The issue involved in these habeas corpuspetitions is the pre-eminent problem of the times – the primacy to be accorded the claims of liberty during periods of crisis. There is much that is novel in what confronts the Court. A traditional orientation may not suffice. The approach taken cannot be characterized by rigidity and inflexibility. There is room, plenty of it, for novelty and innovation. Doctrines deeply rooted in the past, that have stood the test of time and circumstance, must be made adaptable to present needs and, hopefully, serviceable to an unknown future, the events of which, to recall Story, are locked up in the inscrutable designs of a merciful Providence. It is essential then that in the consideration of the petitions before us there he objectivity, calmness, and understanding. The deeper the disturbance in the atmosphere of security, the more compelling is the need for tranquility of mind, if reason is to prevail. No legal barrier is to be interposed to thwart the efforts of the Executive to restore normalcy. He is not to be denied the power to take what for him may be necessary measures to meet emergency conditions. So the realities of the situation dictate. There should be on the part of the judiciary then, sensitivity to the social forces at work, creating conditions of grave unrest and turbulence and threatening the very stability, not to say existence, of the political order. It is in that setting that the crucial issue posed by these petitions is to be appraised. It may be that this clash between the primacy of liberty and the legitimate defense of authority is not susceptible of any definite, clear-cut solution. Nonetheless, an attempt has to be made. With all due recognition of the merit apparent in the exhaustive, scholarly and eloquent dissertations of Justice Barredo and my other brethren as well as the ease and lucidity with which the Chief Justice clarified the complex issues and the views of members of the Court, I would like to give a brief expression of my thoughts to render clear the points on which I find myself, with regret, unable to be of the same persuasion.

I concur in the dismissal of the habeas corpuspetition of Benigno S. Aquino, Jr. solely on the ground that charges had been filed and dissent in part in the dismissal of the petition of Francisco Rodrigo and others, * who joined him in his plea for the removal of the conditions on their release, on the view that as far as freedom of travel is concerned, it should be, on principle, left unrestricted. As originally prepared, this opinion likewise explained his dissent in the denial of the motion to withdraw in the petition filed on behalf of Jose W. Diokno, a matter now moot and academic.

1. We have to pass on habeas corpuspetitions. The great writ of liberty is involved. Rightfully, it is latitudinarian in scope. It is wide-ranging and all-embracing in its reach. It can dig deep into the facts to assure that there be no toleration of illegal restraint. Detention must be for a cause recognized by law. The writ imposes on the judiciary the grave responsibility of ascertaining whether a deprivation of physical freedom is warranted. The party who is keeping a person in custody has to produce him in court as soon as possible. What is more, he must justify the action taken. Only if it can be demonstrated that there has been no violation of one's right to liberty will he be absolved from responsibility. Failing that, the confinement must thereby cease. Nor does it suffice that there be a court process, order, or decision on which it is made to rest. If there be a showing of a violation of constitutional rights, the jurisdiction of the tribunal issuing it is ousted. Moreover, even if there be a valid sentence, it cannot, even for a moment, be extended beyond the period provided for by law. When that time comes, he is entitled to be released. It is in that sense then, as so well put by Holmes, that this great writ "is the usual remedy for unlawful imprisonment." 1 It does afford, to borrow from the language of Birkenhead, "a swift and imperative remedy in all cases of illegal restraint or confinement." 2 Not that there is need for actual incarceration. A custody for which there is no support in law suffices for its invocation. The party proceeded against is usually a public official, the run-of-the mill petitions often coming from individuals who for one reason or another have run afoul of the penal laws. Confinement could likewise come about because of contempt citations, 3 whether from the judiciary or from the legislature. It could also be due to statutory commands, whether addressed to cultural minorities 4 or to persons diseased. 5 Then, too, this proceeding could be availed of by citizens subjected to military discipline 6 as well as aliens seeking entry into or to be deported from the country. 7 Even those outside the government service may be made to account for their action as in the case of wives restrained by their husbands or children withheld from the proper parent or guardian. 8 It is thus apparent that any deviation from the legal norms calls for the restoration of freedom. It cannot be otherwise. It would be sheer mockery of all that such a legal order stands for, if any person's right to live and work where he is minded to, to move about freely, and to be rid of any unwarranted fears that he would just be picked up and detained, is not accorded full respect. The significance of the writ then for a regime of liberty cannot be overemphasized 9

2. Nor does the fact that, at the time of the filing of these petitions martial law had been declared, call for a different conclusion. There is of course imparted to the matter a higher degree of complexity. For it cannot be gainsaid that the reasonable assumption is that the President exercised such an awesome power, one granted admittedly to cope with an emergency or crisis situation, because in his judgment the situation as thus revealed to him left him with no choice. What the President did attested to an executive determination of the existence of the conditions that called for such a move. There was, in his opinion, an insurrection or rebellion of such magnitude that public safety did require placing the country under martial law. That decision was his to make it; it is not for the judiciary. The assessment thus made, for all the sympathetic consideration it is entitled to, is not, however, impressed with finality. This Court has a limited sphere of authority. That, for me, is the teaching of Lansang. 10 The judicial role is difficult, but it is unavoidable. The writ of liberty has been invoked by petitioners. They must be heard, and we must rule on their petitions.

3. This Court has to act then. The liberty enshrined in the Constitution, for the protection of which habeas corpusis the appropriate remedy, imposes that obligation. Its task is clear. It must be performed. That is a trust to which it cannot be recreant. Whenever the grievance complained of is deprivation of liberty, it is its responsibility to inquire into the matter and to render the decision appropriate under the circumstances. Precisely, a habeas corpuspetition calls for that response. For the significance of liberty in a constitutional regime cannot be sufficiently stressed. Witness these words from the then Justice, later Chief Justice, Concepcion: "Furthermore, individual freedom is too basic, to be denied upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted [twelve other] paragraphs [thereof] to the protection of several aspect of freedom." 11 A similar sentiment was given expression by the then Justice, later Chief Justice, Bengzon: "Let the rebels have no reason to apprehend that their comrades now under custody are being railroaded into Muntinlupa without benefit of those fundamental privileges which the experience of the ages has deemed essential for the protection of all persons accused of crime before the tribunals of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission will not, thru faulty cogitation or misplaced devotion, uphold any doubtful claims of Governmental power in diminution of individual rights, but will always cling to the principle uttered long ago by Chief Justice Marshall that when in doubt as to the construction of the Constitution, ‘the Courts will favor personal liberty' . . ." 12 The pertinence of the above excerpt becomes quite manifest when it is recalled that its utterance was in connection with a certiorariproceeding where the precise point at issue was whether or not the right to bail could be availed of when the privilege of the writ of habeas corpuswas suspended. There was no decisive outcome, although there were five votes in favor of an affirmative answer to only four against. 13 Such pronouncements in cases arising under the 1935 Constitution should occasion. no surprise. They merely underscore what was so vigorously emphasized by the then Delegate Jose P. Laurel, Chairman of the Committee on the Bill of Rights, in his sponsorship address of the draft provisions. Thus: "The history of the world is the history of man and his ardous struggle for liberty . . . It is the history of those brave and able souls who, in the ages that are past, have labored, fought and bled that the government of the lash – that symbol of slavery and despotism – might endure no more. It is the history of those great self-sacrificing men who lived and suffered in an age of cruelty, pain and desolation so that every man might stand, under the protection of great rights and privileges, the equal of every other man." 14 So should it be under the present Constitution. No less a person than President Marcos during the early months of the 1971 Constitutional Convention categorically affirmed in his Todays Revolution: Democracy: "Without freedom, the whole concept of democracy falls apart." 15 Such a view has support in history. A. statement from Dr. Rizal has a contemporary ring: "Give liberties, so that no one may have a right to conspire. 16 Mabini listed as an accomplishment of the ill-fated revolution against the Americans the manifestation of "our love of freedom guaranteeing to each citizen the exercise of certain rights which make our communal life less constricted, . . ." 17

4. Equally so, the decisive issue is one of liberty not only because of the nature of the petitions, but also because that is the mandate of the Constitution. That is its philosophy. It is a regime of liberty to which our people are so deeply and firmly committed. 18 The fate of the individual petitioners hangs in the balance. That is of great concern. What is at stake, however, is more than that – much more. There is a paramount public interest involved The momentous question is how far in times of stress fidelity can be manifested to the claims of liberty. So it is ordained by the Constitution, and it is the highest law. It must be obeyed. Nor does it make a crucial difference. to my mind, that martial law exists. It may call for a more cautious approach. The simplicity of constitutional fundamentalism may not suffice for the complex problems of the day. Still the duty remains to assure that the supremacy of the Constitution is upheld. Whether in good times or bad, it must be accorded the utmost respect and deference. That is what constitutionalism connotes. It is its distinctive characteristic. Greater restraints may of course be imposed. Detention, to cite the obvious example, is not ruled out under martial law, but even the very proclamation thereof is dependent on public safety making it imperative. The powers, rather expansive, perhaps at times even latitudinarian, allowable the administration under its aegis, with the consequent diminution of the sphere of liberty, are justified only under the assumption that thereby the beleaguered state is in a better position to protect, defend and preserve itself. They are hardly impressed with the element of permanence. They cannot endure longer than the emergency that called for the executive having to make use of this extraordinary prerogative. When it is a thing of the past, martial law must be at an end. It has no more reason for being. If its proclamation is open to objection, or its continuance no longer warranted, there is all the more reason, to follow Laski, to respect the traditional limitation of legal authority that freedom demands. 19 With these habeas corpuspetitions precisely rendering peremptory action by this Court, there is the opportunity for the assessment of liberty considered in a concrete social context. With full appreciation then of the complexities of this era of turmoil and disquiet, it can hopefully contribute to the delineation of constitutional boundaries. It may even be able to demonstrate that law can be timeless and yet timely.

5. There are relevant questions that still remain to be answered. Does not the proclamation of martial law carry with it the suspension of the privilege of the writ of habeas corpus? If so, should not the principle above enunciated he subjected to further refinement? I am not too certain that the first query necessarily calls for an affirmative answer. Preventive detention is of course allowable. Individuals who are linked with invasion or rebellion may pose a danger to the public safety. There is nothing inherently unreasonable in their being confined. Moreover, where it is the President himself, as in the case of these petitioners, who personally directed that they be taken in, it is not easy to impute arbitrariness. It may happen though that officers of lesser stature not impressed with the high sense of responsibility would utilize the situation to cause the apprehension of persons without sufficient justification. Certainly it would be, to my mind, to sanction oppressive acts if the validity of such detention cannot he inquired into through habeas corpuspetitions. It is more than just desirable therefore that if such be the intent, there be a specific decree concerning the suspension of the privilege of the writ of habeas corpus. Even then, however, such proclamation could be challenged. If vitiated by constitutional infirmity, the release may be ordered. Even if it were otherwise, the applicant may not be among those as to whom the privilege of the writ has been suspended. It is pertinent to note in this connection that Proclamation No. 1081 specifically states "that all persons presently detained, as well as all others who may hereafter be similarly detained for the crimes of insurrection or rebellion, and all other crimes and offenses committed in furtherance or on the occasion thereof, or incident thereto, or in connection therewith, for crimes against national security and the law of nations, crimes against the fundamental laws of the State, crimes against public order, crimes involving usurpation of authority, rank, title and improper use of names, uniforms and insignia, crimes committed by public officers, and for such other crimes as will be enumerated in Orders that I shall subsequently promulgate, as well as crimes as a consequence of any violation of any decree, order or regulation promulgated by me personally or promulgated upon my direction shall be kept under detention until otherwise ordered released by me or by my duly designated representative." 20 The implication appears to be that unless the individual detained is included among those to whom any of the above crime or offense may be imputed, he is entitled to judicial protection. Lastly, the question of whether or not there is warrant for the view that martial law is at an end may be deemed proper not only in the light of radically altered conditions but also because of certain executive acts clearly incompatible with its continued existence. Under such circumstances, an element of a justiciable controversy may be discerned.

6. That brings me to the political question doctrine. Its accepted signification is that where the matter involved is left to a decision by the people acting in their sovereign capacity or to the sole determination by either or both the legislative or executive branch of the government, it is beyond judicial cognizance. 21 Thus it was that in suits where the party proceeded against was either the President or Congress, or any of its branches for that matter, the courts refused to act. 22 Unless such be the case, the action taken by any or both the political branches whether in the form of a legislative act or an executive order could be tested in court. Where private rights are affected, the judiciary has the duty to look into its validity. There is this further implication of the doctrine. A showing that plenary power is granted either department of government may not be an obstacle to judicial inquiry. Its improvident exercise or the abuse thereof may give rise to a justiciable controversy 23 What is more, a constitutional grant of authority is not usually unrestricted. 24 Limitations are provided for as to what may be done and how it is to be accomplished. Necessarily then, it becomes the responsibility of the courts to ascertain whether the two coordinate branches have adhered to the mandate of the fundamental law. The question thus posed is judicial rather than political.

7. Reference at this point to the epochal opinion in the aforecited Lansang v. Garcia decision, where the validity of the suspension of the privilege of the writ of habeas corpuswas sustained by this Court, is not amiss. For in both in the 1935 and in the present Constitutions, the power to declare martial law is embraced in the same provision with the grant of authority to suspend the privilege of the writ of habeas corpus, with the same limits to be observed in the exercise thereof 25 It would follow, therefore, that a similar approach commends itself on the question of whether or not the finding made by the President in Proclamation No. 1081 as to the existence of "rebellion and armed action undertaken by these lawless elements of the communist and other armed aggrupations organized to overthrow the Republic of the Philippines by armed violence and force [impressed with the] magnitude of an actual state of war against [the] people and the Republic . . ." 26 is open to judicial inquiry. Reference to the opinion of Chief Justice Concepcion would prove illuminating "Indeed, the grant of power to suspend the privilege is neither absolute nor unqualified. The authority conferred by the Constitution, both under the Bill of Rights and under the Executive Department, is limited and conditional. The precept in the Bill of Rights establishes a general rule, as well as an exception thereto. What is more, it postulates the former in the negative, evidently to stress its importance, by providing that ‘(t)he privilege of the writ of habeas corpusshall not be suspended. . . .' It is only by way of exception that it permits the suspension of the privilege ‘in cases of invasion, insurrection, or rebellion' – or, under Art. VII of the Constitution, ‘imminent danger thereof' – ‘when the public safety requires it, in any of which events the same may be suspended wherever during such period the necessity for such suspension shall exist.' Far from being full and plenary, the authority to suspend the privilege of the writ is thus circumscribed, confined and restricted not only by the prescribed setting or the conditions essential to its existence, but also as regards the time when and the place where it may be exercised. These factors and the aforementioned setting or conditions mark, establish and define the extent, the confines and the limits of said power, beyond which it does not exist. And, like the limitations and restrictions imposed by the Fundamental Law upon the legislative department, adherence thereto and compliance therewith may, within proper bounds, be inquired into by courts of justice. Otherwise, the explicit constitutional provisions thereon would be meaningless. Surely, the framers of our Constitution could not have intended to engage in such a wasteful exercise in futility." 27 Such a view was fortified by the high estate accorded individual freedom as made clear in the succeeding paragraph of his opinion: "Much less may the assumption be indulged in when we bear in mind that our political system is essentially democratic and republican in character and that the suspension of the privilege affects the most fundamental element of that system, namely, individual freedom. Indeed, such freedom includes and connotes, as well as demands, the right of every single member of our citizenry to freely discuss and dissent from, as well as criticize and denounce, the views, the policies and the practices of the government and the party in power that he deems unwise, improper or inimical to the commonwealth, regardless of whether his own opinion is objectively correct or not. The untrammelled enjoyment and exercise of such right – which, under certain conditions, may be a civic duty of the highest order – is vital to the democratic system and essential to its successful operation and wholesome growth and development." 28

The writer wrote a concurring and dissenting opinion. He was fully in agreement with the rest of his brethren as to the lack of conclusiveness attached to the presidential determination. Thus: "The doctrine announced in Montenegro v. Castañeda that such a question is political has thus been laid to rest. It is about time too. It owed its existence to the compulsion exerted by Barcelon v. Baker, a 1905 decision. This Court was partly misled by an undue reliance in the latter case on what is considered to be authoritative pronouncement from such illustrious American jurists as Marshall, Story, and Taney. That is to misread what was said by them. This is most evident in the case of Chief Justice Marshall, whose epochal Marbury v. Madison was cited. Why that was so is difficult to understand. For it speaks to the contrary. It was by virtue of this decision that the function of judicial review owes its origin notwithstanding the absence of any explicit provision in the American Constitution empowering the courts to do so. Thus: ‘It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of legislature, the constitution, and not such ordinary act, must govern the case to which they both apply." 29

8. To refer to Lansang anew, this Court sustained the presidential proclamation suspending the privilege of the writ of habeas corpusas there was no showing of arbitrariness in the exercise of a prerogative belonging to the executive, the judiciary merely acting as a check on the exercise of such authority. So Chief Justice Concepcion made clear in this portion of his opinion: "Article VII of the Constitution vests in the Executive power to suspend the privilege of the writ of habeas corpusunder specified conditions. Pursuant to the principle of separation of powers underlying our system of government, the Executive is supreme within his own sphere. However, the separation of powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of checks and balances, under which the Executive is supreme, as regards the suspension of the privilege, but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally supreme. In the exercise of such authority, the function 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. To be sure, the power of the Court to determine the validity of the contested proclamation is far from being identical to, or even comparable with, its power over ordinary civil or criminal cases elevated thereto by ordinary appeal from inferior courts, in which cases the appellate court has all of the powers of the court of origin." 30 The test then to determine whether the presidential action should be nullified according to the Supreme Court is that of arbitrariness. Absent such a showing, there is no justification for annulling the presidential proclamation.

On this point, the writer, in a separate opinion, had this to say: "With such presidential determination of the existence of the conditions required by the Constitution to justify a suspension of the privilege of the writ no longer conclusive on the other branches, this Court may thus legitimately inquire into its validity. The question before us, it bears repeating, is whether or not Proclamation No. 889 as it now stands, not as it was originally issued, is valid. The starting point must be a recognition that the power to suspend the privilege of the writ belongs to the Executive, subject to limitations. So the Constitution provides, and it is to be respected. The range of permissible inquiry to be conducted by this Tribunal is necessarily limited then to the ascertainment of whether or not such a suspension, in the light of the credible information furnished the President, was arbitrary. Such a test met with the approval of the chief counsel for petitioners, Senator Jose W. Diokno. To paraphrase Frankfurter, the question before the judiciary is not the correctness but the reasonableness of the action taken. One who is not the Executive but equally knowledgeable may entertain a different view, but the decision rests with the occupant of the office. As would be immediately apparent even from a cursory perusal of the data furnished the President, so impressively summarized in the opinion of the Chief Justice, the imputation of arbitrariness would be difficult to sustain. Moreover, the steps taken by him to limit the area where the suspension operates as well as his instructions attested to a firm resolve on his part to keep strictly within the bounds of his authority. Under the circumstances, the decision reached by the Court that no finding of unconstitutionality is warranted commends itself for approval. The most that can be said is that there was a manifestation of presidential power well-nigh touching the extreme borders of his conceded competence, beyond which a forbidden domain lies. The requisite showing of either improvidence or abuse has not been made." 31

9. The Lansang doctrine for me is decisive on the various issues raised in this case, my discussion being confined to petitioner Rodrigo, as well as others similarly situated, for under my view that the petition in Aquino should be dismissed because charges had been filed, and the petition in Diokno should be considered withdrawn, there need be no further inquiry as to the merits of their respective contentions.

Now, first as to the validity of the proclamation itself. It would seem that it is beyond question in the light of this particular transitory provision in the present Constitution: "All proclamations, orders, decrees, instructions, and acts promulgated, issued, or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular National Assembly." 32 Independently of such provision, such presidential proclamation could not be characterized as arbitrary under the standard set forth in the Lansang decision. He did act "on the basis of carefully evaluated and verified information, [which] definitely established that lawless elements who are moved by a common or similar ideological conviction, design strategy and goal and enjoying the active moral and material support of a foreign power and being guided and directed by intensely devoted, well-trained, determined and ruthless groups of men and seeking refuge under the protection of our constitutional liberties to promote and attain their ends, have entered into a conspiracy and have in fact joined and banded their resources and forces together for the prime purpose of, and in fact they have been and are actually staging, undertaking and waging an armed insurrection and rebellion against the Government of the Republic of the Philippines in order to forcibly seize political and state power in the country, overthrow the duly constituted government, and supplant our existing political, social, economic and legal order with an entirely new one whose form of government, whose system of laws, whose conception of God and religion, whose notion of individual rights and family relations, and whose political, social, economic, legal and moral precepts are based on the Marxist-Leninist-Maoist teachings and beliefs; . . ." 33

Subsequent events did confirm the validity of such appraisal. Even now, from the pleadings of the Solicitor General, the assumption that the situation has not in certain places radically changed for the better cannot be stigmatized as devoid of factual foundation. As of the present then, even on the view that the courts may declare that the crisis conditions have ended and public safety does not require the continuance of martial law, there is not enough evidence to warrant such a judicial declaration. This is not to deny that in an appropriate case with the proper parties, and, in the language of Justice Laurel, with such issue being the very lis mota, they may be compelled to assume such an awesome responsibility. A sense of realism as well as sound juristic theory would place such delicate task on the shoulders of this Tribunal, the only constitutional court. So I would read Rutter v. Esteban. 34 There, while the Moratorium Act 35 was at first assumed to be valid, with this Court in such suit being persuaded that its "continued operation and enforcement" under circumstances that developed later, became "unreasonable and oppressive," and should not be prolonged a minute longer, . . . [it was] "declared null and void and without effect." 36 It goes without saying that before it should take such a step, extreme care should be taken lest the maintenance of public peace and order, the primary duty of the Executive, he attended with extreme difficulty. It is likewise essential that the evidence of public safety no longer requiring martial law be of the clearest and most satisfactory character. It cannot be too strongly stressed that while liberty is a prime objective and the judiciary is charged with the duty of safeguarding it, on a matter of such gravity during periods of emergency, the executive appraisal of the situation is deserving of the utmost credence. It suffices to recall the stress laid by Chief Justice Concepcion in Lansang that its function "is merely to check – not to supplant" the latter. The allocation of authority in the Constitution made by the people themselves to the three departments of government must he respected. There is to be no intrusion by any one into the sphere that belongs to another. Precisely because of such fundamental postulate in those cases, and there may be such, but perhaps rather rare, it could amount to judicial abdication if no inquiry were deemed permissible and the question considered political.

The last point is, while the detention of petitioners could have been validly ordered, as dictated by the very proclamation itself, if it continued for an unreasonable length of time, then his release may he sought in a habeas corpusproceeding. This contention is not devoid of plausibility. Even in times of stress, it cannot just be assumed that the indefinite restraint of certain individuals as a preventive measure is unavoidable. It is not to be denied that where such a state of affairs could be traced to the wishes of the President himself, it carries with it the presumption of validity. The test is again arbitrariness as defined in Lansang. It may happen that the continued confinement may be at the instance merely of a military official, in which case there is more leeway for judicial scrutiny.

10. A word more on the withdrawal of a habeas corpuspetition. On the basic assumption that precisely the great writ of liberty is available to a person subjected to restraint so that he could challenge its validity, I find it difficult not to yield assent to a plea by the applicant himself that he is no longer desirous or pursuing such remedy. He had a choice of whether or not to go to court. He was free to act either way. The fact that at first he did so, but that later he was of a different mind, does not, in my opinion, alter the situation. The matter, for me, is still one left to his free and unfettered will. The conclusion then, for me at least, is that a court must accede to his wishes. It could likewise he based on his belief that the realities of the situation compel the conclusion that relief could come from the Executive. That decision was his to make. It must be respected. Moreover, if only because of humanitarian considerations, considering the ill-effects of confinement on his state of health, there is equally legal support for the view that his conditional release as in the case of the other detainees would not be inappropriate.

If his motion for withdrawal contained phraseology that is offensive to the dignity of the court, then perhaps the corresponding disciplinary action may be taken. For that purpose, and for that purpose alone, the petition may be considered as still within judicial cognizance. It is true in certain cases that the issues raised may be so transcendental that there is wisdom in continuing the proceeding. The withdrawal, even then, for me, is not fraught with pernicious consequences. If the matter were that significant or important, the probability is that the question will soon be ventilated in another petition. There is, to deal briefly with another point, the matter of the rather harsh and bitter language in which the motion for withdrawal was couched. That is a matter of taste. Even if it went beyond the bounds of the permissible, the withdrawal should be granted. This for me is the principle that should obtain. The rather uncharitable view expressed concerning the ability of certain members of the Court to act justly on the matter should not give rise, in my opinion, to undue concern. That is one's belief, and one is entitled to it. It does not follow that thereby the person thus unjustifiably maligned should suffer any loss of self-esteem. After all, it is a truism to say that a man on the bench is accountable only to his conscience and, in the ultimate analysis, to his Maker. There is all the more reason then not to be unduly bothered by the remarks in question. Moreover, they emanated from a source suffering from the pangs of desperation born of his continued detention. It could very well be that the disappointment of expectations and frustration of hopes did lead to such an intemperate outburst. There is, for meat least, relevance to this excerpt from an opinion by justice Frankfurter: "Since courts, although representing the law, . . . are also sitting in judgment, as it were, on their own function in exercising their power to punish for contempt, it should be used only in flagrant cases and with the utmost forbearance. It is always better to err on the side of tolerance and even of disdainful indifference." 37

11. There is novelty in the question raised by petitioner Rodrigo. Nor is that the only reason why it matters. It is fraught with significance not only for him but also for quite a number of others in a like predicament. They belong to a group released from confinement. They are no longer detained. Ordinarily that should suffice to preclude resort to the remedy of habeas corpus. Offhand, it may be plausibly asserted that the need no longer exists. The prison wall, to paraphrase Chafee, is no longer there; it has fallen down. What is there to penetrate? That is just the point, petitioner Rodrigo complains. That is not really true, or only true partially. There are physical as well as intellectual restraints on his freedom. His release is conditional. There are things he cannot say, places he cannot go. That is not liberty in a meaningful sense. This great writ then has not lost its significance for him, as well as for others similarly situated. The way he developed his argument calls to mind Cardozo's warning that in a world of reality, a juridical concept may not always be pressed to the limit of its logic. There are countervailing considerations. The fact that he was among those whose detention was ordered by the President is one of them. There was then an executive determination on the highest level that the state of affairs marked by rebellious activities did call for certain individuals being confined as a preventive measure. Unless there is a showing of the arbitrariness of such a move, the judiciary has to respect the actuation. It must be assumed that what was to be done with them thereafter must have been given some attention. At one extreme, their preventive detention could he terminated and their full freedom restored. At the other, it could be continued if circumstances did so warrant. Here, there was a middle way chosen. Petitioner Rodrigo as well as several others were released subject to conditions. It cannot be dogmatically maintained that such a solution was an affront to reason. Not only for the person locked up, but perhaps even more so for his family, the end of the incarceration was an eagerly awaited and highly welcome event. That is quite understandable. It did justify petitioner's assertion that in so agreeing to the conditions imposed, he was not acting of his own free will. Realistically, he had no choice or one minimal at most. Nonetheless, it cannot be denied that he was a recipient of what at the very least was a clear manifestation of the Philippine brand of martial law being impressed with a mild character.

This being a habeas corpuspetition, the appropriate question for judicial inquiry is the validity of the limits set to the conditional release of petitioner Rodrigo. The guiding principle is supplied by this ringing affirmation of Justice Malcolm: "Any restraint which will preclude freedom of action is sufficient." 38 The implication for me is that there may be instances of the propriety of the invocation of the writ even without actual incarceration. This is one of them. It is heartening that the Court so views it. It is, to my mind, regrettable though that there appears to be full acceptance of the power of the military to impose restrictions on petitioner Rodrigo's physical liberty. There is need, it would seem to me, for a more discriminating appraisal, especially where it could be shown that the order to that effect proceeds from a source lower than the President. The extremely high respect justifiably accorded to the action taken by the highest official of the land, who by himself is a separate and independent department, not to mention the one constitutional official authorized to proclaim martial law, is not indicated. There should be, of course, no casual or unreasoned disregard for what the military may deem to be the appropriate measure under the circumstances. This reflection, though, gives me pause. Petitioner Rodrigo and others similarly situated were released. That step would not have been taken if circumstances did not justify it. It seems then reasonable to assume that full, rather than restricted, freedom was warranted. The matter may be put forth more categorically, but I refrain from doing so. The reason is practical. To insist that it should be thus may curb what appears to be the commendable tendency to put an end to the preventive detention of those in actual confinement. As for restraints on intellectual liberty embraced in freedom of speech and of press, of assembly, and of association, deference to controlling authorities compel me to say that the writ of habeas corpusis not the proper case for assailing them. It does not mean that judicial inquiry is foreclosed. Far from it. All that is intended to be conveyed is that this remedy does not lend itself to that purpose. In so advocating this approach, I am not unmindful that it might be looked upon as lack of awareness for the mischief that may be caused by irresponsible elements, not to say the rebels themselves. The words of Willoughby, whose view on martial law is the most sympathetic to the primacy of liberty, furnish the antidote: "As long as the emergency lasts then, they must upon pain of arrest and subsequent punishment refrain from committing acts that will render more difficult the restoration of a state of normalcy and the enforcement of law." 39

12. Reliance, as is quite evident from the foregoing, is well-nigh solely placed on Philippine authorities. While the persuasive character of American Constitutional law doctrines is not entirely a thing of the past, still, the novelty of the question before us, compels in my view deference to the trend indicated by our past decisions, read in the light not only of specific holdings but also of the broader principles on which they are based. Even if they do not precisely control, they do furnish a guide. Moreover, there seems to be a dearth of United States Supreme Court pronouncements on the subject of martial law, due no doubt to absence in the American Constitution of any provision concerning it.

It is understandable why no reference was made to such subject in the earliest classic on American constitutional law written by Justice Story. 40 When the landmark 1866 Milligan case 41 made its appearance, and much more so after Sterling 42 followed in 1932 and Duncan 43 in 1946, a discussion thereof became unavoidable So it is evident from subsequent commentaries and case books. 44 Cooley though, in his equally famous work that was first published in 1868 contented himself with footnote references to Milligan 45 Watson viewed it in connection with the suspension of the privilege of the writ of habeas corpus. 46 In the nineteen twenties, there was a fuller treatment of the question of martial law. Burdick anticipated Willoughby with this appraisal: "So-called martial law, except in occupied territory of an enemy, is merely the calling in of the aid of military forces by the executive, who is charged with the enforcement of the law, with or without special authorization by the legislature. Such declaration of martial law does not suspend the civil law, though it may interfere with the exercise of one's ordinary rights. The right to call out the military forces to maintain order and enforce the law is simply part of the police power. It is only justified when it reasonably appears necessary, and only justifies such acts as reasonably appear necessary to meet the exigency, including the arrest, or in extreme cases the killing of those who create the disorder or oppose the authorities. When the exigency is over the members of the military forces are criminally and civilly liable for acts done beyond the scope of reasonable necessity. When honestly and reasonably coping with a situation of insurrection or riot a member of the military forces cannot be made liable for his acts, and persons reasonably arrested under such circumstances will not, during the insurrection or riot, be free by writ of habeas corpus. 47

Willoughby, as already noted, was partial to the claims of liberty. This is quite evident in this excerpt in his opus: "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made. but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order, and that, while the emergency lasts, they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law. Some of the authorities stating substantially this doctrine are quoted in the footnote below. 48 Willis spoke similarly: "Martial law proper, that is, military law in case of insurrection, riots, and invasions, is not a substitute for the civil law, but is rather an aid to the execution of civil law. Declarations of martial law go no further than to warn citizens that the executive has called upon the military power to assist him in the maintenance of law and order. While martial law is in force, no new powers are given to the executive and no civil rights of the individual, other than the writ of habeas corpus, are suspended The relations between the citizen and his state are unchanged." 49

It is readily evident that even when Milligan supplied the only authoritative doctrine, Burdick and Willoughby did not ignore the primacy of civil liberties Willis wrote after Sterling. It would indeed be surprising if his opinion were otherwise. After Duncan, such an approach becomes even more strongly fortified. Schwartz, whose treatise is the latest to be published, has this summary of what he considers the present state of American law: "The Milligan and Duncan cases show plainly that martial law is the public law of necessity. Necessity alone calls it forth; necessity justifies its exercise; and necessity measures the extent and degree to which it may be employed. It is, the high Court has affirmed, an unbending rule of law that the exercise of military power, where the rights of the citizen are concerned, may never be pushed beyond what the exigency requires. If martial rule survives the necessity on which alone it rests, for even a single minute, it becomes a mere exercise of lawless violence." 50 Further: "Sterling v. Constantin is of basic importance. Before it, a number of decisions, including one by the highest Court, went on the theory that the executive had a free hand in taking martial-law measures. Under them, it had been widely supposed that a martial-law proclamation was so far conclusive that any action taken under it was immune from judicial scrutiny. Sterling v. Constantin definitely discredits these earlier decisions and the doctrine of conclusiveness derived from them. Under Sterling v. Constantin, where martial law measures impinge upon personal or property rights – normally beyond the scope of military power, whose intervention is lawful only because an abnormal situation has made it necessary – the executive's ipse dixit is not of itself conclusive of the necessity." 51

It is not to be lost sight of that the basis for the declaration of martial law in the Philippines is not mere necessity but an explicit constitutional provision. On the other hand, Milligan, which furnished the foundation for Sterling 52 and Duncan 53 had its roots in the English common law. There is pertinence therefore in ascertaining its significance under that system. According to the noted English author, Dicey: " ‘Martial law,' in the proper sense of that term, in which it means the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals, is unknown to the law of England. We have nothing equivalent to what is called in France the ‘Declaration of the State of Siege,' under which the authority ordinarily vested in the civil power for the maintenance of order and police passes entirely to the army (autorite militaire). This is an unmistakable proof of the permanent supremacy of the law under our constitution." 54 There was this qualification: "Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England. It is a power which has in itself no special connection with the existence of an armed force. The Crown has the right to put down breaches of the peace. Every subject, whether a civilian or a soldier, whether what is called a ‘servant of the government,' such for example as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist in putting down breaches of the peace. No doubt policemen or soldiers are the persons who, as being specially employed in the maintenance of order, are most generally called upon to suppress a riot, but it is clear that all loyal subjects are bound to take their part in the suppression of riots." 55

The picture would be incomplete, of course, if no reference were made to Rossiter. In his work on Constitutional Dictatorship, where he discussed crisis governments in the French Republic, in Great Britain and in the United States, he spoke of martial rule. For him, it "is an emergency device designed for use in the crises of invasion or rebellion. It may be most precisely defined as an extension of military government to the civilian population, the substitution of the will of a military commander for the will of the people's elected government. In the event of an actual or imminent invasion by a hostile power, a constitutional government may declare martial rule in the menaced area. The result is the transfer of all effective powers of government from the civil authorities to the military, or often merely the assumption of such powers by the latter when the regular government has ceased to function. In the event of a rebellion its initiation amounts to a governmental declaration of war on those citizens in insurrection against the state. In either case it means military dictatorship – government by the army, courts-martial, suspension of civil liberties, and the whole range of dictatorial action of an executive nature. In the modern democracies the military exercises such dictatorship while remaining subordinate and responsible to the executive head of the civil government. Martial rule has a variety of forms and pseudonyms, the most important of which are martial law, as it is known in the civil law countries of the British Empire and the United States, and the state of siege, as it is known in the civil law countries of continental Europe and Latin America. The state of siege and martial law are two edges to the same sword, and in action they can hardly be distinguished. The institution of martial rule is a recognition that there are times in the lives of all communities when crisis has so completely disrupted the normal workings of government that the military is the only power remaining that can restore public order and secure the execution of the laws." 56

Happily for the Philippines, the declaration of martial law lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz formulations paying due regard to the primacy of liberty possess relevance. It cannot be said that the martial rule concept of Rossiter, latitudinarian in scope, has been adopted, even on the assumption that it can be reconciled with our Constitution. What is undeniable is that President Marcos has repeatedly maintained that Proclamation No. 1081 was precisely based on the Constitution and that the validity of acts taken thereunder could be passed upon by the Supreme Court. For me, that is quite reassuring, persuaded as I am likewise that the view of Rossiter is opposed to the fundamental concept of our polity, which puts a premium on freedom. No undue concern need then be felt as to the continuing reliance on Moyer v. Peabody, 57 where Justice Holmes speaking for the Court, stated that the test of the validity of executive arrest is that they be made "in good faith and in the honest belief that they are needed in order to head the insurrection off . . ."58 He did state likewise: "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. See Keely v. Sanders, 99 US 441, 446, 25 L ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm." 59 Nor was this to manifest less than full regard for civil liberties. His other opinions indicated the contrary. More specifically, it was from his pen, in Chastleton Corporation v. Sinclair, 60 where the doctrine that the judiciary may inquire into whether the emergency was at an end, was given expression. Thus: "We repeat what was stated in Block v. Hirsh, . . ., as to the respect due to a declaration of this kind by the legislature so far as it relates to present facts. But, even as to them, a court is not a liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. . . . And still more obviously, so far as this declaration looks to the future, it can be no more than prophecy, and is liable to be controlled by events. A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change, even though valid when passed." 61

13. It may safely be concluded therefore that the role of American courts concerning the legality of acts taken during a period of martial law is far from minimal. Why it must be so was explained by Dean Rostow in this wise: "Unless the courts require a showing, in cases like these, of an intelligible relationship between means and ends, society has lost its basic protection against the abuse of military power. The general's good intention must be irrelevant. There should be evidence in court that his military judgment had a suitable basis in fact. As Colonel Fairman, a strong proponent of widened military discretion, points out: ‘When the executive fails or is unable to satisfy the court of the evident necessity for the extraordinary measures it has taken, it can hardly expect the court to assume it on faith." 62 This is the way Lasswell would summarize the matter: "On the whole, we can conclude that the courts of this country have a body of ancient principles and recent precedents that can be used to keep at a minimum unnecessary encroachments upon private rights by the executive, civil or military. The vigor and sensitiveness with which the due process clause has been affirmed in the last two decades is, in particular, an important development."63

14. It may be that the approach followed may for some be indicative of lack of full awareness of today's stern realities. It is my submission that to so view the transcendental issues before us is to adhere as closely as possible to the ideal envisioned in Ex parte Milligan: "The Constitution is a law for rulers and for people equally in war and peace and covers with the shield of its protection all classes of men at all times and under all circumstances." 64 It is ever timely to reiterate that at the core of constitutionalism is a robust concern for individual rights. This is not to deny that the judicial process does not take place in a social void. The questions that call for decision are to be examined in the total social context with full appreciation of the environmental facts, whether viewed in its temporal or other relevant aspects. They have to reconcile time tested principles to contemporary problems. Legal norms cannot always stand up against the pressure of events. The great unquestioned verities may thus prove to be less than adequate. So much is conceded. Nonetheless, even with the additional difficulty that the Court today is compelled to enter terrain with boundaries not so clearly defined, carrying with it the risk of exceeding the normal limits of judicial imprecision, I find myself unable to resist the compulsion of constitutional history and traditional doctrines. The facts and issues of the petitions before us and the mandates of the fundamental law, as I view them in the light of accepted concepts, blunt the edge of what otherwise could be considerations of decisive impact. I find myself troubled by the thought that, were it otherwise, it would amount to freezing the flux of the turbulent present with its grave and critical problems in the icy permanence of juristic doctrines. As of now, such an uncomfortable thought intrudes. Hence this brief concurring and dissenting opinion.

Endnotes:

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* The other petitioners are Joaquin P. Roces, Teodoro M. Locsin Rolando Fadul, Rosalind Galang, Go Eng Guan, Maximo V. Soliven, Renato Constantino, Luis R. Mauricio, Napoleon G. Rama, Jose Mari Velez, Ramon V. Mitra, Juan L. Mercado, Roberto Ordoñez, Manuel Almario, and Ernesto Rondon.

1. Chin Yow v. United States, 208 US 8, 13 (1908).

2. Secretary of State of Home Affairs v. O'Brien, A.C. 603, 609 (1923). As the writ originated in England, it may be of some interest to note that as early as 1220 the words habeat corpora appeared in an order directing an English sheriff to produce parties to a trespass action before the Court of Common Pleas. In succeeding centuries, the writ was made use of by way of procedural orders to ensure that parties be present at court proceedings.

3. Cf. Finnick v. Peterson, 6 Phil. 172 (1906); Jones v. Harding, 9 Phil. 279 (1907); Villaflor v. Summers, 41 Phil. 62 (1920); Carag v. Warden, 53 Phil. 85 (1929); Lopez v. De los Reyes, 55 Phil. 170 (1930); Estacio v. Provincial Warden, 69 Phil. 150 (1939); Arnault v. Nazareno, 87 Phil. 29 (1950); Arnault v. Balagtas, 97 Phil. 358 (1955).

4. Cf. Rubi v. Provincial Board, 39 Phil. 660 (1919).

5. Cf. Lorenzo v. Director of Health, 50 Phil. 595 (1927).

6. Cf. In re Carr, 1 Phil. 513 (1902); Mekin v. Wolfe, 2 Phil. 74 (1903); Cabantag v. Wolfe, 6 Phil. 273 (1906); In re Smith, 14 Phil. 112 (1909); Cabiling v. Prison Officer, 75 Phil. 1 (1945); Raquiza .v. Bradford, 75 Phil. 50 (1945); Reyes v. Crisologo, 75 Phil. 225 (1945); Yamashita v. Styer, 75 Phil. 563 (1945); Cantos v. Styer, 76 Phil. 748 (1946); Tubb and Tedrow v. Griess, 78 Phil. 249 (1947); Miquiabas v. Phil. Ryukyus Command, 80 Phil. 262 (1948); Dizon v. Phil. Ryukyus Command, 81 Phil. 286 (1948).

7. Cf. Lo Po v. McCoy, 8 Phil. 343 (1907); Lorenzo v. McCoy, 15 Phil. 559 (1910); Edwards v. McCoy, 22 Phil. 598 (1912); Que Quay v. Collector of Customs, 33 Phil. 128 (1916); Tan Me Nio v. Collector of Customs, 34 Phil. 944 (1916); Bayani v. Collector of Customs, 37 Phil. 468 (1918); In re McCulloch Dick, 38 Phil. 41 (1918); Mateo v. Collector of Customs, 63 Phil. 470 (1936); Chua v. Secretary of Labor, 68 Phil. 649 (1939); Villahermosa v. Commissioner of Immigration, 80 Phil. 541 (1948); Mejoff v. Director of Prisons, 90 Phil. 70 (1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107 (1951).

8. Cf. Reyes v. Alvarez, 8 Phil. 723 (1907); Lozano v. Martinez, 36 Phil. 976 (1917); Pelayo v. Lavin Aedo, 40 Phil. 501 (1919); Bancosta v. Doe, 46 Phil. 843 (1923); Sanchez de Strong v. Beishir, 53 Phil. 331 (1929); Makapagal v. Santamaria, 55 Phil. 418 (1930); Salvaña v. Gaela, 55 Phil. 680 (1931); Ortiz v. Del Villar, 57 Phil. 19 (1932); Flores v. Cruz, 99 Phil. 720 (1956); Murdock v. Chuidian, 99 Phil. 821 (1956).

9. As was so aptly put in an article written by the then Professor, now Solicitor General, Estelito Mendoza: "It is a well-known fact that the privilege of the writ of the habeas corpusis an indispensable remedy for the effective protection of individual liberty. This is more so when the infringement arises from government action. When liberty is threatened or curtailed by private individuals, only a loud cry (in fact, it need not even be loud) need be made, and the government steps in to prevent the threatened infringement or to vindicate the consummated curtailment. The action is often swift and effective; the results generally satisfactory and gratifying. But when the government itself is the ‘culprit', the cry need be louder, for the action is invariably made under color of law or cloaked with the mantle of authority. The privilege of the writ, however, because it may be made to bear upon governmental officers, assures that the individual's cry shall not, at least, be futile and vain." Mendoza, The Suspension of the Writ of Habeas Corpus: Suggested Amendments, 33 Philippine Law Journal, 630, 635 (1958).

10. Lansang v. Garcia, L-33964, December 11, 1971, 42 SCRA 448.

11. People v. Hernandez, 99 Phil. 515, 551-552 (1956). The reference was to the 1935 Constitution. It applies as well to the present Constitution.

12. Nava v. Gatmaitan, 90 Phil. 172, 194-195 (1951).

13. The five affirmative votes came from the then Chief Justice Paras and Justices Bengzon, Tuason, Reyes and Jugo. The negative votes were cast by Justices Feria, Pablo, Padilla, and Bautista Angelo.

14. Laurel, S., ed., III Proceedings of the Philippine Constitutional Convention 334 (1966).

15. Marcos, Today's Revolution: Democracy 29 (1971).

16. Alzona, ed., Quotations from Rizal's Writings 72 (1962).

17. Mabini, The Philippine Revolution 10 (1969).

18. Cf. Preamble of the present Constitution as well as that of the 1935 Constitution.

19. Cf. Laski, Liberty in the Modern State 34 (1949).

20. Proclamation No. 1081, September 21, 1972.

21. Cf. Tañada v. Cuenco, 103 Phil. 1051 (1957).

22. Cf. Alejandrino v. Quezon, 46 Phil. 83 (1924); Vera v Avelino, 77 Phil. 192 (1946); Avelino v. Cuenco, 83 Phil. 17, Resolution of March 4, 1949.

23. Cf. Morrero v. Bocar, 66 Phil. 429 (1938); Aytona v. Castillo, L-19313, January 19, 1962, 4 SCRA 1; Rodriguez v. Quirino, L-19800, October 28, 1963, 9 SCRA 284.

24. Cf. Lansang v. Garcia, L-33964, December 11, 1971 42 SCRA 448.

25. Cf. According to Article VII, Section 10, par. (2) of the 1935 Constitution: "The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law." The relevant provision of the present Constitution is found in Article IX, Section 12. It reads thus: "The Prime Minister shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."cralaw virtua1aw library

26. Proclamation No. 1081, September 21, 1972.

27. Lansang v. Garcia, L-33964, December 11, 1971, 42 SCRA 448, 473-474.

28. Ibid, 474-475.

29. Ibid, 505-506.

30. Ibid, 479-480.

31. Ibid, 507-508.

32. Article XVII, Section 3, par. (2) of the Constitution.

33. Ibid.

34. 93 Phil. 68 (1953).

35. Republic Act No. 342 (1948).

36. 93 Phil. 68, 82.

37. Bridges v. California, 314 US 252, 304-305.

38. Villavicencio v. Lukban, 39 Phil. 778, 790 (1919).

39. 3 Willoughby on the Constitution of the United States, 1591 (1929).

40. Story, Commentaries on the Constitution of the United States, 3rd ed. (1858).

41. Ex parte Milligan, 4 Wall. 2.

42. Sterling v. Constantin, 287 US 378.

43. Duncan v. Kahanamoku, 327 US 304.

44. Cf. Dodd, Cases on Constitutional Law, 520-528 (1949); Dowling, Cases on Constitutional Laws, 446-456 (1950); Sholley, Cases on Constitutional Law, 285-295 (1951); Frank, Cases on Constitutional Law, 257-261, 270 (1952); Freund, Sutherland, Howe, Brown, Constitutional Law, 1646-1651, 1679-1693 (1954); Barrett, Bruton, Honnold, Constitutional Law, 1302-1308 (1963); Kauper, Constitutional Law, 276-284 (1966); Lockhart, Kamisar, Choper, Constitutional Law, 1411-1418 (1970).

45. 1 Cooley, Constitutional Limitations, 8th ed., 637, 758 (1926).

46. Watson on the Constitution of the United States (1910).

47. Burdick, The Law of the American Constitution, 261 (1922).

48. Willoughby on the Constitution of the United States, 2nd ed., 1591 (1929).

49. Willis on Constitutional Law, 449 (1936).

50. Schwartz, II The Powers of Government, 244 (1963).

51. Ibid, 246.

52. 287 US 378, 402-403 (1932).

53. 327 US 304, 322 (1946). The concurring opinion of Justice Murphy was similarly generous in its reference to Milligan. It is not to be lost sight of that the statutory provision in question was Section 67 of the Organic Act of Hawaii when it was still a territory. Nonetheless, since according to Justice Black, its language as well as its legislative history failed to indicate the scope of martial law, its interpretation was in accordance with the American constitutional tradition as embodied in Milligan.

54. Dicey, The Law of the Constitution, 287-288 (1962).

55. Ibid, 288.

56. Rossiter, Constitutional dictatorship, 9 (1948).

57. 212 US 78 (1909).

58. Ibid, 85.

59. Ibid.

60. 264 US 543 (1924).

61. Ibid, 547-548.

62. Rostow, The Sovereign Prerogative, 235 (1963). The work of Fairman quoted is to Law of Martial Rule, 217-218 (1943).

63. Lasswell, National Security and Individual Freedom, 151 (1950).

64. 4 Wall. 123 (1866).