.
Doctrine: The absence of judicial warrant is no legal impediment to arresting or capturing persons committing over 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. 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. Arrest for continuing offenses The crimes of insurrection, 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 with 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, the arrest of the detainees without a judicial warrant as well within the bounds of the law and existing jurisprudence in our jurisdiction. Is there any consequence when there is an absence of judicial warrant in the arrest of persons committing overt acts of violence against government forces? None. The absence of 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. What is the procedure in the arrest and prosecution of persons involved in rebellion? The arrest of persons involved in the rebellion whether as its ghting armned 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 conict, 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. Is the issuance of the presidential commitment order preventive or is it subject to judicial inquiry? It is merely preventive. 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." What is the legal basis for the suspension of the privilege of the writ of habeas corpus in this case? 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. What is the significance of the conferment of power upon the President as Commander-in-Chief? Is it subject to judicial inquiry as to its legality under the Bill of Rights? No, it is not subject to judicial inquiry. The significance of the conferment of this power, constitutionality upon the President as Commander-in-Chief, is that the exercise thereof is not subject of 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. What are the contingencies under the Constitution that justify non-interference? in the case of "invasion" along which "rebellion" or "insurrection" is mentioned by the Constitution, is a contingency which 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 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. What is the application on specific individuals, especially within the sound judgment of the president? the application of the suspension of the privilege of the writ of habeas corpus on specific individuals should be left to the exclusive and sound judgment of the President, the public safety requires it, a matter, likewise, which should be left for
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POLITICAL LAW REVIEW 12 POLI RECIT Qs / ARTICLE III, SECTION 15 KA-POLI NOTES 2020-2021 Dione Maghirang / Lara Murallos / Tin Narne-Pedralvez / Fergie Villanuevathe sole determination of the President as Commander-in-Chief of the Nation's armed forces. The need for a unifiedcommand in such contingencies is imperative-even axiomaticas a basic military concept in the art of warfare.What is the function of the Court as interpreted in the Lansangcase?The function of the court is merely to check—not tosupplant—the Executive, or to ascertain merely whether hehas gone beyond the constitutional limits of his jurisdiction, not to exercise the power vested in him or to determinewisdom of his act.What are the factors which determine the legality of“preventive detention”?the terms "rebellion and insurrection" are used therein in thesense of a state or condition of the Nation, not in the concept of a statutory offense. The necessity of such measure as ameans of defense for national survival quite clearly transcendsin importance and urgency the claim of those detained to theright to bail to obtain their freedom. To hold otherwise woulddefeat the purpose of the constitutional grant of the power tosuspend the privilege of the writ of habeas corpus on theoccasions expressly mentioned in the charter.Why is the power deliberately vested on the President?the authority to suspend the privilege of the writ of habeascorpus has been deliberately vested on the President as theCommander-in-Chief of the armed forces, together with the related power to call out the armed forces to suppress lawlessviolence and impose martial law. no other ocial may, withequal capability andtness, be entrusted with the graveresponsibility that goes with the grant of the authority.Does the suspension of the privilege of the writ of habeascorpus carry with it the suspension of the right to bail?Yes. The suspension of the privilege of the writ of habeascorpus must, indeed, carry with it the suspension of the rightto bail, if the government's campaign to suppress therebellion is to be enhanced and rendered effective. If the rightto bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in thecourse thereof will be released, they would, without the leastdoubt, rejoin their comrades in theeld thereby jeopardingthe success of government efforts to bring to an end theinvasion, rebellion or insurrection.Is the availability of the writ of habeas corpus in individualcases intended in the case of Lansang?No. the writ of habeas corpus is available, even after thesuspension of this privilege, to question the legality of thearrest and detention on ground of arbitrariness.Is the finding of probable cause immediately reviewable bythe Supreme Court on claim of arbitrariness?No. The law had afforded him adequate safeguards againstarbitrariness, such as the requirement of determining theexistence of a probable cause by the judge before theissuance of the warrant of arrest. Thending 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 evidence, and this Court is not the proper forum for the review sought, not being a trial of facts. 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. What is the purpose of LOI 1211? To ensure 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. Does LOI 1211 limit or curtail the power of the president in favor of the judiciary? No. LOI 1211 does not, in any mane, 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 Is there a need for the reversion of the rulings in Barcelon vs. Baker and Montenegro vs. Castaneda? Yes. in the Lansang case, then Justice Fernando, now our owned 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 not alone, and in his own language, is "ordinarily beyond the ken of the Courts." Amendment No. 6 of the 1973 Constitution, affords further reason for the re-examination of the Lansang doctrine and reversion to that of Barcelon vs. Baker and Montenegro vs, Castañeda. Is the military power of the president intended as a limitation to the right to liberty? Yes. The Constitution is the law "equally in war and in peace," 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. Boot power and right are constitutionally granted, with the difference that the guarantee of the right to liberty is for personal benet, 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
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