A rejoinder to Senator Drilon

For saying that under martial law, arrests can be made without warrants of persons involved in a rebellion or acts relating to invasion, and that travel especially to the area where there is fighting can be restricted (Inquirer News, page A4, 5/25/17), I have been “reminded” by Sen. Franklin Drilon that “the Bill of Rights cannot be set aside even under martial law or even when the privilege of the writ of habeas corpus is suspended.”

It is indeed true that Art. VII, Sec. 18 of the 1987 Constitution now in part provides that a state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or the legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged with rebellion or offenses inherent in or directly connected with the invasion.

During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days; otherwise, he or she shall be released.

Now it is argued that it would violate the Bill of Rights to make warrantless arrests even when the privilege of the writ of habeas corpus is suspended. But why isn’t it also a violation of the Bill of Rights if warrantless arrests are made under Rule 113, Sec. 5 of the Rules of Court, which Senator Drilon cites as the only instances where warrantless arrests can be made?

To argue that when martial law or the suspension of the privilege of the writ of habeas corpus is declared, the arrest without warrant of those involved in rebellion or acts of invasion cannot be made without violating the Bill of Rights is to make this power of the President as Commander-in-Chief of the armed forces useless. How is he “to prevent … invasion or rebellion” if the military must first secure a warrant from the courts before it can make arrests? As the US Supreme Court held in Peabody v. Moyer, 212 US 78, 85 (1909), in an opinion by Justice Holmes, “So long as such arrests are made in good faith and in the honest belief that they are needed in order to head the insurrection off, the Governor is the final judge, and cannot be subjected to an action after he is out of office on the ground that he had not reasonable ground for his belief.”

In the same interview I gave that was reported in the Inquirer, I said that if the privilege of the writ of habeas corpus is not also suspended, courts can determine the legality of the arrest on grounds other than that it was made without judicial warrant. Courts can determine whether there was probable cause for the arrest or whether it is for other crimes than rebellion or acts related to invasion. On the other hand, if the privilege of the writ is also suspended as provided in Proclamation 216, the courts cannot entertain petitions for writ of habeas corpus for the purpose of inquiring into the legality of the arrest.

Based on reports coming from Marawi City, there is rebellion as provided in Art. 134 of the Revised Penal Code, and public safety requires the suspension of the privilege of the writ or the declaration of martial law. It is for Congress to review the President’s action and for the courts in appropriate cases to determine the sufficiency of the factual basis of his action (Constitution, Art. VII, Sec. 18; Lansang v. Garcia, 42SCRA 448 (1971)).
Vicente V. Mendoza is a retired justice of the Supreme Court and faculty member of the University of the Philippines College of Law.