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Randolf De Castro

Legal Couselling

POLITICAL OR JUSTICIABLE QUESTION


By
Prof. CECILIO L. PE

In Taada vs. Cuenco (G.R. No. L-10520, February 28, 1957), the Supreme Court, citing
Corpus Juris Secundum, said that the term political question refers to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the legislature or executive branch of the
Government.
In other words, a political question is one which the courts are not authorized by the
Constitution to resolve. The problem boils down to whether or not the Constitution vests in the
courts any power to resolve the issue. If it does, the issue is justiciable; otherwise, it is political.
It has been held that where the question involved in a case is whether or not the manner
or procedure prescribed in the Constitution has been complied with, such is a justiciable and not
a political question.
In Gonzales vs. COMELEC (21 SCRA 774), the issue whether or not a Resolution of
Congressacting as a constituent assemblyviolates the Constitution is essentially justiciable
not political, and, hence, subject to judicial review, and, to the extent that this view may be
inconsistent with the stand taken in Mabanag v. Lopez Vito, (supra) the latter should be deemed
modified accordingly. The Members of the Court are unanimous on this point.
In Tolentino vs. COMELEC (41 SCRA 702), The Supreme Court ruled:
It being manifest that there are powers which the Convention may not and cannot validly assert,
much less exercise, in the light of the existing Constitution, the simple question arises, should an
act of the Convention be assailed by a citizen as being among those not granted to or inherent in
it, according to the existing Constitution, who can decide whether such a contention is correct or
not?
We need not go far in search for the answer to the query we have posed. The very decision
of Chief Justice Concepcion in Gonzales, so much invoked by intervenors, reiterates and re-
enforces the irrefutable logic and wealth of principle in the opinion written for a unanimous
Court by Justice Laurel in Angara vs. Electoral Commission, 63 Phil., 134, reading:
. . . (I)n the main, the Constitution has blocked out with deft strokes and in bold lines,
allotment of power to the executive, the legislative and the judicial departments of the
government. The overlapping and interlacing of functions and duties between the several
departments, however, sometimes makes it hard to say where the one leaves off and the other
begins. In times of social disquietude or political excitement, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated. In case of conflict, the
judicial department is the only constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and among the integral or
constituents units thereof.
In Javellana vs. Executive Secretary (50 SCRA 30), Chief Justice Roberto Concepcion,
speaking for a majority of six Members of the Court (who believed the question of ratification to
be justiciable as against the contrary opinion of three Members and a qualified view of one),
said:
The plebiscite cases, was rejected the theory of the respondents therein that the question
whether Presidential Decree No. 73 calling a plebiscite to be held on January 15, 1973, for the
ratification or rejection of the proposed new Constitution, was valid or not, was not a proper

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subject of judicial inquiry because, they claimed, it partook of a political nature, and
We unanimously declared that the issue was a justiciable one. With identical unanimity, We
overruled the respondents contention in the 1971 habeas corpus cases, questioning our authority
to determine the constitutional sufficiency of the factual bases of the Presidential proclamation
suspending the privilege of the writ of habeas corpus on August 21, 1971, despite the opposite
view taken by this Court in Barcelon v. Baker and Montenegro v. Castaeda, insofar as it
adhered to the former case, which view it was abandoned and refused to apply. For the same
reason it did not apply and expressly modified, in Gonzales v. Commission on Elections, the
political-question theory adopted in Mabanag v. Lopez Vito. Hence, respondents herein urge the
Court to reconsider the action thus taken by the Court and to revert to and follow the views
expressed inBarcelon v. Baker and Mabanag v. Lopez Vito.
The reasons adduced in support thereof are, however, substantially the same as those given
in support of the political-question theory advanc0ed in said habeas corpus and plebiscite cases,
which were carefully considered by this Court and found by it to be legally unsound and
constitutionally untenable. As a consequence, Our decision in the aforementioned habeas
corpuscase3 partakes of the nature and effect of stare decisis, which gained added weight by its
virtual reiteration in the plebiscite cases.
The reason why the issue under consideration and other issues of similar character are
justiciable, not political, is plain and simple. One of the principal bases of the non-justiciability
of so-called political questions is the principle of separation of powerscharacteristic of the
Presidential system of governmentthe functions of which are classified or divided, by reason
of their nature, into three (3) categories, namely: 1) those involving the making of laws, which
are allocated to the legislative department; 2) those concerned mainly with the enforcement of
such laws and of judicial decisions applying and/or interpreting the same, which belong to the
executive department, and 3) those dealing with the settlement of disputes, controversies or
conflicts involving rights, duties or prerogatives that are legally demandable and enforceable,
which are apportioned to courts of justice. Within its own spherebut only within such sphere
each department is supreme and independent of the others, and each is devoid of authority, not
only to encroach upon the powers or field of action assigned to any of the other departments, but,
also to inquire into or pass upon the advisability or wisdom of the acts performed, measures
taken or decisions made by the other departmentsprovided that such acts, measures or
decisions arewithin the area allocated thereto by the Constitution.

In Lansang vs. Garcia (42 SCRA 448), Chief Justice Concepcion, expressing the unanimous
x x x conviction of the Court, stated:
Let us now consider the substantive validity of the proclamation, as amended. Pursuant to the
above-quoted provisions of the Constitution, two (2) conditions must occur for the valid exercise
of the authority to suspend the privilege to the writ, to wit: (a) there must be Invasion,
insurrection, or rebellion orpursuant to paragraph (2), section 10 of Art. VII of the
Constitutionimminent danger thereof, and (b) public safety must require the suspension of
the privilege. The Presidential Proclamation under consideration declares that there has been and
there is actually a state of rebellion and that public safety requires that immediate and effective
action be taken in order to maintain peace and order, secure the safety of the people and preserve
the authority of the State.
Are these findings conclusive upon the Court? Respondents maintain that they are upon the
authority of Barcelon v. Baker and Montenegro v. Castaeda. Upon the other hand, petitioners

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press the negative view and urge a reexamination of the position taken in said two (2) cases, as
well as a reversal thereof.
To be sure, Justice Barredo holds that Lansang does not control in the reported cases, even as
he draws a distinction between the power of the President to suspend the privilege of the writ of
habeas corpus, which was the issue in Lansang, and his power to proclaim martial law, calling
attention to the fact that while the Bill of Rights prohibits suspension of the privilege except in
the instances specified therein, it places no such restriction or qualification with respect to the
declaration of martial law. Moreover, he says.
x x x. It is Our considered view that under the Constitution, the discretion to determine
ultimately whether or not the Philippines or any part thereof should be placed under martial law
and for how long is lodged exclusively in the Executive, and for this reason, it is best that We
defer to his judgment as regards the existence of the grounds therefor, since, after all, it is not
expected that the Supreme Court should share with him the delicate constitutional responsibility
of defending the safety, security, tranquility and territorial integrity of the nation in the face of a
rebellion or invasion. This is not abdication of judicial power, much less a violation of Our
oaths to support and defend the Constitution; rather, this is deference to an act of the Executive
which, in Our well-considered view, the Constitution contemplates the Court should refrain from
reviewing or interfering with.
Justice Fernandezwith whom Justices Makasiar, Antonio and Aquino concurwithout
committing himself on the issue as regards suspension of the privilege of the writ of habeas
corpus, nevertheless denies that the Court can check the Presidents decision to proclaim martial
law, for a proclamation of martial law goes beyond the suspension of the privilege of the writ of
habeas corpus, whose effects are largely remedied with the release of detainees. He states:
In cases where the issues are indisputably judicial in nature, the findings of the President are
still given utmost respect and deference. In the matter of the declaration of martial law, a power
that is exclusively vested in the President, may the Court differ with the findings? No, because as
We have already stated, the valid reason for this exclusive grant of power is that the President
possesses all the facility and perspective that the Court can have. broader perspective to
properly evaluate them, better than any facility and perspective that the Court can have.
As a matter of fact, Justice Fernandez declares that as a member of the Convention that drafted
the 1973 Constitution he believes that the Convention put an imprimatur on the proposition that
the validity of a martial law proclamation and its continuation is political and non-justiciable in
character.
Justice Antonio, with whom Justices Makasiar, Fernandez and Aquino concur, finds that there
is no dispute as to the existence of a state of rebellion in the country, and on that premise
emphasizes the factor of necessity for the exercise by the President of his power under the
Constitution to declare martial law, holding that the decision as to whether or not there is
such necessity is wholly confided to him and therefore is not subject to judicial inquiry, his
responsibility being directly to the people. Justice Antonio says further: In view of the nature of
the responsibility reposed upon him, it is essential that he be accorded freedom of action
demanded by the exigency. The power is to be exercised upon sudden emergencies and under
circumstances vital to the existence of the State. The issue is committed to him for determination
by criteria of political and military expediency. It is not pretended to rest on evidence but on
information which may not be acceptable in court. There are, therefore, no standards
ascertainable by settled judicial experience or process by reference to which his decision can be
judicially reviewed. In other words, his decision is of a kind for which the judiciary has neither

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the aptitude, facilities nor responsibility to undertake. We are unwilling to give our assent to
expressions of opinion which, although not intended, tends to cripple the constitutional powers
of the government in dealing promptly and effectively with the danger to the public safety posed
by the rebellion and Communist subversion.
Moreover, the Court is without power to shape measures for dealing with the problems of
society, much less with the suppression of rebellion or Communist subversion. The nature of
judicial power is largely negative, and it is essential that the opportunity of the Chief Executive
for well-directed positive action in dealing with the problem be preserved, if the Government is
to serve the best interests of the people.
Justice Esguerra maintains that the findings of the President on the existence of the grounds for
the declaration of martial law are final and conclusive upon the Courts. He explains thus:
Although the Lansang case tried to cushion the blow administered to the constitutional
provision involved by adopting the test of reasonableness in the exercise of the Presidents
power, without meaning to substitute its judgment for that of the President, yet the effect of the
ruling is so far reaching that it may lead to a serious confrontation between the Courts and the
President. The power to inquire into the constitutional sufficiency of the factual bases of the
habeas corpus proclamation (grounds for the issuance of which are the same as those for martial
law) presupposes the power to know what are the facts to be tested by the constitutional
provision. This is the essence of an inquiry; the determination of the constitutional sufficiency of
those facts simply follows. Suppose this Court says they are not sufficient, to justify martial law
and the President says they are because the evidence on which he acted shows the existence of
invasion, insurrection or rebellion, or the imminent danger thereof, what will happen? The
outcome is too unpleasant to contemplate. Let us not try to repeat in our country what transpired
between President Lincoln and Chief Justice Taney when the latter issued a writ of habeas
corpus to set free one held by the military and President Lincoln practically said: Taney has
issued in writ. Let him enforce it: Ex parte Merryman, 17 Fed. Cas. 144 (No. 9487) (C.C.D. Md.
1861).
President Lincoln, in the face of the grave danger then to the nation, simply ignored it and
nothing could be done about it.
The test of reasonableness, or absence of arbitrariness in the exercise of the presidential
power, is all a play of words. The determination of the reasonableness of the act of the President
calls for a consideration of the availability and choice of less drastic alternatives for the President
to take, and when that is done the Court will in effect be substituting its judgment for that of the
President. If the Court were to limit its powers to ascertaining whether there is evidence to
support the exercise of the Presidents power, without determining whether or not such evidence
is true, we would have the curious spectacle of this Court having no choice but to give its
imprimatur to the validity of the presidential proclamation, as it did in the Lansang case where it
merely accepted the reports of the military on the facts relied upon by the President in issuing
Proclamation No. 889, without judicially determining whether or not the contents of those
reports were true. In so doing, this Court simply displayed the miserable limits of its competence
for having no means for checking whether or not those facts are true. It would have been more in
keeping with the dignity, prestige and proper role of this Court to simply read and consider the
bases for the suspension as stated in the various whereases of the Proclamation, and then
determine whether they are in conformity with the constitution. This to me is the extent of its
power. To transcend it is to usurp or interfere with the exercise of a presidential prerogative.

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In sum, Justices Makasiar, Antonio, Esguerra, Fernandez, Aquino and Barredo vote against the
application of the Lansang rule to the Diokno and other cases above reported.
For his part, Chief Justice Makalintal skirts the question of whether the Lansang rule should
be applied or not, saying that the issue of justiciability or non-justiciability is of not much more
than academic interest for purposes of arriving at a judgment, since I am convinced (as are the
other justices), without need of receiving evidence as in an ordinary adversary court proceeding,
that a state of rebellion existed in the country when Proclamation No. 1081 was issued, xxx The
state of rebellion continues up to the present.
Upon the other hand, Justices Castro, Fernando, Teehankee and Palma hold that the
constitutional sufficiency of the proclamation may be inquired into by the Court, and would thus
apply the principle laid down in Lansang although the case refers to the power of the President to
suspend the privilege of the writ of habeas corpus.
Justice Castro says: Of course the judicial department can determine the existence of the
conditions for the exercise of the Presidents powers and is not bound by the recitals of his
proclamation. He, however, concedes: But whether in the circumstances obtaining public
safety requires the suspension of the privilege of the writ ofhabeas corpus or the proclamation of
martial law is initially for the President to decide. Considerations of commitment of the power to
the executive branch of the Government and the lack of accepted standards for dealing with
incommensurable factors, suggest the wisdom of considering the Presidents finding as
to necessitypersuasive upon the courts.
Justice Fernando maintains:
Nor does the fact that, at the time of the filing of these petitions martial law had been declared,
call for a different conclusion. There is of course imparted to the matter a higher degree of
complexity. For it cannot be gainsaid that the reasonable assumption is that the President
exercised such an awesome power, one granted admittedly to cope with an emergency or crisis
situation, because in his judgment the situation as thus revealed to him left him with no choice.
What the President did attested to an executive determination of the existence of the conditions
that called for such a move. There was, in his opinion, an insurrection or rebellion of such
magnitude that public safety did require placing the country under martial law. That decision was
his to make; it is not for the judiciary. The assessment thus made, for all the sympathetic
consideration it is entitled to, is not, however, impressed with finality. This Court has a limited
sphere of authority. That, for me, is the teaching of Lansang. The judicial role is difficult, but it
is unavoidable. The writ of liberty has been invoked by petitioners. They must be heard, and we
must rule on their petitions.
Justice Teehankee makes reference to the statement in the Lansang decision that the Court would
have received evidence on whether the petitioners for habeas corpus had been in fact
apprehended and detained arbitrarily or on reasonable belief that they had participated in the
crime of insurrection or rebellion for which the privilege of the writ of habeas corpus was found
to have been validly suspended, and goes on to say:
Pertinent to this question is the Courts adoption in Lansang of the doctrine of Sterling vs.
Constantin enunciated through U.S. Chief Justice Hughes that even when the state has been
placed under martial law xxx (W)hen there is a substantial showing that the exertion of state
power has overridden private rights secured by that Constitution, the subject is necessarily one
for judicial inquiry in an appropriate proceeding directed against the individuals charged with the
transgression. To such a case the Federal judicial power extends (Art. 3, sec. 2) and, so
extending,the court has all the authority appropriate to its exercise, x x x

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Equally pertinent is the Courts statement therein announcing the members unanimous
conviction that it has the authority to inquire into the existence of said factual bases [stated in
the proclamation suspending the privilege of the writ of habeas corpus or placing the country
under martial law as the case may be, since the requirements for the exercise of these powers are
the same and are provided in the very same clause] in order to determine the constitutional
sufficiency thereof.
Justice Palma favors adherence to the Lansang doctrine, thus:
The opinions of my colleagues lengthily discuss this issue of justiciability or non-justiciability
of the exercise of executive power to proclaim martial law and I will not repeat the arguments for
one or the other. I adopt by reference their dissertation on the leading American jurisprudence
and Constitutional Law authorities on the matter, but I conclude for my part that the decision of
this Court in Lansang vs. Garcia is the better rule to adopt. In Lansang, the Court held that it has
the authority under the Constitution to inquire into the existence of a factual basis for the
issuance of a presidential proclamation suspending the privilege of the writ of habeas corpus for
the purpose of determining the constitutional sufficiency thereof. If this Court can make that
inquiry in the event of suspension of the privilege of the writ of habeas corpus, a fortiori, the
Court can inquire into the factual basis for the proclamation of martial law considering the more
extensive effects of the latter on the individual rights of the citizenry, for it cannot be denied that
martial law carries with it curtailment and infringement not only of ones liberty but also of
property rights, rights of free expression and assembly, protection against unreasonable searches
and seizures, privacy of communication and correspondence, liberty of abode and of travel, etc.,
which justify judicial intervention to protect and uphold these liberties guaranteed under the
Constitution.
It may be seen that the Members of the Supreme Court who regard the question of validity of
Proclamation No. 1081 as a political question do so from a consideration of the necessities of
public order which to them override private rights during the period of emergency calling for the
imposition of martial law and would not superimpose judicial review upon executive
determination under the circumstances. Those who view the question as a justiciable one do not
deny the necessities of public order but would apply judicial review to test reasonableness of
executive determination and thus provide a judicial check against arbitrary exercise of executive
power in order to protect private rights, especially the liberties enshrined in the Bill of Rights.
Ones opinion about martial law may indeed be perceived as a reflection of his thoughts on the
urgency of State action to restore or maintain public order vis-a-vis the enjoyment of individual
rights. There are, to be sure, two aspects of the problem. One is the regulation of freedom in
order to prevent anarchy. The other is the limitation of power in order to prevent tyranny.
Where lies a possible reconciliation of these two points of view? Is there a way of upholding
the proclamation of martial law without tearing down altogether the defenses of individual
rights? The reasoning of the majority of the Justices is that because the Court will not disturb the
proclamation of martial law on grounds of political question, therefore the arrest and detention of
the petitioners in the reported cases should be considered as valid and lawful. But Justice
Teehankee adverts to a point of significance indicated by a unanimous Court in the Lansang
case. He says:
In the benchmark case of Lansang vs. Garcia when the Court declared that the President did not
act arbitrarily in issuing in August, 1971 Proclamation No. 889, as amended, suspending the
privilege of the writ of habeas corpus for persons detained for the crimes of insurrection or
rebellion and other overt acts committed by them in furtherance thereof, the Court held through

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then Chief Justice Concepcion that our next step would have been the following: The Court, or a
commissioner designated by it, would have received evidence on whetheras stated in
respondentsAnswer and Returnsaid petitioners had been apprehended and detained on
reasonable belief that they had participated in the crime of insurrection or rebellion.
Indeed, in Lansang, it was further stated that:
It so happened, however, that on November 13,1971or two (2) days before the proceedings
relative to the briefing held on October 28 and 29, 1971, had been completed by the filing of a
summary of the matters then taken upthe aforementioned criminal complaints were filed
against said petitioners. What is more, the preliminary examination and/or investigation of the
charges contained in said complaints has already begun. The next question, therefore is: Shall
We now order, in the case at hand, the release of said petitioners herein, despite the formal and
substantial validity of the proclamation suspending the privilege despite the fact they are actually
charged with offenses covered by said proclamation and despite the aforementioned criminal
complaints against them and the preliminary examinations and/or investigations being conducted
therein?
The Members of the Court, with the exception of Mr. Justice Fernando, are of the opinion,
and, so hold, that, instead of this Court or its commissioner taking the evidence adverted to
above, it is best to let said preliminary examination and/or investigation be completed, so that
petitioners release could be ordered by the court of first instance, should it find that there is no
probable cause against them, or a warrant for their arrest could be issued, should a probable
cause be established against them. Such course of action is more favorable to the petitioners,
inasmuch as a preliminary examination or investigation requires a greater quantum of proof than
that needed to establish that the Executive had not acted arbitrarily in causing the petitioners to
be apprehended and detained upon the ground that they had participated in the commission of the
crime of insurrection or rebellion. And, it is mainly for this reason that the Court has opted to
allow the Court of First Instance of Rizal to proceed with the determination of the existence of
probable cause, although ordinarily the Court would have merely determined the existence of
substantial evidence of petitioners connection with the crime of rebellion. Besides, the latter
alternative would require the reception of evidence by this Court and thus duplicate the
proceedings now taking place in the court of first instance. What is more, since the evidence
involved in both proceedings would be substantially the same and the presentation of such
evidence cannot be made simultaneously, each proceeding would tend todelay the other.
Should the Lansang rule formulated in connection with the suspension of the privilege of the writ
of habeas corpus be likewise applied to the proclamation of martial law? In the Diokno and other
cases above reported, two widely disparate views would seem to defy reconciliation. One would
bar judicial review because the proclamation of martial law implies the extraordinary curtailment
of individual rights for the overriding interests of the preservation of the State. The other would
insist on judicial review precisely because the proclamation of martial law involves extraordinary
interference with individual freedoms. The first is the rule laid down by a divided Court in the
cases reported.

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