Ilagan vs.

enrile
FACTS:
On May 10, 1985, Attorney Laurente C. Ilagan was arrested in Davao City by
elements of the PC-INP and detained at Camp Catitipan on the basis of a Mission
Order allegedly issued by the Ministry of National Defense. On that same day,
fifteen lawyers from the IBP Davao Chapter visited Atty. Ilagan. Thereafter, two
other petitioners were arrested for the same cause.
This petition for habeas corpus was then filed by and on behalf of the three
arrested lawyers hereinafter referred to as the detained attorneys on the ground
that their arrests were illegal and violative of the Constitution, since arrests
cannot be made on the basis of Mission Orders. and that there appears to be a
military campaign to harass lawyers involved in national security cases.
On May 16, 1985, the Court issued the Writ, required a Return, and set the
petition for hearing on May 23, 1985. Respondents contend that the lawyers were
arrested due to basis of a PDA issued by the President on January 25, 1985 and
that the lawyers played active roles in organizing mass actions of the Communist
Party of the Philippines and the National Democratic Front.
ISSUE:
Whether the petitioners herein were denied of their constitutional right to due
process and the benefit of a preliminary investigation.
HELD:
If the detained attorneys question their detention because of improper arrest, or
that no preliminary investigation has been conducted, the remedy is not a
petition for a Writ of Habeas Corpus but a Motion before the trial court to quash
the Warrant of Arrest, and /or the Information on grounds provided by the Rules
or to ask for an investigation / reinvestigation of the case. Habeas corpus would
not lie after the Warrant of commitment was issued by the Court on the basis of
the Information filed against the accused. So is it explicitly provided for by
Section. 14, Rule of 102 of the Rules of Court.
The right to a preliminary investigation, being waivable, does not argue against
the validity of the proceedings, the most that could have been done being to
remand the case in order that such investigation could be conducted.
... The proper forum before which absence of preliminary investigation should be
ventilated is the Court of First Instance, not this Court. Reason is not wanting for
this view. Absence of preliminary investigation does not go to the jurisdiction of
the court but merely to the regularity of the proceedings. It could even be waived.
Indeed, it is frequently waived. These are matters to be inquired into by the trial
court, not an appellate Court.
Section 7, Rule 112, of the 1985 Rules on Criminal Procedure above referred to
provides:
SEC. 7. When accused lawfully arrested without warrant.- When a person is
lawfully arrested without a warrant for an offense cognizable by the Regional
Trial Court the complaint or information may be filed by the offended party,
peace officer or fiscal without preliminary investigation having been first
conducted on the basis of the affidavit of the offended party or arrested officer or

person.
However, before the filing of such complaint or information, the person arrested
may ask for a preliminary investigation by a proper officer in accordance with
this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, with the assistance of a lawyer and in case of nonavailability of a lawyer, a responsible person of his choice. Notwithstanding such
waiver, he may apply for bail as provided in the corresponding rule and the
investigation must be terminated within fifteen (15) days from its inception.