EN BANC
G.R. No. L-33125 September 30, 1971
IN THE MATTER OF THE PETITION OF ROMAN DE ASIS FOR A WRIT OF HABEAS CORPUS. ROMAN DE ASIS, petitioner,
vs.
THE HON. HONORIO ROMERO, Presiding Judge, Court of First Instance of Pampanga, Branch III; THE HON. ANTONIO G. P. FAUSTO, Assistant Provincial Fiscal of Pampanga; and THE PROVINCIAL WARDEN OF THE PROVINCE OF PAMPANGA, respondents.
Juan T. David for petitioner.
Provincial Fiscal Regidor Y. Aglipay and Asst. Provincial Fiscal Antonio G. P. Fausto for respondents.
Separate Opinions
FERNANDO, J., dissenting:
With due recognition and full awareness that the decision reached by this Court is on the whole an expedient and pragmatic solution that cuts through the tangled maze of procedural irregularities, embodied in an opinion of Justice Castro characterized by craftsmanship of a high order, I feel constrained to dissent. I shall explain why..
1. The basis for my inability to view matters in the same light the Court does is the compelling force of the constitutional right to be free from arrest except on the existence of a probable cause, the determination of which under the Constitution is granted solely to a judge, not to any other official, "after examination under oath or affirmation of the complainant and the witnesses he may produce, ... ."1 Such a right may be waived, it is true, but only on a showing that the person so arrested without the constitutional requisites having been fully complied with has manifested his willingness, whether expressly or impliedly, but in either case in language or conduct unmistakable and unequivocal, to submit to such a procedure, even if tainted by unconstitutionality. The record for me, and this I say with due respect, fails to support such a finding.
2. It is undisputed that fidelity to the above constitutional mandate requires literal compliance with its terms. So it was expressly affirmed in a 1948 decision, Sayo v. Chief of Police of Manila.2 Thus: "Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom a person arrested by a public officer must be surrendered can not be any other but a court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested, pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for more than six hours would be illegal and in violation of our Constitution."3
3. It is imperative, to my mind, that constitution rights, certainly not excluding the safeguard against being arrested without the procedure set forth in the Constitution being strictly adhered to, must be maintained in their undiluted form. No intrusion into the domain of liberty is to be allowed except in accordance with what the fundamental law prescribes. A regime of constitutionalism would be meaningless if it were otherwise. The judiciary is called upon to assure that it exists as an actuality and not merely as a desirable goal to be achieved.
This is not to assert that a waiver of constitutional rights is at all times and under all circumstances barred. If knowingly made, it has the effect of an individual being thereafter precluded from complaining that there was an infringement of the guarantees to which he, like any other individual, is entitled. For a waiver to exist though, there must ordinarily be an intentional relinquishment. It must be shown that it was made with full understanding of the consequences entailed. Such a waiver may, of course, be implied from his conduct, but only if the conclusion becomes inescapable that such indeed was his intention.
Justice Laurel did expound with force and clarity in Pasion Vda. de Garcia v. Locsin4
the authoritative doctrine. Thus: "Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. ...(awÞhi( The waiver may be either express or implied ... . No express waiver has been made in the case before us. It is urged, however, that there has been a waiver by implication. lt is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly that the person involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right. ... Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf. ... It is, as Judge Cooley observes, but a submission to the authority of the law. ... As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law."5
The words of the late Justice Black in Johnson v. Zerbst,6 cited with approval in Abriol vs. Homeres7 speaks to the same effect. Thus: "'Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority to deprive an accused of his life or liberty. When this right is properly waived the assistance of Counsel is no longer a necessary element of the court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court — as the Sixth Amendment, requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus. ... .'"8
4. There is thus a denial of constitutional right resulting in the lose of jurisdiction of the court that issued the warrant of arrest. Under the circumstances, the invocation of the remedy of habeas corpus is both fitting and appropriate. It is provided in the Rules of Court that where it is shown that where a person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, the writ shall not be allowed.9 Once a jurisdictional defect is shown though, and a deprivation of a constitutional right is an infirmity impressed with such a character, the competence to act further by such a court ceases. The person detained may, through this proceeding assail the legality of his confinement and secure his release. So we have held in a number of cases impressive for their number and unanimity.10
5. The compulsion exerted by the above doctrine which for me are controlling necessarily results in my inability to reach the same conclusion as my brethren. With due respect,ℒαwρhi৷ I feel that only thus would the great writ of liberty continue serving its historic purpose as the most speedy mode of assuring that no illegal detention is tolerated. Moreover, the time has long been overdue for lower court judges all over the country to realize that when the Constitution requires from them an examination under oath or affirmation of the complainant and the witnesses he may produce before a valid warrant of arrest may be issued, it means what it says. Hence this dissent.
Makasiar, J., concurs.
Footnotes
1 The Bill of Rights provides: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized." Art. III, Sec. 1, par. (3).
2 80 Phil. 859 (1948). This constitutional provision likewise bars the Commissioner of Immigration from issuing a warrant of arrest to determine whether probable cause exists for the deportation of an alien. Cf. Qua Chee Gan v. Deportation Board, L-20290, Sept. 30, 1963, 9 SCRA 27; Vivo v. Montesa, L-24576, July 29, 1968, 24 SCRA 155; Contemprate v. Acting Commissioner of Immigration, L-28604, Oct. 30, 1970, 35 SCRA 623.
3 Ibid., p. 867.
4 65 Phil. 689 (1938).
5 Ibid., pp. 694-695.
6 304 US 458 (1938).
7 84 Phil. 525 (1949).
8 Ibid, pp. 533-534.
9 Section 4 of Rule 102 provides: "When writ not allowed or discharge authorized. — 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 of 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; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order. Nor shall anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering imprisonment under lawful judgment." .
10 Cf. Conde v. Rivera, 45 Phil. 650 (1924); Harden v. Director of Prisons, 81 Phil. 741 (1948); Abriol v. Homeres, 84 Phil. 525 (1949); Chavez v. Court of Appeals, L-29169, August 19, 1968, 24 SCRA 663; Celeste v. People, L-31435, January 30, 1970, 31 SCRA 391; Gumabon v. Director of the Bureau of Prisons, L-30026, January 30, 1971, 37 SCRA 420.
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