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Constitution EN BANC
Statutes
G.R. No. 92163 June 5, 1990
Jurisprudence
IN THE
Judicial MATTER OF THE PETITION FOR HABEAS CORPUS. JUAN PONCE ENRILE, petitioner
Issuances
vs.
Executive Issuances
JUDGE JAIME SALAZAR (Presiding Judge of the Regional Trial Court of Quezon City [Br. 103], SENIOR
Treatise
STATE PROSECUTOR AURELIO TRAMPE, PROSECUTOR FERDINAND R. ABESAMIS, AND CITY
Legal Link
ASSISTANT CITY PROSECUTOR EULOGIO MANANQUIL, NATIONAL BUREAU OF INVESTIGATION
DIRECTOR ALFREDO LIM, BRIG. GEN. EDGAR DULA TORRES (Superintendent of the Northern Police
District) AND/ OR ANY AND ALL PERSONS WHO MAY HAVE ACTUAL CUSTODY OVER THE PERSON OF
JUAN PONCE ENRILE, respondents.

G.R. No. 92164 June 5, 1990

SPS. REBECCO E. PANLILIO AND ERLINDA E. PANLILIO, petitioners,

vs.
PROSECUTORS FERNANDO DE LEON, AURELIO C. TRAMPE, FFRDINAND R. ABESAMIS, AND EULOGIO C.
MANANQUIL, and HON. JAIME W. SALAZAR, JR., in his capacity as Presiding Judge, Regional Trial Court,
Quezon City, Branch 103, respondents.

NARVASA, J.:

Thirty-four years after it wrote history into our criminal jurisprudence, People vs. Hernandez 1 once more takes center
stage as the focus of a confrontation at law that would re-examine, if not the validity of its doctrine, the limits of its
applicability. To be sure, the intervening period saw a number of similar cases 2 that took issue with the ruling-all with a
marked lack of success-but none, it would Beem, where season and circumstance had more effectively conspired to attract
wide public attention and excite impassioned debate, even among laymen; none, certainly, which has seen quite the kind and
range of arguments that are now brought to bear on the same question.

The facts are not in dispute. In the afternoon of February 27, 1990, Senate Minority Floor Leader Juan Ponce Enrile
was arrested by law enforcement officers led by Director Alfredo Lim of the National Bureau of Investigation on the
strength of a warrant issued by Hon. Jaime Salazar of the Regional Trial Court of Quezon City Branch 103, in
Criminal Case No. 9010941. The warrant had issued on an information signed and earlier that day filed by a panel
of prosecutors composed of Senior State Prosecutor Aurelio C. Trampe, State Prosecutor Ferdinand R. Abesamis
and Assistant City Prosecutor Eulogio Mananquil, Jr., charging Senator Enrile, the spouses Rebecco and Erlinda
Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly
committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile
was taken to and held overnight at the NBI headquarters on Taft Avenue, Manila, without bail, none having been
recommended in the information and none fixed in the arrest warrant. The following morning, February 28, 1990, he
was brought to Camp Tomas Karingal in Quezon City where he was given over to the custody of the Superintendent
of the Northern Police District, Brig. Gen. Edgardo Dula Torres. 3

On the same date of February 28, 1990, Senator Enrile, through counsel, filed the petition for habeas corpus herein
(which was followed by a supplemental petition filed on March 2, 1990), alleging that he was deprived of his
constitutional rights in being, or having been:

(a) held to answer for criminal offense which does not exist in the statute books;

(b) charged with a criminal offense in an information for which no complaint was initially filed or
 preliminary investigation was conducted, hence was denied due process;

(c) denied his right to bail; and

(d) arrested and detained on the strength of a warrant issued without the judge who issued it first
having personally determined the existence of probable cause. 4

The Court issued the writ prayed for, returnable March 5, 1990 and set the plea for hearing on March 6, 1990. 5 On
March 5, 1990, the Solicitor General filed a consolidated return 6 for the respondents in this case and in G.R. No. 92164 7
Which had been contemporaneously but separately filed by two of Senator Enrile's co-accused, the spouses Rebecco and
Erlinda Panlilio, and raised similar questions. Said return urged that the petitioners' case does not fall within the Hernandez
ruling because-and this is putting it very simply-the information in Hernandez charged murders and other common crimes
committed as a necessary means for the commission of rebellion, whereas the information against Sen. Enrile et al. charged
murder and frustrated murder committed on the occasion, but not in furtherance, of rebellion. Stated otherwise, the Solicitor
General would distinguish between the complex crime ("delito complejo") arising from an offense being a necessary means
for committing another, which is referred to in the second clause of Article 48, Revised Penal Code, and is the subject of the
Hernandez ruling, and the compound crime ("delito compuesto") arising from a single act constituting two or more grave or
less grave offenses referred to in the first clause of the same paragraph, with which Hernandez was not concerned and to
which, therefore, it should not apply.

The parties were heard in oral argument, as scheduled, on March 6, 1990, after which the Court issued its
Resolution of the same date 8 granting Senator Enrile and the Panlilio spouses provisional liberty conditioned upon their
filing, within 24 hours from notice, cash or surety bonds of P100,000.00 (for Senator Enrile) and P200,000.00 (for the
Panlilios), respectively. The Resolution stated that it was issued without prejudice to a more extended resolution on the
matter of the provisional liberty of the petitioners and stressed that it was not passing upon the legal issues raised in both
cases. Four Members of the Court 9 voted against granting bail to Senator Enrile, and two 10 against granting bail to the
Panlilios.

The Court now addresses those issues insofar as they are raised and litigated in Senator Enrile's petition, G.R. No.
92163.

The parties' oral and written pleas presented the Court with the following options:

(a) abandon Hernandez and adopt the minority view expressed in the main dissent of Justice
Montemayor in said case that rebellion cannot absorb more serious crimes, and that under Article 48 of
the Revised Penal Code rebellion may properly be complexed with common offenses, so-called; this
option was suggested by the Solicitor General in oral argument although it is not offered in his written
pleadings;

(b) hold Hernandez applicable only to offenses committed in furtherance, or as a necessary means for
the commission, of rebellion, but not to acts committed in the course of a rebellion which also constitute
"common" crimes of grave or less grave character;

(c) maintain Hernandez as applying to make rebellion absorb all other offenses committed in its course,
whether or not necessary to its commission or in furtherance thereof.

On the first option, eleven (11) Members of the Court voted against abandoning Hernandez. Two (2) Members felt
that the doctrine should be re-examined. 10-A In the view of the majority, the ruling remains good law, its substantive and
logical bases have withstood all subsequent challenges and no new ones are presented here persuasive enough to warrant
a complete reversal. This view is reinforced by the fact that not too long ago, the incumbent President, exercising her powers
under the 1986 Freedom Constitution, saw fit to repeal, among others, Presidential Decree No. 942 of the former regime
which precisely sought to nullify or neutralize Hernandez by enacting a new provision (Art. 142-A) into the Revised Penal
Code to the effect that "(w)hen by reason, or on the occasion, of any of the crimes penalized in this Chapter (Chapter I of
Title 3, which includes rebellion), acts which constitute offenses upon which graver penalties are imposed by law are
committed, the penalty for the most serious offense in its maximum period shall be imposed upon the offender."' 11 In thus
acting, the President in effect by legislative flat reinstated Hernandez as binding doctrine with the effect of law. The Court can
do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

On the second option, the Court unanimously voted to reject the theory that Hernandez is, or should be, limited in its
application to offenses committed as a necessary means for the commission of rebellion and that the ruling should
not be interpreted as prohibiting the complexing of rebellion with other common crimes committed on the occasion,
but not in furtherance, thereof. While four Members of the Court felt that the proponents' arguments were not
entirely devoid of merit, the consensus was that they were not sufficient to overcome what appears to be the real
thrust of Hernandez to rule out the complexing of rebellion with any other offense committed in its course under
either of the aforecited clauses of Article 48, as is made clear by the following excerpt from the majority opinion in
that case:

There is one other reason-and a fundamental one at that-why Article 48 of our Penal Code cannot be
applied in the case at bar. If murder were not complexed with rebellion, and the two crimes were
punished separately (assuming that this could be done), the following penalties would be imposable
upon the movant, namely: (1) for the crime of rebellion, a fine not exceeding P20,000 and prision
mayor, in the corresponding period, depending upon the modifying circumstances present, but never
exceeding 12 years of prision mayor, and (2) for the crime of murder, reclusion temporal in its
maximum period to death, depending upon the modifying circumstances present. in other words, in the
absence of aggravating circumstances, the extreme penalty could not be imposed upon him. However,
under Article 48 said penalty would have to be meted out to him, even in the absence of a single
aggravating circumstance. Thus, said provision, if construed in conformity with the theory of the
prosecution, would be unfavorable to the movant.

Upon the other hand, said Article 48 was enacted for the purpose of favoring the culprit, not of
sentencing him to a penalty more severe than that which would be proper if the several acts performed
by him were punished separately. In the words of Rodriguez Navarro:

La unificacion de penas en los casos de concurso de delitos a que hace referencia este
articulo (75 del Codigo de 1932), esta basado francamente en el principio pro reo.' (II
Doctrina Penal del Tribunal Supremo de Espana, p. 2168.)

We are aware of the fact that this observation refers to Article 71 (later 75) of the Spanish Penal Code
(the counterpart of our Article 48), as amended in 1908 and then in 1932, reading:

Las disposiciones del articulo anterior no son aplicables en el caso de que un solo hecho
constituya dos o mas delitos, o cuando el uno de ellos sea medio necesario para cometer
el otro.

En estos casos solo se impondra la pena correspondiente al delito mas grave en su grado
maximo, hasta el limite que represents la suma de las que pudieran imponerse, penando
separadamente los delitos.

Cuando la pena asi computada exceda de este limite, se sancionaran los delitos por
separado. (Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, Vol. II, p. 2163)

and that our Article 48 does not contain the qualification inserted in said amendment, restricting the
imposition of the penalty for the graver offense in its maximum period to the case when it does not
exceed the sum total of the penalties imposable if the acts charged were dealt with separately. The
absence of said limitation in our Penal Code does not, to our mind, affect substantially the spirit of said
Article 48. Indeed, if one act constitutes two or more offenses, there can be no reason to inflict a
punishment graver than that prescribed for each one of said offenses put together. In directing that the
penalty for the graver offense be, in such case, imposed in its maximum period, Article 48 could have
had no other purpose than to prescribe a penalty lower than the aggregate of the penalties for each
offense, if imposed separately. The reason for this benevolent spirit of article 48 is readily discernible.
When two or more crimes are the result of a single act, the offender is deemed less perverse than
when he commits said crimes thru separate and distinct acts. Instead of sentencing him for each crime
independently from the other, he must suffer the maximum of the penalty for the more serious one, on
the assumption that it is less grave than the sum total of the separate penalties for each offense. 12

The rejection of both options shapes and determines the primary ruling of the Court, which is that Hernandez
remains binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the
occasion thereof, either as a means necessary to its commission or as an unintended effect of an activity that
constitutes rebellion.

This, however, does not write finis to the case. Petitioner's guilt or innocence is not here inquired into, much less
adjudged. That is for the trial court to do at the proper time. The Court's ruling merely provides a take-off point for
the disposition of other questions relevant to the petitioner's complaints about the denial of his rights and to the
propriety of the recourse he has taken.

The Court rules further (by a vote of 11 to 3) that the information filed against the petitioner does in fact charge an
offense. Disregarding the objectionable phrasing that would complex rebellion with murder and multiple frustrated
murder, that indictment is to be read as charging simple rebellion. Thus, in Hernandez, the Court said:

In conclusion, we hold that, under the allegations of the amended information against defendant-
 appellant Amado V. Hernandez, the murders, arsons and robberies described therein are mere
ingredients of the crime of rebellion allegedly committed by said defendants, as means "necessary" (4)
for the perpetration of said offense of rebellion; that the crime charged in the aforementioned amended
information is, therefore, simple rebellion, not the complex crime of rebellion with multiple murder,
arsons and robberies; that the maximum penalty imposable under such charge cannot exceed twelve
(12) years of prision mayor and a fine of P2H,HHH; and that, in conformity with the policy of this court
in dealing with accused persons amenable to a similar punishment, said defendant may be allowed
bail. 13

The plaint of petitioner's counsel that he is charged with a crime that does not exist in the statute books, while
technically correct so far as the Court has ruled that rebellion may not be complexed with other offenses committed
on the occasion thereof, must therefore be dismissed as a mere flight of rhetoric. Read in the context of Hernandez,
the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code:
simple rebellion.

Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation
conducted? The record shows otherwise, that a complaint against petitioner for simple rebellion was filed by the
Director of the National Bureau of Investigation, and that on the strength of said complaint a preliminary
investigation was conducted by the respondent prosecutors, culminating in the filing of the questioned information.
14 There is nothing inherently irregular or contrary to law in filing against a respondent an indictment for an offense different
from what is charged in the initiatory complaint, if warranted by the evidence developed during the preliminary investigation.

It is also contended that the respondent Judge issued the warrant for petitioner's arrest without first personally
determining the existence of probable cause by examining under oath or affirmation the complainant and his
witnesses, in violation of Art. III, sec. 2, of the Constitution. 15 This Court has already ruled, however, that it is not the
unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure
by personally evaluating the report and the supporting documents submitted by the prosecutor. 16 Petitioner claims that the
warrant of arrest issued barely one hour and twenty minutes after the case was raffled off to the respondent Judge, which
hardly gave the latter sufficient time to personally go over the voluminous records of the preliminary investigation. 17 Merely
because said respondent had what some might consider only a relatively brief period within which to comply with that duty,
gives no reason to assume that he had not, or could not have, so complied; nor does that single circumstance suffice to
overcome the legal presumption that official duty has been regularly performed.

Petitioner finally claims that he was denied the right to bail. In the light of the Court's reaffirmation of Hernandez as
applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be
considered as charging only the crime of simple rebellion, which is bailable before conviction, that must now be
accepted as a correct proposition. But the question remains: Given the facts from which this case arose, was a
petition for habeas corpus in this Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The criminal case before the respondent Judge was the normal venue for invoking the petitioner's right to have
provisional liberty pending trial and judgment. The original jurisdiction to grant or deny bail rested with said
respondent. The correct course was for petitioner to invoke that jurisdiction by filing a petition to be admitted to bail,
claiming a right to bail per se by reason of the weakness of the evidence against him. Only after that remedy was
denied by the trial court should the review jurisdiction of this Court have been invoked, and even then, not without
first applying to the Court of Appeals if appropriate relief was also available there.

Even acceptance of petitioner's premise that going by the Hernandez ruling, the information charges a non-existent
crime or, contrarily, theorizing on the same basis that it charges more than one offense, would not excuse or justify
his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash
brought in the criminal action before the respondent Judge. 18

There thus seems to be no question that All the grounds upon which petitioner has founded the present petition,
whether these went into the substance of what is charged in the information or imputed error or omission on the part
of the prosecuting panel or of the respondent Judge in dealing with the charges against him, were originally
justiciable in the criminal case before said Judge and should have been brought up there instead of directly to this
Court.

There was and is no reason to assume that the resolution of any of these questions was beyond the ability or
competence of the respondent Judge-indeed such an assumption would be demeaning and less than fair to our trial
courts; none whatever to hold them to be of such complexity or transcendental importance as to disqualify every
court, except this Court, from deciding them; none, in short that would justify by passing established judicial
processes designed to orderly move litigation through the hierarchy of our courts. Parenthentically, this is the reason
behind the vote of four Members of the Court against the grant of bail to petitioner: the view that the trial court
should not thus be precipitately ousted of its original jurisdiction to grant or deny bail, and if it erred in that matter,
denied an opportunity to correct its error. It makes no difference that the respondent Judge here issued a warrant of
arrest fixing no bail. Immemorial practice sanctions simply following the prosecutor's recommendation regarding
bail, though it may be perceived as the better course for the judge motu proprio to set a bail hearing where a capital
offense is charged. 19 It is, in any event, incumbent on the accused as to whom no bail has been recommended or fixed to
claim the right to a bail hearing and thereby put to proof the strength or weakness of the evidence against him.

It is apropos to point out that the present petition has triggered a rush to this Court of other parties in a similar
situation, all apparently taking their cue from it, distrustful or contemptuous of the efficacy of seeking recourse in the
regular manner just outlined. The proliferation of such pleas has only contributed to the delay that the petitioner may
have hoped to avoid by coming directly to this Court.

Not only because popular interest seems focused on the outcome of the present petition, but also because to wash
the Court's hand off it on jurisdictional grounds would only compound the delay that it has already gone through, the
Court now decides the same on the merits. But in so doing, the Court cannot express too strongly the view that said
petition interdicted the ordered and orderly progression of proceedings that should have started with the trial court
and reached this Court only if the relief appealed for was denied by the former and, in a proper case, by the Court of
Appeals on review.

Let it be made very clear that hereafter the Court will no longer countenance, but will give short shrift to, pleas like
the present, that clearly short-circuit the judicial process and burden it with the resolution of issues properly within
the original competence of the lower courts. What has thus far been stated is equally applicable to and decisive of
the petition of the Panlilio spouses (G.R. No. 92164) which is virtually Identical to that of petitioner Enrile in factual
milieu and is therefore determinable on the same principles already set forth. Said spouses have uncontestedly
pleaded 20 that warrants of arrest issued against them as co-accused of petitioner Enrile in Criminal Case No. 90-10941,
that when they appeared before NBI Director Alfredo Lim in the afternoon of March 1, 1990, they were taken into custody and
detained without bail on the strength of said warrants in violation-they claim-of their constitutional rights.

It may be that in the light of contemporary events, the act of rebellion has lost that quitessentiany quixotic quality
that justifies the relative leniency with which it is regarded and punished by law, that present-day rebels are less
impelled by love of country than by lust for power and have become no better than mere terrorists to whom nothing,
not even the sanctity of human life, is allowed to stand in the way of their ambitions. Nothing so underscores this
aberration as the rash of seemingly senseless killings, bombings, kidnappings and assorted mayhem so much in the
news these days, as often perpetrated against innocent civilians as against the military, but by and large attributable
to, or even claimed by so-called rebels to be part of, an ongoing rebellion.

It is enough to give anyone pause-and the Court is no exception-that not even the crowded streets of our capital City
seem safe from such unsettling violence that is disruptive of the public peace and stymies every effort at national
economic recovery. There is an apparent need to restructure the law on rebellion, either to raise the penalty therefor
or to clearly define and delimit the other offenses to be considered as absorbed thereby, so that it cannot be
conveniently utilized as the umbrella for every sort of illegal activity undertaken in its name. The Court has no power
to effect such change, for it can only interpret the law as it stands at any given time, and what is needed lies beyond
interpretation. Hopefully, Congress will perceive the need for promptly seizing the initiative in this matter, which is
properly within its province.

WHEREFORE, the Court reiterates that based on the doctrine enunciated in People vs. Hernandez, the questioned
information filed against petitioners Juan Ponce Enrile and the spouses Rebecco and Erlinda Panlilio must be read
as charging simple rebellion only, hence said petitioners are entitled to bail, before final conviction, as a matter of
right. The Court's earlier grant of bail to petitioners being merely provisional in character, the proceedings in both
cases are ordered REMANDED to the respondent Judge to fix the amount of bail to be posted by the petitioners.
Once bail is fixed by said respondent for any of the petitioners, the corresponding bail bond flied with this Court shall
become functus oficio. No pronouncement as to costs.

SO ORDERED.

Cruz, Gancayco and Regalado, JJ., concur.

Medialdea, J., concurs in G.R. No. 92164 but took no part in G.R. No. 92163.

Cortes and Grio-Aquino, JJ., are on leave.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades,
remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only
served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been
plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime
which does not exist in our statute books. The charge was obviously intended to make the penalty for the most
serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal
Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by
the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not
have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of
said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ of
Habeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court
of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by
a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to
have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the
detention or confinement is the result of a process issued by the court or judge or by virtue of a
judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the
process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be
assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation
of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus
could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail
inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner
stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking
cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of
habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary
and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal
detention-its ability to cut through barriers of form and procedural mazes-have always been
emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of
Prisons, 37 SCRA 420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the
insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional
liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the
remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for
being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory
decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a
settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the
lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be
complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a
penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the
defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to
bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to
come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no
such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a
rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property
constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers
and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently
rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing
the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law.
However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order
187. She thereby erased the crime of rebellion complexed with murder and made it clear that the Hernandez
doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense
expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a
repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of
this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until
the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the
information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result
in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb
dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means
to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the
dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for
the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the
commission of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of
rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be
broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the
destruction of life and property. The same act cannot be punishable by separate penalties depending on what
strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The
prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying
waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts
of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels
for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised
Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities
furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued
the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was
compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to
apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of
established procedure based on a well-known Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong to the
prosecution service. A court should never play into the hands of the prosecution and blindly comply with its
erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial
court is to throw it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently
followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations
in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and
any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or
ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to
this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have
been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from
their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other
way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as
that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98)
'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision,
an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the other two departments in the
maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak
with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on those occupying the lower ranks in
the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in
People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further
emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further
emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court,
by tradition and in our system of judicial administration, has the last word on what the law is; it is the
final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all
other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First
Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals,
85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen
Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of
the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only
in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to
the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable
cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of
arrest, the answer was that the evidence would be submitted in due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these
petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural
houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio
youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-
conspirators in a rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners
served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.

In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous
bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group
photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of
food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a
preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due
process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it
is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of
all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to
the guilt of the accused. Although there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run
counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391).
The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible
evidence might later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and
not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461-
462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging
simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show
only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there
is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The
prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under
our rulings, does not exist, those informations should be treated as null and void. New informations charging the
correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If
the Government feels that the current situation calls for the imposition of more severe penalties like death or the
creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for
a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand
reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept
of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-
How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which,
when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is
committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for
the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said
government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval
or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or
prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of
acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war
against the forces of the Government, destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of
rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion
or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees?
Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the
indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand,
differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that
the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into
rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted
separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both
Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a
conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear
upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial
decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms
become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms
(Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes
part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing
(here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is
more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera,
65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule
whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the
United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto
laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43
US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the
reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not
upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is,
however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And
assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandez doctrine in terms
which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v.
Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical
question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez
doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question
would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of
average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of
the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the
question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached
by the Court and its several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us discover for the
first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent
accused than the simple application of the Hernandez doctrine that murders which have been committed on the
occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the
Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515
(1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it
conformable with accepted and well-settled principles of criminal law and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all
common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the
latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the
communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-
reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of
seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised
Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe
that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should
have further considered that distinction between acts or offenses which are indispensable in the commission of
rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the
commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in
Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an
element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be
deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case
of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely
necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson,
robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as
elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in
our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be
an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is
not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of
the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed
against Government forces and property in the course of rebellion are properly considered indispensable overt acts
of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be
necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the
said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between
government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of
military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately
shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the
furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely
necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government
by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has
introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal
Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the
contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by
itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a
coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the
crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be
executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder,
arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In
extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d'
etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup
d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the
majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the
case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we
have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,
habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple
rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of
petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval
thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the
Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail.
Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of
our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to
grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court
deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be
certified to the respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant
to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional
release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the
said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled
in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort
to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property,
physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether
committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion
may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly,
rebellion includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as
constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is
a surplusage, because in any case, the crime of rebellion is left fully described. 4

At any rate, the government need only amend the information by a clerical correction, since an amendment will not
alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that
when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment,
because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the
complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In the
Hernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial
court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before
the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion
complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is
confronted with an original case, i.e., where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion
can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the
lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon
C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion
complexed with murder, and multiple frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down the
Hernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an
information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in
substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are
as null and void as the information on which they are anchored. And, since the entire question of the information's
validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,
even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or
"baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and proper
information, for this entire exercise to merit the serious consideration of the courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for
rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon
City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

Separate Opinions

MELENCIO-HERRERA, J., concurring:

I join my colleagues in holding that the Hernandez doctrine, which has been with us for the past three decades,
remains good law and, thus, should remain undisturbed, despite periodic challenges to it that, ironically, have only
served to strengthen its pronouncements.

I take exception to the view, however, that habeas corpus was not the proper remedy.

Had the Information filed below charged merely the simple crime of Rebellion, that proposition could have been
plausible. But that Information charged Rebellion complexed with Murder and Multiple Frustrated Murder, a crime
which does not exist in our statute books. The charge was obviously intended to make the penalty for the most
serious offense in its maximum period imposable upon the offender pursuant to Article 48 of the Revised Penal
Code. Thus, no bail was recommended in the Information nor was any prescribed in the Warrant of Arrest issued by
the Trial Court.

Under the attendant circumstances, therefore, to have filed a Motion to Quash before the lower Court would not
have brought about the speedy relief from unlawful restraint that petitioner was seeking. During the pendency of
said Motion before the lower Court, petitioner could have continued to languish in detention. Besides, the Writ of
Habeas Corpus may still issue even if another remedy, which is less effective, may be availed of (Chavez vs. Court
of Appeals, 24 SCRA 663).

It is true that habeas corpus would ordinarily not he when a person is under custody by virtue of a process issued by
a Court.

The Court, however, must have jurisdiction to issue the process. In this case, the Court below must be deemed to
have been ousted of jurisdiction when it illegally curtailed petitioner's liberty. Habeas corpus is thus available.

The writ of habeas corpus is available to relieve persons from unlawful restraint. But where the
detention or confinement is the result of a process issued by the court or judge or by virtue of a
judgment or sentence, the writ ordinarily cannot be availed of. It may still be invoked though if the
 process, judgment or sentence proceeded from a court or tribunal the jurisdiction of which may be
assailed. Even if it had authority to act at the outset, it is now the prevailing doctrine that a deprivation
of constitutional right, if shown to exist, would oust it of jurisdiction. In such a case, habeas corpus
could be relied upon to regain one's liberty (Celeste vs. People, 31 SCRA 391) [Emphasis emphasis].

The Petition for habeas corpus was precisely premised on the violation of petitioner's constitutional right to bail
inasmuch as rebellion, under the present state of the law, is a bailable offense and the crime for which petitioner
stands accused of and for which he was denied bail is non-existent in law.

While litigants should, as a rule, ascend the steps of the judicial ladder, nothing should stop this Court from taking
cognizance of petitions brought before it raising urgent constitutional issues, any procedural flaw notwithstanding.

The rules on habeas corpus are to be liberally construed (Ganaway v. Quilen, 42 Phil. 805), the writ of
habeas corpus being the fundamental instrument for safeguarding individual freedom against arbitrary
and lawless state action. The scope and flexibility of the writ-its capacity to reach all manner of illegal
detention-its ability to cut through barriers of form and procedural mazes-have always been
emphasized and jealously guarded by courts and lawmakers (Gumabon v. Director of Bureau of
Prisons, 37 SCRA 420) [emphasis supplied].

The proliferation of cases in this Court, which followed in the wake of this Petition, was brought about by the
insistence of the prosecution to charge the crime of Rebellion complexed with other common offenses
notwithstanding the fact that this Court had not yet ruled on the validity of that charge and had granted provisional
liberty to petitioner.

If, indeed, it is desired to make the crime of Rebellion a capital offense (now punishable by reclusion perpetua), the
remedy lies in legislation. But Article 142-A 1 of the Revised Penal Code, along with P.D. No. 942, were repealed, for
being "repressive," by EO No. 187 on 5 June 1987. EO 187 further explicitly provided that Article 134 (and others
enumerated) of the Revised Penal Code was "restored to its full force and effect as it existed before said amendatory
decrees." Having been so repealed, this Court is bereft of power to legislate into existence, under the guise of re-examining a
settled doctrine, a "creature unknown in law"- the complex crime of Rebellion with Murder. The remand of the case to the
lower Court for further proceedings is in order. The Writ of Habeas Corpus has served its purpose.

GUTIERREZ, JR., J., concurring:

I join the Court's decision to grant the petition. In reiterating the rule that under existing law rebellion may not be
complexed with murder, the Court emphasizes that it cannot legislate a new-crime into existence nor prescribe a
penalty for its commission. That function is exclusively for Congress.

I write this separate opinion to make clear how I view certain issues arising from these cases, especially on how the
defective informations filed by the prosecutors should have been treated.

I agree with the ponente that a petition for habeas corpus is ordinarily not the proper procedure to assert the right to
bail. Under the special circumstances of this case, however, the petitioners had no other recourse. They had to
come to us.

First, the trial court was certainly aware of the decision in People v. Hernandez, 99 Phil. 515 (1956) that there is no
such crime in our statute books as rebellion complexed with murder, that murder committed in connection with a
rebellion is absorbed by the crime of rebellion, and that a resort to arms resulting in the destruction of life or property
constitutes neither two or more offenses nor a complex crime but one crime-rebellion pure and simple.

Second, Hernandez has been the law for 34 years. It has been reiterated in equally sensational cases. All lawyers
and even law students are aware of the doctrine. Attempts to have the doctrine re-examined have been consistently
rejected by this Court.

Third, President Marcos through the use of his then legislative powers, issued Pres. Decree 942, thereby installing
the new crime of rebellion complexed with offenses like murder where graver penalties are imposed by law.
However, President Aquino using her then legislative powers expressly repealed PD 942 by issuing Exec. Order
187. She thereby erased the crime of rebellion complexed with murder and made it clear that the Hernandez
doctrine remains the controlling rule. The prosecution has not explained why it insists on resurrecting an offense
expressly wiped out by the President. The prosecution, in effect, questions the action of the President in repealing a
repressive decree, a decree which, according to the repeal order, is violative of human rights.

Fourth, any re-examination of the Hernandez doctrine brings the ex post facto principle into the picture. Decisions of
this Court form part of our legal system. Even if we declare that rebellion may be complexed with murder, our
declaration can not be made retroactive where the effect is to imprison a person for a crime which did not exist until
the Supreme Court reversed itself.

And fifth, the attempts to distinguish this case from the Hernandez case by stressing that the killings charged in the
information were committed "on the occasion of, but not a necessary means for, the commission of rebellion" result
in outlandish consequences and ignore the basic nature of rebellion. Thus, under the prosecution theory a bomb
dropped on PTV-4 which kills government troopers results in simple rebellion because the act is a necessary means
to make the rebellion succeed. However, if the same bomb also kills some civilians in the neighborhood, the
dropping of the bomb becomes rebellion complexed with murder because the killing of civilians is not necessary for
the success of a rebellion and, therefore, the killings are only "on the occasion of but not a 'necessary means for' the
commission of rebellion.

This argument is puerile.

The crime of rebellion consists of many acts. The dropping of one bomb cannot be isolated as a separate crime of
rebellion. Neither should the dropping of one hundred bombs or the firing of thousands of machine gun bullets be
broken up into a hundred or thousands of separate offenses, if each bomb or each bullet happens to result in the
destruction of life and property. The same act cannot be punishable by separate penalties depending on what
strikes the fancy of prosecutors-punishment for the killing of soldiers or retribution for the deaths of civilians. The
prosecution also loses sight of the regrettable fact that in total war and in rebellion the killing of civilians, the laying
waste of civilian economies, the massacre of innocent people, the blowing up of passenger airplanes, and other acts
of terrorism are all used by those engaged in rebellion. We cannot and should not try to ascertain the intent of rebels
for each single act unless the act is plainly not connected to the rebellion. We cannot use Article 48 of the Revised
Penal Code in lieu of still-to- be-enacted legislation. The killing of civilians during a rebel attack on military facilities
furthers the rebellion and is part of the rebellion.

The trial court was certainly aware of all the above considerations. I cannot understand why the trial Judge issued
the warrant of arrest which categorically states therein that the accused was not entitled to bail. The petitioner was
compelled to come to us so he would not be arrested without bail for a nonexistent crime. The trial court forgot to
apply an established doctrine of the Supreme Court. Worse, it issued a warrant which reversed 34 years of
established procedure based on a well-known Supreme Court ruling.

All courts should remember that they form part of an independent judicial system; they do not belong to the
prosecution service. A court should never play into the hands of the prosecution and blindly comply with its
erroneous manifestations. Faced with an information charging a manifestly non-existent crime, the duty of a trial
court is to throw it out. Or, at the very least and where possible, make it conform to the law.

A lower court cannot re-examine and reverse a decision of the Supreme Court especially a decision consistently
followed for 34 years. Where a Judge disagrees with a Supreme Court ruling, he is free to express his reservations
in the body of his decision, order, or resolution. However, any judgment he renders, any order he prescribes, and
any processes he issues must follow the Supreme Court precedent. A trial court has no jurisdiction to reverse or
ignore precedents of the Supreme Court. In this particular case, it should have been the Solicitor General coming to
this Court to question the lower court's rejection of the application for a warrant of arrest without bail. It should have
been the Solicitor-General provoking the issue of re-examination instead of the petitioners asking to be freed from
their arrest for a non-existent crime.

The principle bears repeating:

Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other
way on the legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as
that. There is relevance to this excerpt from Barrera v. Barrera. (L-31589, July 31, 1970, 34 SCRA 98)
'The delicate task of ascertaining the significance that attaches to a constitutional or statutory provision,
an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It thus
discharges a role no less crucial than that appertaining to the other two departments in the
maintenance of the rule of law. To assure stability in legal relations and avoid confusion, it has to speak
with one voice. It does so with finality, logically and rightly, through the highest judicial organ, this Court.
What it says then should be definitive and authoritative, binding on those occupying the lower ranks in
the judicial hierarchy. They have to defer and to submit.' (Ibid, 107. The opinion of Justice Laurel in
People v. Vera, 65 Phil. 56 [1937] was cited). The ensuing paragraph of the opinion in Barrera further
emphasizes the point: Such a thought was reiterated in an opinion of Justice J.B.L. Reyes and further
emphasized in these words: 'Judge Gaudencio Cloribel need not be reminded that the Supreme Court,
by tradition and in our system of judicial administration, has the last word on what the law is; it is the
final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all
 other courts should take their bearings. (Ibid. Justice J.B.L. Reyes spoke thus in Albert v. Court of First
Instance of Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961. (Tugade v. Court of Appeals,
85 SCRA 226 [1978]. See also Albert v. Court of First Instance, 23 SCRA 948 [1968] and Vir-Jen
Shipping and Marine Services, Inc. v. NLRC, 125 SCRA 577 [1983])

I find the situation in Spouses Panlilio v. Prosecutors Fernando de Leon, et al. even more inexplicable. In the case of
the Panlilios, any probable cause to commit the non- existent crime of rebellion complexed with murder exists only
in the minds of the prosecutors, not in the records of the case.

I have gone over the records and pleadings furnished to the members of the Supreme Court. I listened intently to
the oral arguments during the hearing and it was quite apparent that the constitutional requirement of probable
cause was not satisfied. In fact, in answer to my query for any other proofs to support the issuance of a warrant of
arrest, the answer was that the evidence would be submitted in due time to the trial court.

The spouses Panlilio and one parent have been in the restaurant business for decades. Under the records of these
petitions, any restaurant owner or hotel manager who serves food to rebels is a co-conspirator in the rebellion. The
absurdity of this proposition is apparent if we bear in mind that rebels ride in buses and jeepneys, eat meals in rural
houses when mealtime finds them in the vicinity, join weddings, fiestas, and other parties, play basketball with barrio
youths, attend masses and church services and otherwise mix with people in various gatherings. Even if the hosts
recognize them to be rebels and fail to shoo them away, it does not necessarily follow that the former are co-
conspirators in a rebellion.

The only basis for probable cause shown by the records of the Panlilio case is the alleged fact that the petitioners
served food to rebels at the Enrile household and a hotel supervisor asked two or three of their waiters, without
reason, to go on a vacation. Clearly, a much, much stronger showing of probable cause must be shown.

In Salonga v. Cruz Pao, 134 SCRA 438 (1985), then Senator Salonga was charged as a conspirator in the heinous
bombing of innocent civilians because the man who planted the bomb had, sometime earlier, appeared in a group
photograph taken during a birthday party in the United States with the Senator and other guests. It was a case of
conspiracy proved through a group picture. Here, it is a case of conspiracy sought to proved through the catering of
food.

The Court in Salonga stressed:

The purpose of a preliminary investigation is to secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an open and public accusation of crime, from the
trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive
trials. (Trocio v. Manta, 118 SCRA 241; citing Hashimn v. Boncan, 71 Phil. 216). The right to a
preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due
process. (See People v. Oandasa, 25 SCRA 277) However, in order to satisfy the due process clause it
is not enough that the preliminary investigation is conducted in the sense of making sure that a
transgressor shall not escape with impunity. A preliminary investigation serves not only the purposes of
the State. More important, it is a part of the guarantees of freedom and fair play which are birthrights of
all who live in our country. It is, therefore, imperative upon the fiscal or the judge as the case may be, to
relieve the accused from the pain of going through a trial once it is ascertained that the evidence is
insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to
the guilt of the accused. Although there is no general formula or fixed rule for the determination of
probable cause since the same must be decided in the light of the conditions obtaining in given
situations and its existence depends to a large degree upon the finding or opinion of the judge
conducting the examination, such a finding should not disregard the facts before the judge nor run
counter to the clear dictates of reason (See La Chemise Lacoste, S.A. v. Fernandez, 129 SCRA 391).
The judge or fiscal, therefore, should not go on with the prosecution in the hope that some credible
evidence might later turn up during trial for this would be a flagrant violation of a basic right which the
courts are created to uphold. It bears repeating that the judiciary lives up to its mission by vitalizing and
not denigrating constitutional rights. So it has been before. It should continue to be so. (id., pp. 461-
462)

Because of the foregoing, I take exception to that part of the ponencia which will read the informations as charging
simple rebellion. This case did not arise from innocent error. If an information charges murder but its contents show
only the ingredients of homicide, the Judge may rightly read it as charging homicide. In these cases, however, there
is a deliberate attempt to charge the petitioners for an offense which this Court has ruled as non-existent. The
prosecution wanted Hernandez to be reversed. Since the prosecution has filed informations for a crime which, under
our rulings, does not exist, those informations should be treated as null and void. New informations charging the
correct offense should be filed. And in G.R. No. 92164, an extra effort should be made to see whether or not the
Principle in Salonga v. Cruz Patio, et al. (supra) has been violated.

The Court is not, in any way, preventing the Government from using more effective weapons to suppress rebellion. If
the Government feels that the current situation calls for the imposition of more severe penalties like death or the
creation of new crimes like rebellion complexed with murder, the remedy is with Congress, not the courts.

I, therefore, vote to GRANT the petitions and to ORDER the respondent court to DISMISS the void informations for
a non-existent crime.

FELICIANO, J., concurring:

I concur in the result reached by the majority of the Court.

I believe that there are certain aspects of the Hernandez doctrine that, as an abstract question of law, could stand
reexamination or clarification. I have in mind in particular matters such as the correct or appropriate relationship
between Article 134 and Article 135 of the Revised Penal Code. This is a matter which relates to the legal concept
of rebellion in our legal system. If one examines the actual terms of Article 134 (entitled: "Rebellion or Insurrection-
How Committed"), it would appear that this Article specifies both the overt acts and the criminal purpose which,
when put together, would constitute the offense of rebellion. Thus, Article 134 states that "the crime of rebellion is
committed by rising publicly and taking arms against the Government "(i.e., the overt acts comprising rebellion), "for
the purpose of (i.e., the specific criminal intent or political objective) removing from the allegiance to said
government or its laws the territory of the Republic of the Philippines or any part thereof, or any body of land, naval
or other armed forces, or depriving the Chief Executive or the Legislature, wholly or partially, of their powers or
prerogatives." At the same time, Article 135 (entitled: "Penalty for Rebellion or Insurrection.") sets out a listing of
acts or particular measures which appear to fall under the rubric of rebellion or insurrection: "engaging in war
against the forces of the Government, destroying property or committing serious violence, exacting contributions or
diverting public funds from the lawful purpose for which they have been appropriated." Are these modalities of
rebellion generally? Or are they particular modes by which those "who promote [ ], maintain [ ] or head [ ] a rebellion
or insurrection" commit rebellion, or particular modes of participation in a rebellion by public officers or employees?
Clearly, the scope of the legal concept of rebellion relates to the distinction between, on the one hand, the
indispensable acts or ingredients of the crime of rebellion under the Revised Penal Code and, on the other hand,
differing optional modes of seeking to carry out the political or social objective of the rebellion or insurrection.

The difficulty that is at once raised by any effort to examine once more even the above threshold questions is that
the results of such re-examination may well be that acts which under the Hernandez doctrine are absorbed into
rebellion, may be characterized as separate or discrete offenses which, as a matter of law, can either be prosecuted
separately from rebellion or prosecuted under the provisions of Article 48 of the Revised Penal Code, which (both
Clause 1 and Clause 2 thereof) clearly envisage the existence of at least two (2) distinct offenses. To reach such a
conclusion in the case at bar, would, as far as I can see, result in colliding with the fundamental non-retroactivity
principle (Article 4, Civil Code; Article 22, Revised Penal Code; both in relation to Article 8, Civil Code).

The non-retroactivity rule applies to statutes principally. But, statutes do not exist in the abstract but rather bear
upon the lives of people with the specific form given them by judicial decisions interpreting their norms. Judicial
decisions construing statutory norms give specific shape and content to such norms. In time, the statutory norms
become encrusted with the glosses placed upon them by the courts and the glosses become integral with the norms
(Cf Caltex v. Palomar, 18 SCRA 247 [1966]). Thus, while in legal theory, judicial interpretation of a statute becomes
part of the law as of the date that the law was originally enacted, I believe this theory is not to be applied rigorously
where a new judicial doctrine is announced, in particular one overruling a previous existing doctrine of long standing
(here, 36 years) and most specially not where the statute construed is criminal in nature and the new doctrine is
more onerous for the accused than the pre-existing one (People v. Jabinal, 55 SCRA 607 [1974]; People v. Licera,
65 SCRA 270 [1975]; Gumabon v. Director of Prisons, 37 SCRA 420 [1971]). Moreover, the non-retroactivity rule
whether in respect of legislative acts or judicial decisions has constitutional implications. The prevailing rule in the
United States is that a judicial decision that retroactively renders an act criminal or enhances the severity of the
penalty prescribed for an offense, is vulnerable to constitutional challenge based upon the rule against ex post facto
laws and the due process clause (Bouie v. City of Columbia, 378 US 347,12 L. Ed. 2d 894 [1964]; Marks v. U.S., 43
US 188, 51 L. Ed. 2d 260 [1977]; Devine v. New Mexico Department of Corrections, 866 F. 2d 339 [1989]).

It is urged by the Solicitor General that the non-retroactivity principle does not present any real problem for the
reason that the Hernandez doctrine was based upon Article 48, second clause, of the Revised Penal Code and not
upon the first clause thereof, while it is precisely the first clause of Article 48 that the Government here invokes. It is,
however, open to serious doubt whether Hernandez can reasonably be so simply and sharply characterized. And
assuming the Hernandez could be so characterized, subsequent cases refer to the Hernandez doctrine in terms
which do not distinguish clearly between the first clause and the second clause of Article 48 (e.g., People v.
Geronimo, 100 Phil. 90 [1956]; People v. Rodriguez, 107 Phil. 659 [1960]). Thus, it appears to me that the critical
question would be whether a man of ordinary intelligence would have necessarily read or understood the Hernandez
doctrine as referring exclusively to Article 48, second clause. Put in slightly different terms, the important question
would be whether the new doctrine here proposed by the Government could fairly have been derived by a man of
average intelligence (or counsel of average competence in the law) from an examination of Articles 134 and 135 of
the Revised Penal Code as interpreted by the Court in the Hernandez and subsequent cases. To formulate the
question ill these terms would almost be to compel a negative answer, especially in view of the conclusions reached
by the Court and its several Members today.

Finally, there appears to be no question that the new doctrine that the Government would have us discover for the
first time since the promulgation of the Revised Penal Code in 1932, would be more onerous for the respondent
accused than the simple application of the Hernandez doctrine that murders which have been committed on the
occasion of and in furtherance of the crime of rebellion must be deemed absorbed in the offense of simple rebellion.

I agree therefore that the information in this case must be viewed as charging only the crime of simple rebellion.

FERNAN, C.J., concurring and dissenting:

I am constrained to write this separate opinion on what seems to be a rigid adherence to the 1956 ruling of the
Court. The numerous challenges to the doctrine enunciated in the case of People vs. Hernandez, 99 Phil. 515
(1956) should at once demonstrate the need to redefine the applicability of said doctrine so as to make it
conformable with accepted and well-settled principles of criminal law and jurisprudence.

To my mind, the Hernandez doctrine should not be interpreted as an all-embracing authority for the rule that all
common crimes committed on the occasion, or in furtherance of, or in connection with, rebellion are absorbed by the
latter. To that extent, I cannot go along with the view of the majority in the instant case that 'Hernandez remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion" (p. 9, Decision).

The Hernandez doctrine has served the purpose for which it was appealed by the Court in 1956 during the
communist-inspired rebellion of the Huks. The changes in our society in the span of 34 years since then have far-
reaching effects on the all-embracing applicability of the doctrine considering the emergence of alternative modes of
seizing the powers of the duly constituted Government not contemplated in Articles 134 and 135 of the Revised
Penal Code and their consequent effects on the lives of our people. The doctrine was good law then, but I believe
that there is a certain aspect of the Hernandez doctrine that needs clarification.

With all due respect to the views of my brethren in the Court, I believe that the Court, in the instant case, should
have further considered that distinction between acts or offenses which are indispensable in the commission of
rebellion, on the one hand, and those acts or offenses that are merely necessary but not indispensable in the
commission of rebellion, on the other. The majority of the Court is correct in adopting, albeit impliedly, the view in
Hernandez case that when an offense perpetrated as a necessary means of committing another, which is an
element of the latter, the resulting interlocking crimes should be considered as only one simple offense and must be
deemed outside the operation of the complex crime provision (Article 48) of the Revised Penal Code. As in the case
of Hernandez, the Court, however, failed in the instant case to distinguish what is indispensable from what is merely
necessary in the commission of an offense, resulting thus in the rule that common crimes like murder, arson,
robbery, etc. committed in the course or on the occasion of rebellion are absorbed or included in the latter as
elements thereof.

The relevance of the distinction is significant, more particularly, if applied to contemporaneous events happening in
our country today. Theoretically, a crime which is indispensable in the commission of another must necessarily be
an element of the latter; but a crime that is merely necessary but not indispensable in the commission of another is
not an element of the latter, and if and when actually committed, brings the interlocking crime within the operation of
the complex crime provision (Art. 48) of the Revised Penal Code. With that distinction, common crimes committed
against Government forces and property in the course of rebellion are properly considered indispensable overt acts
of rebellion and are logically absorbed in it as virtual ingredients or elements thereof, but common crimes committed
against the civilian population in the course or on the occasion of rebellion and in furtherance thereof, may be
necessary but not indispensable in committing the latter, and may, therefore, not be considered as elements of the
said crime of rebellion. To illustrate, the deaths occurring during armed confrontation or clashes between
government forces and the rebels are absorbed in the rebellion, and would be those resulting from the bombing of
military camps and installations, as these acts are indispensable in carrying out the rebellion. But deliberately
shooting down an unarmed innocent civilian to instill fear or create chaos among the people, although done in the
furtherance of the rebellion, should not be absorbed in the crime of rebellion as the felonious act is merely
necessary, but not indispensable. In the latter case, Article 48 of the Revised Penal Code should apply.

The occurrence of a coup d' etat in our country as a mode of seizing the powers of the duly-constituted government
by staging surprise attacks or occupying centers of powers, of which this Court should take judicial notice, has
introduced a new dimension to the interpretation of the provisions on rebellion and insurrection in the Revised Penal
Code. Generally, as a mode of seizing the powers of the duly constituted government, it falls within the
contemplation of rebellion under the Revised Penal Code, but, strictly construed, a coup d'etat per se is a class by
itself. The manner of its execution and the extent and magnitude of its effects on the lives of the people distinguish a
coup d'etat from the traditional definition and modes of commission attached by the Revised Penal Code to the
crime of rebellion as applied by the Court to the communist-inspired rebellion of the 1950's. A coup d'etat may be
executed successfully without its perpetrators resorting to the commission of other serious crimes such as murder,
arson, kidnapping, robbery, etc. because of the element of surprise and the precise timing of its execution. In
extreme cases where murder, arson, robbery, and other common crimes are committed on the occasion of a coup d'
etat, the distinction referred to above on what is necessary and what is indispensable in the commission of the coup
d'etat should be painstakingly considered as the Court should have done in the case of herein petitioners.

I concur in the result insofar as the other issues are resolved by the Court but I take exception to the vote of the
majority on the broad application of the Hernandez doctrine.

BIDIN, J., concurring and dissenting:

I concur with the majority opinion except as regards the dispositive portion thereof which orders the remand of the
case to the respondent judge for further proceedings to fix the amount of bail to be posted by the petitioner.

I submit that the proceedings need not be remanded to the respondent judge for the purpose of fixing bail since we
have construed the indictment herein as charging simple rebellion, an offense which is bailable. Consequently,
habeas corpus is the proper remedy available to petitioner as an accused who had been charged with simple
rebellion, a bailable offense but who had been denied his right to bail by the respondent judge in violation of
petitioner's constitutional right to bail. In view thereof, the responsibility of fixing the amount of bail and approval
thereof when filed, devolves upon us, if complete relief is to be accorded to petitioner in the instant proceedings.

It is indubitable that before conviction, admission to bail is a matter of right to the defendant, accused before the
Regional Trial Court of an offense less than capital (Section 13 Article III, Constitution and Section 3, Rule 114).
Petitioner is, before Us, on a petition for habeas corpus praying, among others, for his provisional release on bail.
Since the offense charged (construed as simple rebellion) admits of bail, it is incumbent upon us m the exercise of
our jurisdiction over the petition for habeas corpus (Section 5 (1), Article VIII, Constitution; Section 2, Rule 102), to
grant petitioner his right to bail and having admitted him to bail, to fix the amount thereof in such sums as the court
deems reasonable. Thereafter, the rules require that "the proceedings together with the bond" shall forthwith be
certified to the respondent trial court (Section 14, Rule 102).

Accordingly, the cash bond in the amount of P 100,000.00 posted by petitioner for his provisional release pursuant
to our resolution dated March 6, 1990 should now be deemed and admitted as his bail bond for his provisional
release in the case (simple rebellion) pending before the respondent judge, without necessity of a remand for further
proceedings, conditioned for his (petitioner's) appearance before the trial court to abide its order or judgment in the
said case.

SARMIENTO, J., concurring and dissenting:

I agree that People v. Hernandez 1 should abide. More than three decades after which it was penned, it has firmly settled
in the tomes of our jurisprudence as correct doctrine.

As Hernandez put it, rebellion means "engaging m war against the forces of the government," 2 which implies "resort
to arms, requisition of property and services, collection of taxes and contributions, restraint of liberty, damage to property,
physical injuries and loss of life, and the hunger, illness and unhappiness that war leaves in its wake. ..." 3 whether
committed in furtherance, of as a necessary means for the commission, or in the course, of rebellion. To say that rebellion
may be complexed with any other offense, in this case murder, is to play into a contradiction in terms because exactly,
rebellion includes murder, among other possible crimes.

I also agree that the information may stand as an accusation for simple rebellion. Since the acts complained of as
constituting rebellion have been embodied in the information, mention therein of murder as a complexing offense is
a surplusage, because in any case, the crime of rebellion is left fully described. 4

At any rate, the government need only amend the information by a clerical correction, since an amendment will not
alter its substance.

I dissent, however, insofar as the majority orders the remand of the matter of bail to the lower court. I take it that
when we, in our Resolution of March 6, 1990, granted the petitioner "provisional liberty" upon the filing of a bond of
P100,000.00, we granted him bail. The fact that we gave him "provisional liberty" is in my view, of no moment,
because bail means provisional liberty. It will serve no useful purpose to have the trial court hear the incident again
when we ourselves have been satisfied that the petitioner is entitled to temporary freedom.

PADILLA, J., dissenting:

I concur in the majority opinion insofar as it holds that the ruling in People vs. Hernandez, 99 Phil. 515 "remains
binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion
thereof, either as a means necessary to its commission or as an unintended effect of an activity that constitutes
rebellion."

I dissent, however, from the majority opinion insofar as it holds that the information in question, while charging the
complex crime of rebellion with murder and multiple frustrated murder, "is to be read as charging simple rebellion."

The present cases are to be distinguished from the Hernandez case in at least one (1) material respect. In the
Hernandez case, this Court was confronted with an appealed case, i.e., Hernandez had been convicted by the trial
court of the complex crime of rebellion with murder, arson and robbery, and his plea to be released on bail before
the Supreme Court, pending appeal, gave birth to the now celebrated Hernandez doctrine that the crime of rebellion
complexed with murder, arson and robbery does not exist. In the present cases, on the other hand, the Court is
confronted with an original case, i.e., where an information has been recently filed in the trial court and the
petitioners have not even pleaded thereto.

Furthermore, the Supreme Court, in the Hernandez case, was "ground-breaking" on the issue of whether rebellion
can be complexed with murder, arson, robbery, etc. In the present cases, on the other hand, the prosecution and the
lower court, not only had the Hernandez doctrine (as case law), but Executive Order No. 187 of President Corazon
C. Aquino dated 5 June 1987 (as statutory law) to bind them to the legal proposition that the crime of rebellion
complexed with murder, and multiple frustrated murder does not exist.

And yet, notwithstanding these unmistakable and controlling beacon lights-absent when this Court laid down the
Hernandez doctrine-the prosecution has insisted in filing, and the lower court has persisted in hearing, an
information charging the petitioners with rebellion complexed with murder an multiple frustrated murder. That
information is clearly a nullity and plainly void ab initio. Its head should not be allowed to surface. As a nullity in
substantive law, it charges nothing; it has given rise to nothing. The warrants of arrest issued pursuant thereto are
as null and void as the information on which they are anchored. And, since the entire question of the information's
validity is before the Court in these habeas corpus cases, I venture to say that the information is fatally defective,
even under procedural law, because it charges more than one (1) offense (Sec. 13, Rule 110, Rules of Court).

I submit then that it is not for this Court to energize a dead and, at best, fatally decrepit information by labelling or
"baptizing" it differently from what it announces itself to be. The prosecution must file an entirely new and proper
information, for this entire exercise to merit the serious consideration of the courts.

ACCORDINGLY, I vote to GRANT the petitions, QUASH the warrants of arrest, and ORDER the information for
rebellion complexed with murder and multiple frustrated murder in Criminal Case Nos. 90-10941, RTC of Quezon
City, DISMISSED.

Consequently, the petitioners should be ordered permanently released and their bails cancelled.

Paras, J., concurs.

Footnotes

1 99 Phil. 515 (1956).

2 People vs. Lava, 28 SCRA 72 (1956); People vs. Geronimo, 100 Phil. 90 (1956); People vs.
 Romagosa, 103 Phil. 20 (1958); and People vs. Rodriguez, 107 Phil. 659 (1960).

3 Rollo, G.R. No. 92163, pp. 32-34.

4 Rollo, G.R. No. 92163, pp. 34 et seq.

5 Rollo, G.R. No. 92163, p. 26.

6 Rollo, G.R. No. 92163, pp. 305-359.

7 Originally a petition for certiorari and prohibition which the Court, upon motion of the petitioners,
resolved to treat as a petition for habeas corpus; Rollo, G.R. No. 92164, pp. 128-129.

8 Rollo, G.R. No. 92163, pp. 407-411.

9 Fernan, C.J., and Narvasa, Cortes and Grino-Aquino, JJ.

10 Fernan, C.J. and Narvasa, J.

10-A Two Members a on leave.

11 Executive Order No. 187 issued June 5, 1987.

12 People vs. Hernandez, supra at 541-543.

13 Id., at 551.

14 Rollo, G.R. No. 92163, pp. 78-79 and 73-76.

14 Supra, footnote 4.

15 Soliven vs. Makasiar, 167 SCRA 394.

17 Rollo, G.R. No. 92163, pp. 46-47.

18 Sec. 2, Rule 117, Rules of Court.

19 Ocampo vs. Bernabe, 77 Phil. 55.

20 Rollo, G.R. No. 92164, pp. 124-125.

Melencio-Herrera, J., Opinion

1 "ART. 142-A-Cases where other offenses are committed.-When by reason or on the occasion of any
of the crimes penalized in this Chapter, acts which constitute offenses upon which graver penalties are
imposed by law are committed, the penalty for the most serious offense in its maximum period shall be
imposed upon the offender."

Sarmiento, J., Concurring

1 99 Phil. 515 (1956).

2 Supra, 520.

3 Supra, 521.

4 US v. Santiago, 41 Phil. 793 (1917).

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