“if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order issued by a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed…”

In Ilagan vs. Enrile (139 SCRA 349) the IBP filed a petition for habeas corpus on behalf of 3 lawyers who were arrested in Davao by the military during the Marcos dictatorship. The SC ordered their temporary release but the respondents moved for reconsideration arguing that a presidential detention order against the 3 lawyers and an information for rebellion that was subsequently filed against them before an RTC and issuance of warrant of arrest against them had made the petition for habeas corpus moot and academic. Ten members of the SC ruled in favor of the respondents by virtue of Rule 102, Sec. 4 of the Rules of Court.

My cabalen, the late Justice Vicente Abad Santos who displayed considerable independence from the Marcos government, along with Justices Tehankee, Patajo and Concepcion dissented. Justice Abad Santos, who lamented SC preference to the rule of form over substance in his dissenting opinion, said :

“It was Holmes who said that the life of the law has not been logic; it has been experience. Thus the Roman law was ritualistic and highly formal. Gradually, however, it evolved and form was replaced by substance. The development of the law did not stop there. The Roman praetorian law enlarged, supplemented and overrode law which had become narrow and rigid in scope. Finally common law produced equity jurisprudence. It is a formal set of legal and procedural rules and doctrines to aid and even override common and statute law in order to protect rights and enforce duties fixed by substantive law.

“The majority opinion appeals to the mind for it appears to be logically constructed. It leans heavily on the letter of the law. Upon the other hand, the dissenting opinion of Justice Teehankee which is his article of faith appeals to the mind and the heart for it is based not only on law but on equity also.

“I believe that Justice Teehankee’s opinion better serves the ends of justice and I gladly subscribe to it. I also subscribe to Justice Concepcion’s separate opinion.”

The above case shows how rigid the application of procedural rules that prevent the enforcement of substantive rights is. A technicality called “form” always prevails over substance in judicial cases. Since the SC is due to clean the house, I suggest that the perceived defects of Rule 102, Sec. 4 be repaired too.

Technically, the ‘charge’ and ‘conviction’ refers to the finding of contempt made by the Senate. This is the same with courts, which can cite persons in contempt and impose the appropriate penalty, including imprisonment. Of course, the power to inquire in aid of legislation is a constitution unto itself, but is now based on the Constitution.

As to the terrorists, maybe that’s a good idea…but I don’t think they’d want to do that.

Now, it’s Camilo Sabio’s turn to be deprived of his liberty.

Is the indefinite detention of a person who has not been charged, tried and convicted allowed under our system of laws?

If, indeed, this is legally allowed, the Senate should apply this rule to suspected terrorists or criminals and detain them forever by simply invoking the phrase “in aid of legislation” and cite them for contempt.

As it is now, mere suspicion or accusation proves guilt, denial doubles it.

Is the power to inquire “in aid of legislation” a constitution unto itself with the Senate unrestrained by the rule of law as lawyers and the Courts define it to mean?

I’m not a lawyer. Hope you can enlighten.