Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

70748 October 21, 1985 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF LAURENTE C. ILAGAN, ANTONIO B. ARELLANO, and MARCOS D. RISONAR, JR., Integrated Bar of the Philippines [IBP]; Free Legal Assistance Group [FLAG] and Movement of Attorneys For Brotherhood, Integrity and Nationalism, Inc., [MABINI], petitioners, vs. HON. JUAN PONCE ENRILE, Minister of National Defense; LT. GEN. FIDEL V. RAMOS, Acting Chief of Staff, Armed Forces of the Philippines; BRIG. GEN. DIONISIO TAN-GATUE, PC-INP Regional Commander for Region XI, Camp Catitipan, Davao City, respondents. Roberto Concepcion, Jose B.L. Reyes, Raul S. Goco, Joker Arroyo, Haydee Yorac, Fulgencio S. Factoran, Francisco I. Chavez , Lorenzo M. Taada, Wigberto Taada and Martiniano Vivo for petitioners. The Solicitor General for respondents.

In their Return, respondents contended that the detained attorneys were arrested on the basis of a PDA issued by the President on January 25, 1985; that the Writ of habeas corpus is suspended as to them by virtue of Proclamation No. 2045-A; and that pursuant to the ruling in Garcia-Padilla vs. Ponce Enrile, et al, 1 Courts lack the authority to inquire into the cause and validity of detention of persons held pursuant to the suspension. Respondents further expounded on the state of rebellion in Davao City on the basis of seized subversive documents, implying that the detained attorneys played active roles in organizing mass actions of the Communist Party of the Philippines and the National Democratic Front. Respondents then prayed for the denial of the petition. During the hearing on May 23, 1985, the detained attorneys narrated to the Court the circumstances of their arrest and detention. Counsel for the respondents, on the other hand, presented evidence of subversive activities in Davao, but due to lack of evidence linking the detained attorneys with the alleged subversive activities, the Court, on the same day resolved to order the temporary release of the detained attorneys on the recognizance of the principal counsel of petitioner's, namely, retired Chief Justice Roberto Concepcion and retired Associate Justice J.B.L. Reyes. The Court further resolved to give petitioners ten days within which to file a traverse to the Return of the Writ and the respondents ten days to file a Reply thereto. The next day, or on May 24, 1985, petitioners filed a Manifestation and Motion stating that the detained attorneys had not yet been released and praying that they be released to the custody of the principal counsel of petioners at the Supreme Court. On May 27, 1985, respondents filed an Urgent Motion for Reconsideration of this Court's Order of Release reiterating that the suspension of the Writ of Habeas Corpus has the effect of ousting the Court of its jurisdiction to hear the case, and attached thereto classified documents consisting of the Report of respondent Brig. Gen. Tan-Gatue stating that the detained attorneys "were arrested not on the basis of their 'lawyering' but for specific acts of rebellion and economic sabotage as well as for their leadership in the CPP" ... "even to the extent of attending CPP and NPA rites and using their profession as lawyers as cover-up for their activities in furtherance of CPP goals and objectives;" and that the detained attorneys were involved in the Welgang Bayan in Davao City, a mass action "with demands for the armed overthrow of the government." Sworn statements of several persons also implicated the detained attorneys in alleged subversive activities. Respondents added that, while there is a Court Order directing release, they, too, are under orders, pursuant to the PDA, to hold in custody the detained attorneys until ordered released by the President or by his duly authorized representative, and that the PDA, when issued, constitutes authority to preventively detain them for a period not exceeding one year. On May 28, 1985, respondents filed an Urgent Manifestation/Motion stating that an Information for Rebellion was filed on May 27, 1985 against the detained attorneys before the Regional Trial Court of Davao City, Branch X, docketed as Criminal Case No. 12,349; that a Warrant of Arrest had been issued against them; and praying that this Petition be dismissed for having been rendered moot and academic. On May 30, 1985, petitioners filed an Opposition to respondents' Urgent Motion/Manifestation contending that since the detained attorneys were not given the benefit of preliminary investigation, they were denied their constitutional right to due process; consequently, the Information for Rebellion filed against them is void. Respondents, on the other hand, filed on the same day a Comment to petitioners' Manifestation and Motion reiterating their prayer for the dismissal of the petition on the ground of mootness by virtue of the proceedings before the Regional Trial Court of Davao. On June 3, 1985, petitioners filed a consolidated Comment and Traverse contending that the "Welgang Bayans" were in legitimate exercise of the constitutional right of expression and assembly to petition the government for redress of grievances; that the detained attorneys' participation was limited to serving in the legal panel and the negotiating panels; that Proclamation No. 2045 is unconstitutional because there exists no factual or legal basis for the suspension of the Writ of Habeas Corpus as provided for in the Constitution; that

MELENCIO-HERRERA, J.: This is a petition for Habeas Corpus filed by the Integrated Bar of the Philippines (IBP), the Free Legal Assistance Group (FLAG); and the Movement of Attorneys for Brotherhood, Integrity and Nationalism (MABINI) on behalf of Attorneys Laurente C. Ilagan, Antonio B. Arellano, and Marcos Risonar, Jr. The facts follow: On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission Order allegedly issued by the Ministry of National Defense. On that same day, fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. One of the visiting lawyers, Atty. Antonio Arellano, was also arrested and detained on the basis of an unsigned Mission Order. On May 13, 1985, the military sent word to the IBP Davao Chapter that Attorney Marcos Risonar would likewise be arrested. The latter went to Camp Catitipan to verify his arrest papers and was detained on the basis of a Mission Order signed by General Echavarria, Regional Unified Commander. This petition for habeas corpus was then filed by and on behalf of the three arrested lawyers hereinafter referred to as the detained attorneys on the ground that their arrests were illegal and violative of the Constitution, since arrests cannot be made on the basis of Mission Orders. and that there appears to be a military campaign to harass lawyers involved in national security cases. On May 16, 1985, the Court issued the Writ, required a Return, and set the petition for hearing on May 23, 1985.

the evidence presented by respondents against the detained attorneys are of a doubtful and flimsy nature; and that the PDA is unconstitutional because it violates Section 3, Article IV, of the Constitution prohibiting unreasonable searches and seizures. On July 1, 1985, petitioners filed a Manifestation and Motion praying that the Court immediately resolve the issues raised as the case affects not only the detained attorneys but the entire legal profession and the administration of justice as well. Finally, after two extensions granted by the Court, on July 8, 1985, respondents filed a Consolidated Reply, reiterating first, the validity of Proclamation No. 2045, as amended by Proclamation No. 2045-A and of the PDA issued against petitioners as an incident to the suspension of the privilege of the Writ of habeas corpus: secondly, the ruling in Garcia-Padilla vs. Ponce Enrile, et al.; 2 and thirdly, its prayer for the dismissal of the petition on the ground of mootness by virtue of the filing of an Information for Rebellion against the detained attorneys before the Regional Trial Court of Davao City . As contended by respondents, the petition herein has been rendered moot and academic by virtue of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial Court of Davao City and the issuance of a Warrant of Arrest against them. 3 The function of the special proceeding of habeas corpus is to inquire into the legality of one's detention. Now that the detained attorneys' incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed against them before the Regional Trial Couravao City, the remedy of habeas corpus no longer lies. The Writ had served its purpose. 4 SEC. 4. When writ not allowed or discharge authorized.-If it appears the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment, or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order. Nor shall anything in this rule be held to authorize to discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment. (Rule 102) If the detained attorneys question their detention because of improper arrest, or that no preliminary investigati n has been conducted, the remedy is not a petition for a Writ of Habeas Corpus but a Motion before the trial court to quash the Warrant of Arrest, and /or the Information on grounds provided by the Rules or to ask for an investigation / reinvestigation of the case. 5 Habeas corpus would not lie after the Warrant of commitment was issued by the Court on the basis of the Information filed against the accused. 6 So is it explicitly provided for by Section. 14, Rule of 102 of the Rules of Court, reading: SEC. 14. When person lawfully imprisoned recommitted and when let to bail.- If it appears that the prisoner was lawfully committed, and is plainly and specifically charged in the warrant of commitment with an offense punishable by death, he shall not be released, discharged, or bailed. If he is lawfully imprisoned or restrained on a charge of having committed an offense not so punishable, he may be recommitted to imprisonment or admitted to bail in the discretion of the court or judge. . . . But petitioners submit that because of the absence of a preliminary investigation, the Information for Rebellion filed against the detained attorneys is void and the Court below could not have acquired jurisdiction over them, and consequently, they are entitled to release.

On the other hand, respondents contend that a preliminary investigation was unnecessary since the detained attorneys were lawfully arrested without a warrant. Pursuant to the 1985 Rules on Criminal Procedure, no Information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted, except as provided for in Section 7 of Rule 112. 7 The Information filed by the City Fiscal before the Regional Trial Court of the City of Davao fell within the exception. Thus, the Verification reads: VERIFICATION I HEREBY CERTIFY that I am filing this Information in pursuance with Rule 112, Section 7 of the 1985 Rules on criminal Procedure, wherein after examining the affidavits of the government witnesses and other documents attached to the records, I found sufficient ground to hold respondents for trial. (SGD.) EMMANUEL E. GALICIA City Fiscal Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to provides: SEC. 7. When accused lawfully arrested without warrant.- When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without preliminary investigation having been first conducted on the basis of the affidavit of the offended party or arrested officer or person. However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception. If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. Section 5, Rule 113 of the same Rules enumerates the instances when an arrest without warrant is lawful. SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs [al and [b] hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (Rule 113) Paragraphs (a) and (b) refer to cases when a suspect is caught in flagrante delicto or immediately thereafter, while paragraph (c) refers to escaping prisoners. As to whether the detained attorneys fall under either of the first two instances enumerated is a question of fact, which will need the presentation of evidence and is more properly within the province of the trial Court. The question of absence of a proper preliminary investigation is also better inquired into by the Court below. When so raised, this Court, speaking through Mr. Justice Claudio Teehankee, has held that the trial Court is called upon "not to dismiss the information but hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. 8 As stressed in People vs. Casiano, 1 SCRA 478 [1961], this is the proper procedure since the "absence of such investigation did not impair the validity of the Information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First Instance". 9 The right to a preliminary investigation, being waivable, does not argue against the validity of the proceedings, the most that could have been done being to remand the case in order that such investigation could be conducted. 10 ... The proper forum before which absence of preliminary investigation should be ventilated is the Court of First Instance, not this Court. Reason is not wanting for this view. Absence of preliminary investigation does not go to the jurisdiction of the court but merely to the regularity of the proceedings. It could even be waived. Indeed, it is frequently waived. These are matters to be inquired into by the trial court, not an appellate Court. 11 The Nolasco case, which petitioners invoke, 12 wherein this Court ordered the release of two of the accused, is not on all fours with the case at bar as, in that case, the accused were charged only with Illegal Possession of Subversive documents under Presidential Decree No. 33, which is punishable by prision correccional in its minimum period, and the trial Court had granted bail; whereas in this case, petitioners are charged with the capital offense of Rebellion, and the trial Court has not allowed bail. WHEREFORE, this petition for Habeas Corpus is hereby dismissed for having become moot and academic. Petitioners are now detained by virtue of a Warrant of Arrest issued by the Regional Trial Court of Davao City in relation to the criminal case for Rebellion filed against them before said Court. SO ORDERED.