consti2_liberty abode cases

8/9/2019 Consti2_Liberty Abode Cases

1/51

G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,vs.

THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, ! "#$%& o' ()& R&%io*lTril Co#r( o' C&+# Ci(, Br*-) I, *$ PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

/ELENCIO0HERRERA, J.:p

This is a Petition for Review on Certiorariunder Rule 45 of the Rules of Court praying that

the Decision of respondent Court of Appeals in CA-.R. !P "o. #5$%&, entitled 'Ricardo C.

!ilverio vs. (on. )enigno C. aviola, etc., et al.,' dated *# +anuary #, as well as the

Resolution of % +une # denying reconsideration, e set aside.

/n #4 /ctoer #$5, Petitioner was charged with violation of !ection % 041 of the Revised

!ecurities Act in Cri2inal Case "o. C)3-*4 of the Regional Trial Court of Ceu. n due

ti2e, he posted ail for his provisional lierty.

/n % +anuary #$$, or 2ore than two 0%1 years after the 6ling of the nfor2ation,

respondent People of the Philippines 6led an 3rgent ex parte 7otion to cancel the passport

of and to issue a hold-departure /rder against accused-petitioner on the ground that he

had gone aroad several ti2es without the necessary Court approval resulting in

postpone2ents of the arraign2ent and scheduled hearings.

/verruling opposition, the Regional Trial Court, on 4 April #$$, issued an /rder directing

the Depart2ent of 8oreign A9airs to cancel Petitioner:s passport or to deny his application

therefor, and the Co22ission on 22igration to prevent Petitioner fro2 leaving the

country. This order was ased pri2arily on the Trial Court:s 6nding that since the 6ling of

the nfor2ation on #4 /ctoer #$5, 'the accused has not yet een arraigned ecause he

has never appeared in Court on the dates scheduled for his arraign2ent and there is

evidence to show that accused Ricardo C. !ilverio, !r. has left the country and has gonearoad without the ;nowledge and per2ission of this Court' 0Rollo, p. 451. Petitioner:s

7otion for Reconsideration was denied on %$ +uly #$$.

Petitioner:s CertiorariPetition efore the Court of Appeals 2et a si2ilar fate on *# +anuary

#. (ence, this Petition for Review 6led on * +uly #.

After the respective pleadings reuash the nfor2ation? and 0%1 6nding that the right to travel can e

i2paired upon lawful order of the Court, even on grounds other than the 'interest of

national security, pulic safety or pulic health.'

@e perceive no reversile error.

#1 Although the date of the 6ling of the 7otion to >uash has een o2itted y Petitioner, it

is apparent that it was 6led long after the 6ling of the nfor2ation in #$5 and only after

several arraign2ents had already een scheduled and cancelled due to Petitioner:s non-

appearance. n fact, said 7otion to >uash was set for hearing only on # 8eruary #$$.

Convincingly shown y the Trial Court and confor2ed to y respondent Appellate Court is

the concurrence of the following circu2stances

#. The records will show that the infor2ation was 6led on /ctoer #4,

#$5. 3ntil this date 0%$ +uly #$$1, the case had yet to e arraigned.

!everal scheduled arraign2ents were cancelled and reset, 2ostly due to

the failure of accused !ilverio to appear. The reason for accused !ilverio:s

failure to appear had invarialy een ecause he is aroad in the 3nited

!tates of A2erica?

%. !ince the infor2ation was 6led, until this date, accused !ilverio had

never appeared in person efore the Court?

*. The ond posted y accused !ilverio had een cancelled twice andwarrants of arrest had een issued against hi2 all for the sa2e reason BB

failure to appear at scheduled arraign2ents.

n all candidness, the Court 2a;es the oservation that it has given

accused !ilverio 2ore than enough consideration. The li2it had long

een reached 0/rder, %$ +uly #$$, Cri2. Case "o. C)3-*4, RTC, Ceu,

p. 5? Rollo, p. &*1.

Patently, therefore, the uash ca2e aout only after several settings for

arraign2ent had een scheduled and cancelled y reason of Petitioner:s non-appearance.

%1 Petitioner:s further su2ission is that respondent Appellate Court 'glaringly erred' in

6nding that the right to travel can e i2paired upon lawful order of the Court, even on

grounds other than the 'interest of national security, pulic safety or pulic health.'

To start with, and this has not een controverted y Petitioner, the ail ond he had posted

had een cancelled and @arrants of Arrest had een issued against hi2 y reason, in oth

instances, of his failure to appear at scheduled arraign2ents. @arrants of Arrest having

een issued against hi2 for violation of the conditions of his ail ond, he should e ta;en

into custody. ')ail is the security given for the release of a person in custody of the law,

furnished y hi2 or a onds2an, conditioned upon his appearance efore any court when

so re


2/51

The foregoing condition i2posed upon an accused to 2a;e hi2self availale at all ti2es

whenever the Court re


3/51

Ii%r(io* Coi!!io*&r, S&-r&(r o' N(io*l D&'&*!& *$ C)i&' o' S(,r&!p&-(i:&l, respondents.

CORTES,J.:

)efore the Court is a contreversy of grave national i2portance. @hile ostensily only legal

issues are involved, the Court:s decision in this case would undenialy have a profound

e9ect on the political, econo2ic and other aspects of national life.

@e recall that in 8eruary #$, 8erdinand E. 7arcos was deposed fro2 the presidency via

the non-violent 'people power' revolution and forced into eHile. n his stead, Coraon C.

A


4/51

;nown to petitioners so that they 2ay controvert the

sa2eM

c. s the President:s deter2ination that the return of for2er President

7arcos and his fa2ily to the Philippines is a clear and present danger to

national security, pulic safety, or pulic health a political


5/51

Do petitioners 8erdinand E. 7arcos and fa2ily have the right to return to

the Philippines and reestalish their residence hereM This is clearly a

=usticiale


6/51

CommissionF* Phil. #* 0#*1G, 'the Constitution has loc;ed ut with deft stro;es and

in old lines, allot2ent of power to the eHecutive, the legislative and the =udicial

depart2ents of the govern2ent.' FAt #5&.# Thus, the #$& Constitution eHplicitly provides

that 'Fthe legislative power shall e vested in the Congress of the Philippines' Art I, !ec.

##, 'FtGhe eHecutive power shall evested in the President of the Philippines' FArt. I, !ec.

##, and 'Fte =udicial power shall e vested in one !upre2e Court and in such lower courts

as 2ay e estalished y law' FArt. I, !ec. #.G These provisions not only estalish a

separation of powers y actual division FAngara v. Electoral Co22ission, supraG ut also

confer plenary legislative, eHecutive and =udicial powers su=ect only to li2itations provided

in the Constitution. 8or as the !upre2e Court in *campo v. CabangisF#5 Phil. % 0##1G

pointed out 'a grant of the legislative power 2eans a grant of all legislative power? and a

grant of the =udicial power 2eans a grant of all the =udicial power which 2ay e eHercisedunder the govern2ent.' FAt *#-*%.# f this can e said of the legislative power which is

eHercised y two cha2ers with a co2ined 2e2ership of 2ore than two hundred

2e2ers and of the =udicial power which is vested in a hierarchy of courts, it can e


7/51

t has een advanced that whatever power inherent in the govern2ent that is neither

legislative nor =udicial has to e eHecutive. Thus, in the land2ar; decision of Springer v.

6overnment of t$e !$ilippine %slands, %&& 3.!. #$ 0#%$1, on the issue of who etween

the overnor-eneral of the Philippines and the egislature 2ay vote the shares of stoc;

held y the overn2ent to elect directors in the "ational Coal Co2pany and the Philippine

"ational )an;, the 3.!. !upre2e Court, in upholding the power of the overnor-eneral to

do so, said

...(ere the 2e2ers of the legislature who constitute a 2a=ority of the

'oard' and 'co22ittee' respectively, are not charged with the

perfor2ance of any legislative functions or with the doing of anything

which is in aid of perfor2ance of any such functions y the legislature.

Putting aside for the 2o2ent the


8/51

writ of $abeas corpusor declaring 2artial law, in order to ;eep the peace, and 2aintain

pulic order and security.

That the President has the power under the Constitution to ar the 7arcose:s fro2

returning has een recognied y 2e2e2ers of the egislature, and is 2anifested y the

Resolution proposed in the (ouse of Representatives and signed y #* of its 2e2ers

urging the President to allow 7r. 7arcos to return to the Philippines 'as a genuine unsel6sh

gesture for true national reconciliation and as irrevocale proof of our collective adherence

to unco2pro2ising respect for hu2an rights under the Constitution and our laws.' F(ouse

Resolution "o. #*4%, Rollo, p. *%#.# The Resolution does not


9/51

t will not do to argue that if the return of the 7arcoses to the Philippines will cause the

escalation of violence against the !tate, that would e the ti2e for the President to step in

and eHercise the co22ander-in-chief powers granted her y the Constitution to suppress or

sta2p out such violence. The !tate, acting through the overn2ent, is not precluded fro2

ta;ing pre- e2ptive action against threats to its eHistence if, though still nascent they are

perceived as apt to eco2e serious and direct. Protection of the people is the essence of

the duty of govern2ent. The preservation of the !tate the fruition of the people:s

sovereignty is an oligation in the highest order. The President, sworn to preserve and

defend the Constitution and to see the faithful eHecution the laws, cannot shir; fro2 that

responsiility.

@e cannot also lose sight of the fact that the country is only now eginning to recover fro2

the hardships rought aout y the plunder of the econo2y attriuted to the 7arcoses and

their close associates and relatives, 2any of who2 are still here in the Philippines in a

position to destailie the country, while the overn2ent has arely scratched the surface,

so to spea;, in its e9orts to recover the enor2ous wealth stashed away y the 7arcoses in

foreign =urisdictions. Then, @e cannot ignore the continually increasing urden i2posed on

the econo2y y the eHcessive foreign orrowing during the 7arcos regi2e, which stiOes

and stagnates develop2ent and is one of the root causes of widespread poverty and all its

attendant ills. The resulting precarious state of our econo2y is of co22on ;nowledge and

is easily within the a2it of =udicial notice.

The President has deter2ined that the destailiation caused y the return of the 7arcoses

would wipe away the gains achieved during the past few years and lead to total econo2iccollapse. iven what is within our individual and co22on ;nowledge of the state of the

econo2y, we cannot argue with that deter2ination.

@(ERE8/RE, and it eing our well-considered opinion that the President did not act

aritrarily or with grave ause of discretion in deter2ining that the return of for2er

President 7arcos and his fa2ily at the present ti2e and under present circu2stances

poses a serious threat to national interest and welfare and in prohiiting their return to the

Philippines, the instant petition is herey D!7!!ED.

!/ /RDERED.

S&pr(& Opi*io*!

FERNAN, C.J., concurring

'The threats to national security and pulic order are real the 2ounting Co22unist

insurgency, a si22ering separatist 2ove2ent, a restive studentry, widespread laor

disputes, 2ilitant far2er groups. . . . Each of these threats is an eHplosive ingredient in a

stea2ing cauldron which could low up if not handled properly.' 1

These are not 2y words. They elong to 2y distinguished colleague in the Court, 7r.

+ustice (ugo E. utierre, +r. )ut they eHpress elo


10/51

group was involved in an unsuccessful plot ;nown as /plan )ali; !aya which sought the

return of 7arcos to the country.

A 2ore recent threat to pulic order, peace and safety was the atte2pt of a group na2ed

CEDEC/R to 2oilie civilians fro2 neary provinces to act as loc;ading forces at

di9erent 7etro 7anila areas for the pro=ected lin;-up of 7arcos 2ilitary loyalist troops with

the group of (onasan. The pseudo 'people power' 2ove2ent was neutralied thru

chec;points set up y the authorities along 2a=or road arteries where the 2e2ers were

arrested or forced to turn ac;.

@hile not all of these disruptive incidents 2ay e traced directly to the 7arcoses, theiroccurrence 2ilitates heavily against the wisdo2 of allowing the 7arcoses: return. "ot only

will the 7arcoses: presence e2olden their followers toward si2ilar actions, ut any such

action would e seied upon as an opportunity y other ene2ies of the !tate, such as the

Co22unist Party of the Philippines and the "PA:!, the 7usli2 secessionists and eHtre2e

rightists of the RA7, to wage an o9ensive against the govern2ent. Certainly, the state

through its eHecutive ranch has the power, nay, the responsiility and oligation, to

prevent a grave and serious threat to its safety fro2 arising.

Apparently lost a2idst the deate on whether or not to allow the 7arcoses to return to the

Philippines is one factor, which aleit, at 6rst lush appears to e eHtra legal, constitutes a

valid =usti6cation for disallowing the re


11/51

HHH HHH HHH

t is a well-settled doctrine that political


12/51

!ection of the )ill of Rights states categorically that the lierty of aode and of changing

the sa2e within the li2its prescried y law 2ay e i2paired only upon a la)ful order of a

court. "ot y an eHecutive oJcer. "ot even y the President. !ection further provides

that the right to travel, and this oviously includes the right to travelout of or bac; intothe

Philippines, cannot e i2paired eHcept in the interest of national security, pulic safety, or

pulic health, as ma# be provided b# la).

There is no law setting the li2its on a citien:s right to 2ove fro2 one part of the country

to another or fro2 the Philippines to a foreign country or fro2 a foreign country to the

Philippines. The laws cited y the !olicitor eneral i22igration, health,


13/51

the 2ethod which had to e used in ansang. This Court relied heavily on

classi6ed infor2ation supplied y the 2ilitary. Accordingly, an

incongruous situation otained. 8or this Court, relied on the very ranch

of the govern2ent whose act was in


14/51

President to 6ll in the vacuu2, is too re2iniscent of A2end2ent "o. of the 2artial law

Constitution to warrant serious consideration. A2end2ent "o. allowed 7arcos to issue

decrees whenever the )atasang Pa2ansa failed or was unale to act ade


15/51

reinstating the discredited doctrine announced in Planas v. il 0& Phil. %1. This does not

silipinoto travel which, in the language of the Constitution, shall not e i2paired 'eHcept in

the interest of national security, pulic safety, or pulic health, as 2ay e provided y law'

0Art. , !ec. 1. That the right to travel co2prises the right to travel within the country, to

travel out of the country and to return to the country 0Philippines1, is hardly disputale.

!hort of all such co2ponents, the right to travel is 2eaningless. The real


16/51

Petitioners contend that, in the asence of restricting legislation, the right to travel is

asolute. do not agree. t is 2y view that, with or without restricting legislation, the

interest of national security, pulic safety or pulic health can =ustify and even reilipino, invo;ing a speci6c constitutional

right, i.e., the right to return to the country. 1(ave the respondents presented suJcient

evidence to o9set or override the eHercise of this right invo;ed y 7r. 7arcosM !tated

di9erently, have the respondents shown to the Court suJcient factual ases and data

which would =ustify their reliance on national security and pulic safety in negating the

right to return invo;ed y 7r. 7arcosM

have given these ilipinoto return to this country. t appears to 2e

that the apprehensions entertained and eHpressed y the respondents, including those

conveyed through the 2ilitary, do not, with all due respect, escalate to proportions of

national security or pulic safety. They appear to e 2ore speculative than real, osessive

rather than factual. 7oreover, such apprehensions even if translated into realities, would

e 'under control,' as ad2itted to the Court y said 2ilitary authorities, given the

resources and facilities at the co22and of govern2ent. )ut, aove all, the 8ilipino people

the2selves, in 2y opinion, will ;now how to handle any situation rought aout y a

political recognition of 7r. 7arcos: right to return, and his actual return, to this country. TheCourt, in short, should not accept respondents: general apprehensions, concerns and

perceptions at face value, in the light of a countervailing and even irresistile, speci6c,

clear, de2andale, and enforceale right asserted y a >ilipino.

Deteriorating political, social, econo2ic or eHceptional conditions, if any, are not to e used

as a preteHt to =ustify derogation of hu2an rights. 2

As a 2e2er of the 3nited "ations, the Philippines has oligations under its charter. )y

adopting the generally accepted principles of international law as part of the law of the

land, 0Art. , !ec. % of the Constitution1, the Philippine govern2ent cannot =ust pay lip

service to Art. #*, par. % of the 3niversal Declaration of (u2an Rights which provides that

everyone has the right to leave any country, including his own, and to return to $iscountr#. This guarantee is reiterated in Art. S, par. % of the nternational Covenant on Civil

and Political Rights which states that 'no one s$all be arbitraril# deprived of t$e rig$t to

enter $is o)n countr#.' 0E2phasis supplied1 'Aritrary' or 'aritrarily' was speci6cally

chosen y the drafters of the Covenant ;hoping to protect an individual against

uneHpected, irresponsile or eHcessive encroach2ent on his rights y the state ased on

national traditions or a particular sense of =ustice which falls short of international law or

standards. 4

The !olicitor eneral 2aintains that ecause the respondents, as alter egosof the

President, have raised the argu2ent of 'national security' and 'pulic safety,' it is the duty

of this Court to un


17/51

The only issue that saddles the Court is si2ply 'whether or not, in the eHercise of the

powers granted y the Constitution, the President 2ay prohiit the 7arcoses fro2

returning to the Philippines.' 1 therefore ta;e eHception to allusions 2anent 'the capacity

of the 7arcoses to stir troule even fro2 afar.' ; have legiti2ate reason to fear that 2y

rethren, in passing =udg2ent on the 7arcoses 0insofar as their 'capacity to stir troule' is

concerned1, have overstepped the ounds of =udicial restraint, or even worse, convicted

the2 without trial.

also 6nd irst @hile the Chief EHecutive eHercises powers not found eHpressly in the Charter, ut

has the2 y constitutional i2plication the latter 2ust yield to the para2ountcy of the )ill

of Rights. According to 8ernando 'A regi2e of constitutionalis2 is thus unthin;ale without

an assurance of the pri2acy of a ig of rights. Precisely a constitution eHists to assure that

in the discharge of the govern2ental functions, the dignity that is the irthright of every

hu2an eing is duly safeguarded. To e true to its pri2ordial ai2 a constitution 2ust lay

down the oundaries eyond which he:s foridden territory for state action' 8

7y rethren have not de2onstrated, to 2y satisfaction, how the President 2ay override

the direct 2andate of the funda2ental law. t will not suJce, so su2it, to say that thePresident:s plenitude of powers, as provided in the Constitution, or y sheer constitutional

i2plication, prevail over eHpress constitutional co22ands. 'Clearly,' so orrow +.)..

Reyes, in his own right, a titan in the 6eld of pulic law, 'this argu2ent ... rests ... not upon

the teHt of the 0ConstitutionG ... ut upon a 2ere inference therefro2.' 98or if it were,indeed, the intent of the Charter to create an eHception, that is, y Presidential action, to

the right of travel or lierty of aode and of changing the sa2e other than what it eHplicitly

says already 0'li2its prescried y law' 1>or 'upon lawful order of the court' 11the Chartercould have speci6cally declared so. As it is, the lone deterrents to the right in


18/51


19/51

7odesty aside, have staunchly and consistently advocated the hu2an right of travel and

2ove2ent and the lierty of aode. %5 @e would have etrayed our own deals if we

denied 7arcos his rights. t is his constitutional right, a right that can not e aridged y

personal hatred, fear, founded or unfounded, and y speculations of the '2an:s 'capacity'

'to stir troule' "ow that the shoe is on the other foot, let no 2ore of hu2an rights

violations e repeated against any one, friend or foe. n a de2ocratic fra2ewor;, there is

no this as getting even.

The 2a=ority started this in


20/51

valid =usti6cation for disallowing the re


21/51

authority has een delegated to the egislature or eHecutive ranch of

the overn2ent. t is concerned with issues dependent upon the wisdo2,

not legality, of a particular 2easure.

The 2ost often


22/51

As early as #$*, it was noted that this Court has not een very receptive to the invocation

of the political


23/51

The other 2ethod is to avail of =udicial notice. n this particular case, =udicial notice would

e the only asis for deter2ining the clear and present danger to national security and

pulic safety. The 2a=ority of the Court has ta;en =udicial notice of the Co22unist

reellion, the separatist 2ove2ent, the rightist conspiracies, and uran terroris2. )ut is it

fair to la2e the present day 7arcos for these incidentsM All these prole2s are totally

unrelated to the 7arcos of today and, in fact, are led y people who have always opposed

hi2. f we use the prole2s of overn2ent as eHcuses for denying a person:s right to co2e

ho2e, we will never run out of =ustifying reasons. These prole2s or others li;e the2 will

always e with us.

!igni6cantly, we do not have to loo; into the factual ases of the an 7arcos policy in

order to ascertain whether or not the respondents acted with grave ause of discretion. "orare we forced to fall ac; upon =udicial noticeof the i2plications of a 7arcos return to his

ho2e to uttress a conclusion.

n the 6rst place, there has never een a pronounce2ent y the President that a clear and

present danger to national security and pulic safety will arise if 7r. 7arcos and his fa2ily

are allowed to return to the Philippines. t was only after the present petition was 6led that

the alleged danger to national security and pulic safety conveniently surfaced in the

respondents: pleadings. !econdly, President A


24/51

The issuance of a passport 2ay e discretionary ut it should not e withheld if to do so

would run counter to a constitutional guarantee. )esides, the petitioners are not as;ing for

passports and nothing else. Any travel docu2ents or any for2al lifting of the 7arcos an as

would allow international airlines to sell the2 tic;ets would suJce.

@ith all due respect for the 2a=ority opinion, disagree with its dictu2 on the right to

travel. do not thin; we should di9erentiate the right to return ho2e fro2 the right to go

aroad or to 2ove around in the Philippines. f at all, the right to co2e ho2e 2ust e more

preferredthan any other aspect of the right to travel. t was precisely the anning y 7r.

7arcos of the right to travel y !enators )enigno A


25/51

when the people stood fast at ED!A against the threat of total 2assacre in defense at last

of their freedo2.

cannot turn ac; on the lessons of lierty that taught for 2ore than three decades as a

professor of Constitutional aw. These principles have not changed si2ply ecause a2

now on the Court or a new ad2inistration is in power and the shoe is on the other foot.

i;e the 2artyred "inoy A


26/51

%$ +uly #$. # have searched, ut in vain, for convincing evidence that would defeat and

overco2e the right of 7r. 7arcos as a >ilipinoto return to this country. t appears to 2e

that the apprehensions entertained and eHpressed y the respondents, including those

conveyed through the 2ilitary, do not, with all due respect, escalate to proportions of

national security or pulic safety. They appear to e 2ore speculative than real, osessive

rather than factual. 7oreover, such apprehensions even if translated into realities, would

e 'under control,' as ad2itted to the Court y said 2ilitary authorities, given the

resources and facilities at the co22and of govern2ent. )ut, aove all, the 8ilipino people

the2selves, in 2y opinion, will ;now how to handle any situation rought aout y a

political recognition of 7r. 7arcos: right to return, and his actual return, to this country. The

Court, in short, should not accept respondents: general apprehensions, concerns and

perceptions at face value, in the light of a countervailing and even irresistile, speci6c,clear, de2andale, and enforceale right asserted y a >ilipino.

Deteriorating political, social, econo2ic or eHceptional conditions, if any, are not to e used

as a preteHt to =ustify derogation of hu2an rights. 2

As a 2e2er of the 3nited "ations, the Philippines has oligations under its charter. )y

adopting the generally accepted principles of international law as part of the law of the

land, 0Art. , !ec. % of the Constitution1, the Philippine govern2ent cannot =ust pay lip

service to Art. #*, par. % of the 3niversal Declaration of (u2an Rights which provides that

everyone has the right to leave any country, including his own, and to return to $is

countr#. This guarantee is reiterated in Art. S, par. % of the nternational Covenant on Civil

and Political Rights which states that 'no one s$all be arbitraril# deprived of t$e rig$t to

enter $is o)n countr#.' 0E2phasis supplied1 'Aritrary' or 'aritrarily' was speci6cally

chosen y the drafters of the Covenant ;hoping to protect an individual against

uneHpected, irresponsile or eHcessive encroach2ent on his rights y the state ased on

national traditions or a particular sense of =ustice which falls short of international law or

standards. 4

The !olicitor eneral 2aintains that ecause the respondents, as alter egosof the

President, have raised the argu2ent of 'national security' and 'pulic safety,' it is the duty

of this Court to un


27/51

The 2a=ority says, with a2ple help fro2 A2erican precedents, that the President is

possessed of the power, thus

/n these pre2ises, we hold the view that although the #$& Constitution

i2poses li2itations on the eHercise of speci6c powers of the President, it

2aintains intact what is traditionally considered as within the scope of

'eHecutive power.' Corollarily, the powers of the President cannot e said

to e li2ited only to the speci6c powers enu2erated in the Constitution.

n other words, eHecutive power is 2ore than the su2 of speci6c powers

so enu2erated.

!o also

8aced with the prole2 of whether or not the ti2e is right to allow the

7arcoses to return to the Philippines, the President is, under the

Constitution, constrained to consider these asic principles in arriving at

a decision. 7ore than that, having sworn to defend and uphold the

Constitution, the President has the oligation under the Constitution to

protect the people, pro2ote their welfare and advance the national

interest. t 2ust e orne in 2ind that the Constitution, aside fro2 eing

an allocation of power is also a social contract wherey the people have

surrendered their sovereign powers to the !tate for the co22on good.

(ence, lest the oJcers of the overn2ent eHercising the powers

delegated y the people forget and the servants of the people eco2erulers, the Constitution re2inds everyone that 'sovereignty resides in the

people and all govern2ent authority e2anates fro2 the2.' FArt. , !ec.

# . G irst @hile the Chief EHecutive eHercises powers not found eHpressly in the Charter, ut

has the2 y constitutional i2plication the latter 2ust yield to the para2ountcy of the )ill

of Rights. According to 8ernando 'A regi2e of constitutionalis2 is thus unthin;ale without

an assurance of the pri2acy of a ig of rights. Precisely a constitution eHists to assure that

in the discharge of the govern2ental functions, the dignity that is the irthright of every

hu2an eing is duly safeguarded. To e true to its pri2ordial ai2 a constitution 2ust lay

down the oundaries eyond which he:s foridden territory for state action' 8

7y rethren have not de2onstrated, to 2y satisfaction, how the President 2ay override

the direct 2andate of the funda2ental law. t will not suJce, so su2it, to say that the

President:s plenitude of powers, as provided in the Constitution, or y sheer constitutional

i2plication, prevail over eHpress constitutional co22ands. 'Clearly,' so orrow +.)..

Reyes, in 7s own right, a titan in the 6eld of pulic law, 'this argu2ent ... rests ... not upon

the teHt of the 0ConstitutionG ... ut upon a 2ere inference therefro2.' 98or if it were,indeed, the intent of the Charter to create an eHception, that is, y Presidential action, to

the right of travel or lierty of aode and of changing the sa2e other than what it eHplicitly

says already 0'li2its prescried y law' 1>or 'upon lawful order of the court' 11the Chartercould have speci6cally declared so. As it is, the lone deterrents to the right in


28/51

sa2e ti2e, we have persistent clai2s, 2ade y the 2ilitary top rass during the lengthy

closed-door hearing on +uly %5, #$, that 'this overn2ent will not fall' should the for2er

6rst fa2ily in eHile step on Philippine soil. which is whichM

At any rate, it is 2y opinion that we can not leave that deter2ination solely to the Chief

EHecutive. The Court itself 2ust e content that the threat is not only clear, ut 2ore so,

present.18

That the President 'has the oligation under the Constitution to protect the people ... ' 19isan oligation open to no dout. )ut the As indicated, not one shred of evidence, let alone solid evidence, other than

sur2ises of possiilities, has een shown to =ustify the :alancing act' referred to. @orse,

these con=ectures contradict contentions that as far as Philippine society is concerned,7arcos is 'history'.

The power of the President, so 2y rethren declai2, 'calls for the eHercise of the

President:s power as protector of peace. 21

This is the self-sa2e falsehood 7arcos foisted on the 8ilipino people to =ustify the

authoritarian rule. t also 2eans that we are no etter than he has.

That 'FtGhe power of the President to ;eep the peace is not li2ited 2erely to eHercising the

co22ander-in-chief powers in ti2es of e2ergency or to leading the !tate against eHternal

and internal threats to its eHistence' 22is a igger fantasy t not only su22ons the 2artial

law decisions of pre-'ED!A' 0especially with respect to the detestale A2end2ent "o. 1, itis inconsistent with the eHpress provisions of the co22ander-in-chief clause of the #$&

Charter, a Charter that has perceptily reduced the EHecutive:s powers vis3a3visits #&*

counterpart. 2;

.

The undersigned would e lac;ing in candor to conceal his disli;e, to say the least, for

7arcos. )ecause of 7arcos, the writer of it:s dissent lost a son (is son:s only 'o9ense' was

that he openly and unaatedly criticied the dictator, his associates, and his 2ilitary

2achinery. (e would pay dearly for it? he was arrested and detained, without =udicial

warrant or decision, for seven 2onths and seven days. (e was held incommunicadoa

greater part of the ti2e, in the 2ilitary stoc;ade of Ca2p Cra2e. n his last wee; indetention, he was, grudgingly, hospitalied 0prison hospital1 and con6ned for chronic

asth2a. The deplorale conditions of his i2prison2ent eHacerated his delicate health

eyond cure. (e died, on "ove2er ##, #&&, a 2artyr on the altar of the 2artial law

apparatus.

The undersigned also counts hi2self as one of the victi2s of 7arcos: ruthless apparatc$i;i.

/n August #4, #&, he was, along with for2er President Diosdado 7acapagal, and

Congress2en Rogaciano 7ercado and 7anuel Concordia, charged, 'A!!/ed'and placed

under house arrest, for 'inciting to sedition' and 'ru2or 2ongering ' 24in the 2idst of the

distriution ofng 'emo;ras#a Sa !ilipinas ?'emocrac# %n t$e !$ilippines@, a oo;

eHtre2ely critical of 2artial rule, pulished y hi2 and for2er Congress2an Concordia,

authored y President 7acapagal and translated into Tagalog y Congress2an Rogaciano

7ercado. n addition, they were also all accused of liel in 2ore than two doens of cri2inal

co2plaints 6led y the several 2ilitary oJcers na2ed in the 'conde2ned' oo; as havingviolated the hu2an rights of dissenters, and for other cri2es, in the oJce of the Provincial

8iscal of Rial. t had to ta;e the events at 'ED!A' to set the2 free fro2 house arrest and

these political o9enses. a2 for 7arcos: return not ecause have a score to settle with

hi2. Ditto:s death or 2y arrest are scores that can not e settled.

feel the eH-President:s death aroad 0presented in the dailies as :i22inent'1 would leave

hi2 :unpunished for 7s cri2es to country and country2en. f punish2ent is due, let this

leadership inOict it. )ut let hi2 stand trial and accord hi2 due process.

7odesty aside, have staunchly and consistently advocated the hu2an right of travel and

2ove2ent and the lierty of aode. %5 @e would have etrayed our own deals if we

denied 7arcos his rights. t is his constitutional right, a right that can not e aridged ypersonal hatred, fear, founded or unfounded, and y speculations of the '2an:s 'capacity'

'to stir troule' "ow that the shoe is on the other foot, let no 2ore of hu2an rights

violations e repeated against any one, friend or foe. n a de2ocratic fra2wor;, there is no

this as getting even.

The 2a=ority started this in, 198ilemon Sotto for p lainti8.*ce of t$e Solicitor36eneral !aredes for defendant.

/ALCOL/,J.

n one of the cases which denote a land2ar; in A2erican Constitutional (istory0@orcester vs.eorgia F#$*%G, Pet., 5#51, Chief +ustice 7arshall, the 6rst lu2inary of

A2erican =urisprudence, egan his opinion 0relating to the status of an ndian1 with wordswhich, with a slight change in phraseology, can e 2ade to introduce the present opinionL This cause, in every point of view in which it can e placed, is of the deepest interest.

The legislative power of state, the controlling power of the constitution and laws, the rightsif they have any, the political eHistence of a people, the personal lierty of a citien, are allinvolved in the su=ect now to e considered.

To i2itate still further the opinion of the Chief +ustice, we adopt his outline and proceed6rst, to introduce the facts and the issues, neHt to give a history of the so called 'non-Christians,' neHt to co2pare the status of the 'non-Christians' with that of the A2ericanndians, and, lastly, to resolve the constitutional


32/51

%. That said resolution "o. %5 0series ##&1 of the provincial oard of 7indoro wasapproved y the !ecretary of the nterior of 8eruary %#, ##&.

*. That on Dece2er 4, ##&, the provincial governor of 7indoro issued eHecutiveorder "o. % which says

'@hereas the provincial oard, y Resolution "o. %5, current series, hasselected a site in the sitio of Tigao on "au=an a;e for the per2anentsettle2ent of 7angyanes in 7indoro.

'@hereas said resolution has een duly approve y the (onorale, the!ecretary of the nterior, on 8eruary %#, ##&.

'"ow, therefore, , +uan 7orente, =r., provincial governor of 7indoro,pursuant to the provisions of section %#45 of the revised Ad2inistrativeCode, do herey direct that all the 7angyans in the townships of "au=anand Pola and the 7angyans east of the )aco River including those in thedistricts of Dulangan and Rui:s place in Calapan, to ta;e up theirhaitation on the site of Tigao, "au=an a;e, not later than Dece2er*#, ##&.

'Any 7angyan who shall refuse to co2ply with this order shall uponconviction e i2prisoned not eHceed in siHty days, in accordance withsection %&5 of the revised Ad2inistrative Code.'

4. That the resolution of the provincial oard of 7indoro copied in paragraph # andthe eHecutive order of the governor of the sa2e province copied in paragraph *,were necessary 2easures for the protection of the 7angyanes of 7indoro as wellas the protection of pulic forests in which they roa2, and to introduce civiliedcusto2s a2ong the2.

5. That Rui and those living in his rancheria have not 6Hed their dwelling withinthe reservation of Tigao and are liale to e punished in accordance with section%&5 of Act "o. %#.

. That the undersigned has not infor2ation that Doroteo Daalos is eingdetained y the sheri9 of 7indoro ut if he is so detained it 2ust e y virtue ofthe provisions of articles "os. %#45 and %&5 of Act "o. %#.

t thus appears that the provincial governor of 7indoro and the provincial oard thereofdirected the 7anguianes in 3!T/" /8 T(E P(PP"E ) T(E 3"TED !TATE!.

The 2ost i2portant of the laws of the ndies having reference to the su=ect at hand areco2piled in )oo; I, Title , in the following language.

A@ .

The E2peror Charles and the Prince, the governor, at Cigales, on 7arch %#, #55#.Philip at Toledo, on 8eruary #, #5. n the forest of !egovia on !epte2er #*,#55. n the Escorial on "ove2er #, #5$. /rdinance #4 of the polaciones of#5&*. n !an oreno, on 7ay %, #5&$,

T(AT T(E '"D/!' )E RED3CED "T/ 'P/)AC/"E!' C/773"TE!1.

n order that the indios2ay e instructed in the !acred Catholic 8aith and theevangelical law, and in order that they 2ay forget the lunders of their ancientrites and cere2onies to the end that they 2ay live in har2ony and in a civilied2anner, it has always een endeavored, with great care and special attention, touse all the 2eans 2ost convenient to the attain2ent of these purposes. To carryout this wor; with success, our Council of the ndies and other religious persons2et at various ti2es? the prelates of new !pain asse2led y order of E2perorCharles I of glorious 2e2ory in the year one thousand 6ve hundred and forty-siHL all of which 2eetings were actuated with a desire to serve od an our Ningdo2.At these 2eetings it was resolved that indiose 2ade to live in co22unities, andnot to live in places divided and separated fro2 one another y sierras and2ountains, wherein they are deprived of all spiritual and te2poral ene6ts andwherein they cannot pro6t fro2 the aid of our 2inisters and fro2 that which givesrise to those hu2an necessities which 2en are oliged to give one another.(aving realied that convenience of this resolution, our ;ings, our predecessors,y di9erent orders, have entrusted and ordered the viceroys, presidents, and

governors to eHecute with great care and 2oderation the concentration of e considered fraudulently otained The penalty of one thousand pesos shall e


33/51

governors to eHecute with great care and 2oderation the concentration ofthe indiosinto reducciones? and to deal with their doctrine with such forearanceand gentleness, without causing inconveniences, so that those who would notpresently settle and who would see the good treat2ent and the protection ofthose already in settle2ents would, of their own accord, present the2selves, andit is ordained that they e not re


34/51

force therein? while, on other hand, it is the duty to conscience and to hu2anityfor all govern2ents to civilie those ac;ward races that 2ight eHist in the nation,and which living in the oscurity of ignorance, lac; of all the nations which enalethe2 to grasp the 2oral and 2aterial advantages that 2ay e ac


35/51

as the ones who elect such oJcials under the direct charge of the authorities ofthe province or district.

#. The races indicated in the preceding article, who voluntarily ad2it theadvantages o9ered, shall, in return, have the oligation of constituting their newtowns, of constructing their town hall, schools, and country roads which placethe2 in co22unication with one another and with the Christians? provided, thelocation of these towns e distant fro2 their actual residences, when the latter donot have the good conditions of location and cultivations, and provided further theputting of fa2ilies in a place so selected y the2 e authoried in the townsalready constituted.

##. The ar2ed force shall proceed to the prosecution and punish2ent of thetries, that, disregarding the peace, protection, and advantages o9ered the2,continue in their reellious attitude on the 6rst of neHt April, co22itting fro2 nowon the cri2es and veHations against the Christian towns? and for the thispurposes, the Captain eneral:s /Jce shall proceed with the organiation of thedivisions of the Ar2y which, in con=unction with the rural guards 0cuadrilleros1,shall have to enter the territory of such tries. /n the eHpiration of the ter2, theyshall destroy their dwelling-houses, laors, and i2ple2ents, and con6scate theirproducts and cattle. !uch a punish2ent shall necessarily e repeated twice ayear, and for this purpose the 2ilitary head


36/51

pp , gIicaya, Acts "os. 4###, 4%%, 445, 5, 54&, 54$, 54, 55, 5&, &5*, $55, ###*, ##45,45$, #* were enacted for the provinces of Ara, Anti


37/51

pp p pp yother non-Christian tries.

!ection %#45, is found in article S of the Provincial aw of the Ad2inistrative Code. The6rst section of this article, preceding section %#45, 2a;es the provisions of the articleapplicale only in specially organied provinces. The specially organied provinces are the7ountain Province, "ueva Iicaya, 7indoro, )atanes, and Palawan. These are theprovinces to which the Philippine egislature has never seen 6t to give all the powers oflocal self-govern2ent. They do not, however, eHactly coincide with the portion of thePhilippines which is not granted popular representation. "evertheless, it is still ageographical description.

t is well-;nown that within the specially organied provinces, there live persons so2e ofwho are Christians and so2e of who2 are not Christians. n fact, the law speci6callyrecognies this. 0 !ec. %4%%, Ad2inistrative Code of ##&, etc.1

f the religious conception is not satisfactory, so against the geographical conception isli;ewise inad


38/51

follows 0nternal Revenue 7anual, p. %#41

The internal revenue law eHe2pts '2e2ers of non-Christian tries' fro2 thepay2ent of cedula taHes. The Collector of nternal Revenue has interpreted thisprovision of law to 2ean not that persons who profess so2e for2 of Christianworship are alone su=ect to the cedula taH, and that all other person are eHe2pt?he has interpreted it to 2ean that all persons preserving trial relations with theso-called non-Christian tries are eHe2pt fro2 the cedula taH, and that all others,including +ews, 7oha22edans, Confucians, )uddists, etc., are su=ect to said taHso long as they live in cities or towns, or in the country in a civilied condition. nother words, it is not so 2uch a 2atter of a 2an:s for2 of religious worship orprofession that decides whether or not he is su=ect to the cedula taH? it is 2oredependent on whether he is living in a civilied 2anner or is associated with the2ountain tries, either as a 2e2er thereof or as a recruit. !o far, this uite a large proportion ofthe cedula taHes paid in this city are paid y 2en elonging to the nationalities2entioned. China2en, Aras and other s are inance and Justice.

The two circular aove


39/51

inhaitants of the Philippines which live in tries as non-Christian tries, asdistinguished fro2 the co22on 8ilipinos which carry on a social and civilied life,did not intended to estalish a distinction ased on the religious eliefs of theindividual, ut, without dwelling on the diJculties which later would eoccasioned y the phrase, adopted the eHpression which the !panish legislatione2ployed to designate the uncivilied portion of the inhaitants of the Philippines.

The phrase :non-Christian inhaitants: used in the provisions of articles %&& and%&4# of Act "o. %5& 0articles %#45 and %&51 should e understood as e


40/51

t see2s to us that this 0e9ect of the law1 is within the co2petency of Congress.These ndian tries are the wards of the nation. The areco22unities dependent on the 3nited !tates. dependent largely for their dailyfood. Dependent for their political rights. They owe no allegiance to the !tates,and receive fro2 the no protection. )ecause of the local ill feeling, the people ofthe !tates where they are found are often their deadliest ene2ies. 8ro2 their verywea;ness and helplessness, so largely due to the course of dealing of the 8ederalovern2ent with the2 and the treaties in which it has een pro2ised, there arisethe duty of protection, and with it the power. This has always een recognied ythe EHecutive and y Congress, and y this court, whenever the


41/51

deter2ine that Rui, the 7anguian petitioner, a 8ilipino, and a citien of the Philippineslands, is a 'person' within the 2eaning of the(abeas CorpusAct, and as such, entitled tosue out a writ in the Philippine courts. 0!ee also %n reRace (orse F#$5G, & 8ed., 5$.1 @eso decide.

As to the second point the facts in the !tanding )ear case an the Rui case are not eHactlyidentical. )ut even ad2itting si2ilarity of facts, yet it is ;nown to all that ndianreservations do eHist in the 3nited !tates, that ndians have een ta;en fro2 di9erent partsof the country and placed on these reservation, without any previous consultation as totheir own wishes, and that, when once so located, they have een 2ade to re2ain on thereservation for their own good and for the general good of the country. f any lesson can edrawn for2 the ndian policy of the 3nited !tates, it is that the deter2ination of this policyis for the legislative and eHecutive ranches of the govern2ent and that when once sodecided upon, the courts should not interfere to upset a carefully planned govern2entalsyste2. Perhaps, =ust as 2ay forceful reasons eHists for the segregation as eHisted for thesegregation of the di9erent ndian tries in the 3nited !tates.

I. C/"!TT3T/"A >3E!T/"!.

A. DEEAT/" /8 E!ATIE P/@ER.

The 6rst constitutional o=ection which confronts us is that the egislature could notdelegate this power to provincial authorities. n so atte2pting, it is contended, thePhilippine egislature has adicated its authority and avoided its full responsiility.

That the 2aHi2 of Constitutional aw foridding the delegation of legislative power shoulde ealously protected, we agree. An understanding of the rule will, however, disclose thatit has not ee violated in h is instance.

The rule has nowhere een etter stated than in the early /hio case decided y +udgeRanney, and since followed in a 2ultitude of case, na2ely 'The true distinction therefore isetween the delegation of power to 2a;e the law, which necessarily involves a discretionas to what it shall e, and conferring an authority or discretion as to its eHecution, to eeHercised under and in pursuance of the law. The 6rst cannot e done? to the later no valido=ection can e 2ade.' 0Cincinnati, @. K Q. R. Co. vs.Co22:rs. Clinton County F#$5%G, #/hio !.t, $$.1 Discretion, as held y Chief +ustice 7arshall in @ay2an vs.!outhard 0F#$%5G,# @heat., #1 2ay e co22itted y the egislature to an eHecutive depart2ent or oJcial.

The egislature 2ay 2a;e decisions of eHecutive depart2ents of suordinate oJcialthereof, to who2 t has co22itted the eHecution of certain acts, 6nal on


42/51

Christian.

The conception of civil lierty has een variously eHpressed thus

Every 2an 2ay clai2 the fullest lierty to eHercise his faculties, co2patile withthe possession of li;e lierty y every other. 0!pencer, !ocial !tatistics, p. 4.1

ierty is the creature of law, essentially di9erent fro2 that authoriedlicentiousness that trespasses on right. That authoried licentiousness thattrespasses on right. %t is a legal and a re5ned idea, t$e o8spring of $ig$civiliDation, which the savage never understood, and never can understand.

ierty eHists in proportion to wholeso2e restraint? the 2ore restraint on others to;eep o9 fro2 us, the 2ore lierty we have . . . that 2an is free who is protectedfro2 in=ury. 0 @ester:s @or;s, p. **.1

ierty consists in the aility to do what one caught to desire and in not eingforced to do what one ought not do desire. 07ontes


43/51

eHcept as a punish2ent for cri2e whereof the party shall have een duly convicted. t is


44/51

agriculture.

0f 1 The encourage2ent of i22igration into, and of the invest2ent of privatecapital in, the fertile regions of 7indanao and !ulu.

The !ecretary adds

To attain the end desired, wor; of a civiliing inOuence have een continueda2ong the non-Christian people. These people are eing taught and guided toi2prove their living conditions in order that they 2ay fully appreciate the ene6tsof civiliation. Those of the2 who are still given to no2adic haits are eing

persuaded to aandon their wild haitat and settle in organied settle2ents. Theyare eing 2ade to understand that it is the purpose of the overn2ent toorganie the2 politically into 6Hed and per 2anent co22unities, thus ringingthe2 under the control of the overn2ent, to aid the2 to live and wor;, protectthe2 fro2 involuntary servitude and ause, educate their children, and showthe2 the advantages of leading a civilied life with their civilied rothers. nshort, they are eing i2pressed with the purposes and o=ectives of theovern2ent of leading the2 to econo2ic, social, and political e


45/51

has een placed in the alternative of either letting the2 alone or guiding the2 inthe path of civiliation. The latter 2easure was adopted as the one 2ore in accordwith hu2anity and with national conscience.

HHH HHH HHH

The national legislation on the su=ect of non-Christian people has tended 2oreand 2ore towards the education and civiliation of such people and 6tting the2 toe citiens. The progress of those people under the tutelage of the overn2ent isindeed encouraging and the signs of the ti2es point to a day which is not fardistant when they will eco2e useful citiens. n the light of what has already

een acco2plished which has een winning the gratitude of 2ost of the ac;wardpeople, shall we give up the nole wor; si2ply ecause a certain ele2ent,elieving that their personal interests would e in=ured y such a 2easure hasco2e forward and challenged the authority of the overn2ent to lead this peoplein the pat of civiliationM !hall we, after eHpending sweat, treasure, and evenlood only to redee2 this people fro2 the claws of ignorance and superstition,now willingly retire ecause there has een erroneously invo;ed in their favor thatConstitutional guaranty that no person shall e deprived of his lierty without dueprocess of lawM To allow the2 to successfully invo;e that Constitutional guarantyat this ti2e will leave the overn2ent without recourse to pursue the wor;s ofciviliing the2 and 2a;ing the2 useful citiens. They will thus left in a per2anentstate of savagery and eco2e a vulnerale point to attac; y those who dout,nay challenge, the aility of the nation to deal with our ac;ward rothers.

The 2anguianes in


46/51

new


47/51

7indoro.

/f course, friendly head2en or chief 2ight and, as a rule, should e consulted, after thepractice in the 3nited !tates when tries or groups of A2erican ndians have een placedupon reservations? ut since non-Christian head 2en and chiefs in the Philippines have nolawful authority to ind their acts or their consent, the o=ection ased on lac; of a hearing,would have the sa2e force whether the issuance of a reconcentration order was or was notpreceded y apo)3)o)of this ;ind.

The truth of the 2ater is that the power to provide for the issuance of such orders restsupon analogous principles to those upon which the lierty and freedo2 or action of

children and persons of unsound 2inds is restrained, without consulting their wishes, utfor their own good and the general welfare. The power rests upon necessity, that 'great2aster of all things,' and is properly eHercised only where certain individuals or groups ofindividual are found to e of such a low grade of civiliation that their own wishes cannote per2itted to deter2ine their 2ode of life or place of residence.

The status of the non-Christian inhaitants of these slands, and the special and necessarilypaternal attitude assu2e toward the2 y the nsular overn2ent is well illustrated y thefollowing provisions found in the Ad2inistrative Code of ##&

!EC. &5. !pecial duties and purposes of )ureau 0of non-Christian tries1. L tshall e the duty of the )ureau of non-Christian tries to continue the wor; foradvance2ent and lierty in favor of the regions inhaited y non-Christian8ilipinos and to foster y all ade


48/51

y y p g pthe punish2ent.

The attorney for the petitioners has raised various constitutional


49/51

g y pt$e# )ill be sub=ected to involuntar# servitude b# t$ose )$o )ant to abuse t$em.I T$e#$ave never been a burden to t$e state and never )ill be. T$e# $ave not committed crimesand, )$en t$e# do, let t$e la) punis$ t$em.' The authorities are anticipating too 2uchfro2 these 'peaceful, ti2id, pri2itive, se2i-no2adic people.' Their history does notde2onstrate that we 2ust eHpect the2 to co22it cri2es and =ail the2 to prevent thepossiility. )ut the !ecretary says 'they will e su=ected to involuntary servitude y thosewant to ause the2.' Are they 2ore liale to e su=ected to involuntary servitude whenleft free to roa2 their native hills and gain a livelihood as they have een accusto2ed tofor hundreds of years, than they will e if closely con6ned on a narrow reservation fro2which they 2ay not escape without facing a ter2 in =ailM s not 2ore li;ely that they will eglad to eHchange their 'freedo2' on a s2all reservation for the great oon of inding

the2selves and their children to the 2ore fortunate Christian 8ilipinos who will feed the2and clothe the2 in return of their services.M

t thin; it not only proale ut al2ost a certainty that they will e all e su=ected toinvoluntary personal servitude if their freedo2 is li2ited as it has een. (ow will they liveM

There 2ay e persons who are willing to lend the2 2oney with which to uy food on thepro2ise that they will wor; for the2. And if they accept the loan and do not wor; for thelender we have another law on the statute oo;s, Act "o. %$, into whose noose they runtheir nec;s, and they 2ay e 6ned not 2ore than two hundred pesos or i2prison2ent fornot eHceeding siH 2onths or oth, and when the sentence eHpires they 2ust again go intodet or starve, and if they do not wor; will again go to =ail, and this 2aye repeated tillthey are too old to wor; and are cast adrift.

The 2anguianes have co22itted no o9enses and are charged with none. t does not

appear they were ever consulted aout their reconcentration. t does not appear that theyhad any hearing or were allowed to 2a;e any defense. t see2s they were gathered hereand there whenever found y the authorities of the law and forcily placed upon thereservation, ecause they are 'non-Christian,' and ecause the provincial governor orderedit. et it e clear there is no discri2ination ecause of religion. The ter2 'non-Christian'2eans one who is not a Christian 8ilipino, ut it also 2eans any of the so-called 'wild' orac;ward tries of the Philippines. These non-Christian tries are 7oros, gorrotes,)u;idnons, fugaos, 7anguianes and various others, aout one 2illions souls all together.!o2e of the2, li;e the 7oros, Tinguianes and fugaos, have 2ade great progress inciviliation. The have eautiful 6elds reclai2ed y hard laor L they have herds of cattleand horses and so2e few of the2 are well educated. !o2e of the non-Christians, li;e theAetas and the "egritos, are very low in the scale of civiliation, ut they are one and all'non-Christians,' as the ter2 is used and understood in law and in fact.

All of the2, according to the court:s opinion under the present law, 2ay e ta;en fro2 theirho2es and herded on a reservation at the instance of the provincial governor, with theprior approval of the depart2ent head. To state such a 2onstrous proposition is to showthe wic;edness and illegality of the section of the law under which these people arerestrained of their lierty. )ut it is argued that there is no proaility of the depart2enthead ever giving his approval to such a cri2e, ut the fact that he can do it and has done itin the present case in what 2a;es the law unconstitutional. The aritrary andunrestrictedpo)er to do har2 should e the 2easure y which a law:s legality is testedand not the proaility of doing har2.

t has een said that this is a govern2ent of laws and not of 2en? that there is noaritrary ody of individuals? that the constitutional principles upon which ourgovern2ent and its institutions rest do not leave roo2 for the play and action ofpurely personal and aritrary power, ut that all in authority are guided andli2ited y these provisions which the people have, the through the organic law,

declared shall e the 2easure and scope of all control eHercised over the2. nparticular the fourteenth a2end2ent, and especially the e


50/51

under this law to ta;e the non-Christian inhaitants of their di9erent provinces for2 theirho2es and put the2 on a reservation for 'their own good and the general good of thePhilippines,' and the court will grant the2 no relief. These unfortunate citiens of thePhilippine slands would hold their lierty, and their lives, 2ay e, su=ect to theunregulated discretion of the provincial governor.

And who would e safeM

After the reservation is once estalished 2ight not a provincial governor decide that so2epolitical ene2y was a non-Christian, and that he would e safer on the reservation. "o

2atter what his education and culture, he could have no trial, he could 2a;e no defense,the =udge of the court 2ight e in a distant province and not within reach, and theprovincial governor:s 6at is 6nal.

The case of the 3nited !tates vs.Croo; 08ederal Cases #4$#1, cited in the 2a=orityopinion, should e


51/51

The Poncas lived upon their reservation in southern Da;ota, and cultivated aportion of the sa2e, until two or three years ago, when they re2oved therefro2,ut whether y force or otherwise does not appear. At all event, we 6nd a portionof the2, including the relators, located at so2e point in the ndian Territory. There,the testi2ony see2s to show, is where the troule co22enced. !tanding )ear,the principal witness, states that out of 6ve hundred and eighty-one ndians whowent fro2 the reservation in Da;ota to the ndian Territory, one hundred and 6fty-eight died within a year or so, and a great proportion of the others were sic; anddisaled, caused, in a great 2easure, no dout, fro2 change of cli2ate? and tosave hi2self and the survivors of his wasted fa2ily, and the feele re2nant of hislittle and of followers, he deter2ined to leave the ndian Territory and return to

his old ho2e, where, to use his own language, 'he 2ight live and die in peace,and e uried with his fathers.' (e also stated that he infor2ed the agent of their6nal purpose to leave, never to return, and that he and his followers had 6nally,fully, and forever severed his and their connection with the Ponca trie of ndians,and had resolved to disand as a trie, or and of ndians, and to cut loose fro2the govern2ent, go to wor;, eco2e self-sustaining, and adopt the haits andcusto2s of a higher civiliation. To acco2plish what would see2 to e a desiraleand laudale purpose, all who were ale to do so went to wor; to earn a living.

The /2aha ndians, who spea; the sa2e language, and with who2 2any of thePoncas have long continued to inter2arry, gave the2 e2ploy2ent and ground tocultivate, so as to 2a;e the2 self-sustaining. And it was when at the /2aha

clai2 to e unale to see the =ustice, or reason, or wisdo2, or necessity, ofre2oving the2 y force fro2 their own native plains and lood relations to a far-o9 country, in which they can see little ut new-2ade graves opening for theirreception. The land fro2 which they Oed in fear has no attractions for the2. Thelove of ho2e and native land was strong enough in the 2inds of these people toinduce the2 to rave every peril to return and live and die where they had eenreared. The ones of the dead son of !tanding )ear were not to repose in the landthey hoped to e leaving forever, ut were carefully preserved and protected andfor2ed a part of what was to the2 2elancholy procession ho2eward. !uchinstances of parental a9ections, and such love ho2e and native land, 2ay eheathen in origin, ut it see2s to that they are not unli;e Christian in principle.

And the court declared that the ndians were illegally held y authority of the 3nited !tatesand in violation of their right to life, lierty, and the pursuit of happiness, and ordered theirrelease fro2 custody.

This case is very si2ilarly to the case of !tanding )ear and others.

thin; this Court should declare that section %#45 and %&5 of the Ad2inistrative Code of##& are unconstitutional, null and void, and that the petitioners are illegally restrained oftheir lierty, and that they have een denied the e

consti2_liberty abode cases

Documents