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Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-37364 May 9, 1975
BENIGNO S. AQUINO, JR., petitioner,
vs.
MILITAR COMMISSION !, C"IE# O# STA##, ARME$ #ORCES O# T"E P"ILIPPINES, a%& SECRETAR O#
NATIONAL $E#ENSE, T"E C"IE# JUSTICE O# T"E SUPREME COURT, a%& SECRETAR O# JUSTICE, *
respondents.
Tañada, Salonga, Ordoñez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.
Office of the Solicitor General stelito !. "endoza, Assistant Solicitor#General $icente $. "endoza, Assistant Solicitor
General %&go . G&tierrez, Jr., Assistant Solicitor General Reynato S. !&no and Attorney 'lesila (&intillan for
respondents.

ANTONIO, J.:ñé+.£ªwph!1
Followin the procla!ation of !artial law in the Philippines, petitioner was arrested on "epte!ber #$, %&'#, pursuant to
(eneral )rder No. #*A of the President for co!plicit+ in a conspirac+ to sei,e political and state power in the countr+ and
to ta-e over the (overn!ent. .e was detained at Fort Bonifacio in Ri,al province. )n "epte!ber #/, %&'#, he sued for a
writ of habeas corpus
1
in which he 0uestioned the lealit+ of the procla!ation of !artial law and his arrest and detention.
1his Court issued a writ of habeas corpus, returnable to it, and re0uired respondents to file their respective answers, after
which the case was heard. 1hereafter, the parties sub!itted their !e!oranda. Petitioner2s last Repl+ !e!orandu! was
dated Nove!ber $3, %&'#. )n "epte!ber %', %&'4, this Court dis!issed the petition and upheld the validit+ of !artial law
and the arrest and detention of petitioner.
!
5n the present case, petitioner challenes the 6urisdiction of !ilitar+ co!!issions to tr+ hi!, alone or toether with others,
for illeal possession of firear!s, a!!unition and e7plosives, for violation of the Anti*"ubversion Act and for !urder. 1he
chares are contained in si7 89: a!ended chare sheets
3
filed on Auust %4, %&'$ with Militar+ Co!!ission No. #.
1he oriinal petition in this case was filed on Auust #$, %&'$. 5t souht to restrain the respondent Militar+ Co!!ission
fro! the proceedin with the hearin and trial of petitioner on Auust #', %&'$. Because of the urenc+ of the petition, this
Court called a hearin on "unda+, Auust #9, on the 0uestion of whether with its !e!bership of onl+ nine 8&: ;ustices, it
had a 0uoru! to ta-e coni,ance of the petition in view of the constitutional 0uestions involved. At that hearin, this Court
as-ed the parties to aree to see- fro! the Militar+ Co!!ission a postpone!ent of petitioner2s trial the followin da+. 1he
purpose was to relieve the Court of the pressure of havin to decide the 0uestion of 0uoru! without ade0uate ti!e to do
so.
<hen the proceedins before the Militar+ Co!!ission opened the followin da+, however, petitioner 0uestioned the
fairness of the trial and announced that he did not wish to participate in the proceedins even as he dischared both his
defense counsel of choice and his !ilitar+ defense counsel.
1he proceedins were thereupon ad6ourned to another da+. 5n the !eanti!e, for the petitioner2s assurance, a "pecial
Co!!ittee, co!posed of a retired. ;ustice of the "upre!e Court, to be desinated b+ the Chief ;ustice, as Chair!an, and
four 84: !e!bers to be desinated respectivel+ b+ petitioner, the President of the 5nterated Bar of the Philippines, the
"ecretar+ of ;ustice and the "ecretar+ of National =efense, was created to reinvestiate the chares aainst petitioner.
1he "ecretaries of ;ustice and National =efense desinated their representatives but the petitioner refused to na!e his.
1he Chief ;ustice as-ed for!er ;ustice ;.B.>. Re+es but the latter declined, as he also declined in his capacit+ as
President of the 5BP to desinate a representative to the Co!!ittee. As a result, with onl+ two of its !e!bers desined,
the "pecial Co!!ittee has not been able to function.
)n "epte!ber 4, %&'$, a supple!ental petition allein the creation of the "pecial Co!!ittee and 0uestionin the
lealit+ of its creation was filed. 1he Chief ;ustice of the "upre!e Court and the "ecretar+ of ;ustice were included as
respondents. "ubse0uentl+, the Court resolved to re0uire the respondents to file their answer and on Auust #%, %&'4,
within the e7tended period ranted b+ the Court, respondents, with the e7ception of the Chief ;ustice, filed their answer to
the supple!ental petition.
1hereafter, petitioner was re0uired to file a repl+ and was ranted additional ti!e after the lapse of the oriinal period, but
instead of doin so, petitioner as-ed for the ad!ission of a second supple!ental petition challenin the continued
enforce!ent of !artial law in the Philippines, in the liht of Presidential state!ents to the effect that with the co!in into
force of the new Constitution on ;anuar+ %', %&'$, !artial law was ?technicall+ and leall+? lifted. 1o this petition
respondents answered. 1hereafter, the parties sub!itted their respective !e!oranda in lieu of oral aru!ent as per
Resolution of this Court on ;anuar+ %4, %&'/.
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)n March #4, %&'/, petitioner filed an ?@rent Motion for 5ssuance of 1e!porar+ Restrainin )rder Aainst Militar+
Co!!ission No. #?A pra+in that said Co!!ission be prohibited fro! proceedin with the perpetuation of testi!on+ under
its )rder dated March %3, %&'/, the sa!e bein illeal, until further orders fro! the "upre!e Court..
)n March $%, %&'/, respondents filed their Co!!ent to petitioner2s afore!entioned urent !otion, which !otion and
other related incidents were set for hearin on April %4, %&'/ at %3B33 a.!., as per Resolution of this Court on April C,
%&'/.
Meanwhile, or on April %, %&'/, this Court issued a Resolution, statin that ?for lac- of a necessar+ 0uoru!?, it could not
act on petitioner2s @rent Motion for 5ssuance of te!porar+ Restrainin )rder Aainst Militar+ Co!!ission No. #,
inas!uch as this case involved a constitutional 0uestion..
)n April ', %&'/, petitioner filed a ?Manifestation? statin, a!on others, that the ?@rent Motion did not and does not
involve a constitutional 0uestion?, for reasons stated therein.
)n April %#, %&'/, respondents filed their ?Repl+ to Petitioner2s Manifestation?, followed b+ Respondents2 Manifestation
filed on April %4, %&'/, attachin thereto fourteen 8%4: sworn state!ents of witnesses whose testi!onies are souht to be
perpetuated..
)n April %4, %&'/, this Court also issued a restrainin order aainst respondent Militar+ Co!!ission No. #, restrainin it
fro! further proceedin with the perpetuation of testi!on+ under its )rder dated March %3, %&'/ until the !atter is heard
and further orders are issued.
<hen this case was called for hearin, petitioner2s counsel presented to this Court a !otion to withdraw the petition, as
well as all other pendin !atters andDor incidents in connection therewith. Respondents2 counsel interposed ob6ection to
the rantin of the aforesaid !otion to withdraw.
After the hearin, this Court ResolvedB ?8a: to re0uire the "olicitor (eneral to furnish the Court as well as the petitioner
and the latter2s counsel, with copies of the transcript of all the stenoraphic notes ta-en at the hearin before the Militar+
Co!!ission No. # for the perpetuation of the testi!on+ of the witnesses for the prosecution in various cri!inal cases filed
aainst herein petitioner, within five 8/: da+s fro! toda+A 8b: to re0uest the "olicitor (eneral and the AFP ;ude Advocate
(eneral to !a-e the necessar+ arrane!ents for the petitioner to confer with his counsel on !atters connected with the
afore!entioned !otion to withdrawA 8c: to allow counsel for the petitioner, if the+ so desire, to file a !anifestation in
a!plication of the aforesaid !otion to withdraw, within ten 8%3: da+s fro! the date the+ confer with the petitioner, and
thereafter to allow the "olicitor (eneral to file a counter*!anifestation within ten 8%3: da+s fro! receipt of a cop+ thereofA
and 8d: to consider the case sub!itted for decision after sub!ission b+ both parties of their respective pleadins on the
!otion to withdraw.?
"ubse0uentl+, the parties !anifested their co!pliance.
5
Actin on petitioner2s !otion to withdraw the petitions and !otions in this case, and there bein onl+ three 8$: ;ustices
8;ustices Fernando, 1eehan-ee and MuEo, Pal!a: who voted in favor of rantin such withdrawal, whereas seven 8':
;ustices 8;ustices Castro, Barredo, Antonio, Esuerra, A0uino, Concepcion and Martin: voted for its denial, the said
!otion to withdraw is dee!ed denied 8"ection %%, Rule /9 of the Revised Rules of Court:. 1he Chief ;ustice has inhibited
hi!self, havin been !ade respondent b+ petitioner in his "upple!ental Petitions.
5
1he ;ustice who voted to den+ the withdrawal are of the opinion that since all !atters in issue in this case have alread+
been sub!itted for resolution, and the+ are of para!ount public interest, it is i!perative that the 0uestions raised b+
petitioner on the constitutionalit+ and lealit+ of proceedins aainst civilians in the !ilitar+ co!!issions, pursuant to
pertinent (eneral )rders, Presidential =ecrees and >etters of 5nstruction, should be definitel+ resolved.
5n reard to the !erits, <e Resolve b+ a vote of eiht 8C: ;ustices to dis!iss the !ain as well as the supple!ental
petitions. /*
55
")*)TAR+ CO"")SS)O,S
<e have that the respondent Militar+ Co!!ission No. # has been lawfull+ constituted and validl+ vested with 6urisdiction
to hear the cases aainst civilians, includin the petitioner.
%. 1he Court has previousl+ declared that the procla!ation of Martial >aw 8Procla!ation No. %3C%: on "epte!ber #%,
%&'#, b+ the President of the Philippines is valid and constitutional and that its continuance is 6ustified b+ the daner
posed to the public safet+.
6
#. 1o preserve the safet+ of the nation in ti!es of national peril, the President of the Philippines necessaril+ possesses
broad authorit+ co!patible with the i!perative re0uire!ents of the e!erenc+. )n the basis of this, he has authori,ed in
(eneral )rder No. C 8"epte!ber #', %&'#: the Court of "taff, Ar!ed Forces of the Philippines, to create !ilitar+ tribunals
to tr+ and decide cases ?of !ilitar+ personnel and such other cases as !a+ be referred to the!.? 5n (eneral )rder No. %#
8"epte!ber $3, %&'#:, the !ilitar+ tribunals were vested with 6urisdiction ?e7clusive of the civil courts?, a!on others, over
cri!es aainst public order, violations of the Anti*"ubversion Act, violations of the laws on firear!s, and other cri!es
which, in the face of the e!erenc+, are directl+ related to the 0uellin of the rebellion and preservation of the safet+ and
securit+ of the Republic. 5n order to ensure a !ore orderl+ ad!inistration of 6ustice in the cases triable b+ the said !ilitar+
tribunals, Presidential =ecree No. $& was pro!ulated on Nove!ber ',%&'#, providin for the ?Rules (overnin the
Creation, Co!position, ;urisdiction, Procedure and )ther Matters Relevant to Militar+ 1ribunals.? 1hese !easures he has
the authorit+ to pro!ulate, since this Court reconi,ed that the incu!bent President, under pararaphs % and # of
"ection $ of Article FG55 of the new Constitution, had the authorit+ to ?pro!ulate procla!ations, orders and decrees
durin the period of !artial law essential to the securit+ and preservation of the Republic, to the defense of the political
and social liberties of the people and to the institution of refor!s to prevent the resurence of the rebellion or insurrection
or secession or the threat thereof.....?
7
Pursuant to the aforesaid "ection $ H%I and H#I of Article FG55 of the Constitution,
(eneral )rders No. C, dated "epte!ber #', %&'# 8authori,in the creation of !ilitar+ tribunals:, No. %#, dated "epte!ber
$3, %&'# 8definin the 6urisdiction of !ilitar+ cri!inals and providin for the transfer fro! the civil courts to !ilitar+
tribunals of cases involvin subversion, sedition, insurrection or rebellion, etc.:, and No. $&, dated Nove!ber ', %&'#, as
a!ended 8prescribin the procedures before !ilitar+ tribunals:, are now ?part of the law of the land.?
'
$. Petitioner nevertheless insists that he bein a civilian, his trial b+ a !ilitar+ co!!ission deprives hi! of his riht to due
process, since in his view the due process uaranteed b+ the Constitution to persons accused of ?ordinar+? cri!es !eans
6udicial process. 1his aru!ent inores the realit+ of the rebellion and the e7istence of !artial law. 5t is, of course,
essential that in a !artial law situation, the !artial law ad!inistrator !ust have a!ple and sufficient !eans to 0uell the
rebellion and restore civil order. Pro!pt and effective trial and punish!ent of offenders have been considered as
necessar+ in a state of !artial law, as a !ere power of detention !a+ be wholl+ inade0uate for the e7ienc+. 9 ?5t need
hardl+ be re!ar-ed that !artial law lawfull+ declared,? observed <inthrop, ?creates an e7ception to the eneral rule of
e7clusive sub6ection to the civil 6urisdiction, and renders offenses aainst the laws of war, as well as those of a civil
character, triable, at the discretion of the co!!ander, 8as overned b+ a consideration for the public interests and the due
ad!inistration of 6ustice: b+ !ilitar+ tribunals.?
1(
5ndeed, it has been said that in ti!e of overpowerin necessit+, ?public daner warrants the substitution of e7ecutive
process for 6udicial process.?
11
Accordin to "chwart,, ?1he i!!unit+ of civilians fro! !ilitar+ 6urisdiction !ust, however,
ive wa+ in areas overned b+ !artial law. <hen it is absolutel+ i!perative for public safet+, leal processes can be
superseded and !ilitar+ tribunals authori,ed to e7ercise the 6urisdiction nor!all+ vested in court.?
1!
5n an+ case, <e cannot close )ur e+es to the fact that the continued e7istence of these !ilitar+ tribunals and the e7ercise
b+ the! of 6urisdiction over civilians durin the period of !artial law are within the conte!plation and intend!ent of
"ection $, pararaph # of Article FG55 of the Constitution. 1hese are tribunals of special and restricted 6urisdiction created
under the stress of an e!erenc+ and national securit+. 1his is the onl+ loical wa+ to construe said "ection $, pararaph
# of Article FG55 of the Constitution, in relation to (eneral )rder Nos. C, %# and $&, in the conte7t of conte!porar+ histor+
and the circu!stances attendant to the fra!in of the new charter.
4. <hen it has been established that !artial law is in force, the responsibilit+ for all acts done thereunder !ust be ta-en
b+ the authorities ad!inisterin it.
13
5t is a serious responsibilit+ which !erits the cooperation of all in the collective desire
for the restoration of civil order. 5n the case at bar, petitioner is chared with havin conspired with certain !ilitar+ leaders
of the co!!unist rebellion to overthrow the overn!ent, furnishin the! ar!s and other instru!ents to further the
uprisin. 1here is no 0uestion that the continuin co!!unist rebellion was one of the rave threats to the Republic that
brouht about the !artial law situation. @nder (eneral )rder No. %#, 6urisdiction over this offense has been vested
e7clusivel+ upon !ilitar+ tribunals. 5t cannot be said that petitioner has been sinled out for trial for this offense before the
!ilitar+ co!!ission. Pursuant to (eneral )rder No. %#, all ?cri!inal cases involvin subversion, sedition, insurrection or
rebellion or those co!!itted in furtherance of, on the occasion of incident to or in connection with the co!!ission of said
cri!es? which were pendin in the civil courts were ordered transferred to the !ilitar+ tribunals. 1his 6urisdiction of the
tribunal, therefore, operates e0uall+ on all persons in li-e circu!stances..
/. Neither are <e i!pressed with petitioner2s aru!ent that onl+ thru a 6udicial proceedin before the reular courts can
his riht to due process be preserved. 1he uarantee of due process is not a uarantee of an+ particular for! of tribunal in
cri!inal cases. A !ilitar+ tribunal of co!petent 6urisdiction, accusation in due for!, notice and opportunit+ to defend and
trial before an i!partial tribunal, ade0uatel+ !eet the due process re0uire!ent. =ue process of law does not necessaril+
!eans a 6udicial proceedin in the reular courts.
14
1he uarantee of due process, viewed in its procedural aspect,
re0uires no particular for! of procedure. 5t i!plies due notice to the individual of the proceedins, an opportunit+ to
defend hi!self and ?the proble! of the propriet+ of the deprivations, under the circu!stances presented, !ust be
resolved in a !anner consistent with essential fairness.?
15
5t !eans essentiall+ a fair and i!partial trial and reasonable
opportunit+ for the preparation of defense.
16

.ere, the procedure before the Militar+ Co!!ission, as prescribed in Presidential =ecree No. $&, assures observance of
the funda!ental re0uisites of procedural due process, due notice, an essentiall+ fair and i!partial trial and reasonable
opportunit+ for the preparation of the defense.
17

9. 5t is, however, asserted that petitioner2s trial before the !ilitar+ co!!ission will not be fair and i!partial, as the
President had alread+ pre6uded petitioner2s cases and the !ilitar+ tribunal is a !ere creation of the President, and
?sub6ect to his control and direction.? <e cannot, however, indule in un6ustified assu!ptions. Pre6udice cannot be
presu!ed, especiall+ if weihed aainst the reat confidence and trust reposed b+ the people upon the President and the
latter2s leal obliation under his oath to ?do 6ustice to ever+ !an?. Nor is it 6ustifiable to conceive, !uch less presu!e,
that the !e!bers of the !ilitar+ co!!ission, the Chief of "taff of the Ar!ed Forces of the Philippines, the Board of
Review and the "ecretar+ of National =efense, with their correspondin staff 6ude advocates, as reviewin authorities,
throuh who! petitioner2s h+pothetical conviction would be reviewed before reachin the President, would all be
insensitive to the reat principles of 6ustice and violate their respective obliations to act fairl+ and i!partiall+ in the
pre!ises.
1his assu!ption !ust be !ade because innocence, not wrondoin, is to be presu!ed. 1he presu!ption of innocence
includes that of ood faith, fair dealin and honest+. 1his presu!ption is accorded to ever+ official of the land in the
perfor!ance of his public dut+. 1here is no reason wh+ such presu!ption cannot be accorded to the President of the
Philippines upon who! the people durin this period has confided powers and responsibilities which are of a ver+ hih
and dedicate nature. 1he preservation of the rihts uaranteed b+ the Constitution rests at botto! e7actl+ where the
defense of the nation restsB in the ood sense and ood will of the officials upon who! the Constitution has placed the
responsibilit+ of ensurin the safet+ of the nation in ti!es of national peril.
555
A=M5N5"1RA15GE )R=ER N). $//
<e also find that petitioner2s clai! that Ad!inistrative )rder No. $// actuall+ ?strips hi! of his riht to due process? is
neated b+ the basic purpose and the clear provisions of said Ad!inistrative )rder. 5t was precisel+ because of
petitioner2s co!plaint that he was denied the opportunit+ to be heard in the preli!inar+ investiation of his chares that
the President created a "pecial Co!!ittee to reinvestiate the chares filed aainst hi! in the !ilitar+ co!!ission. 1he
Co!!ittee is to be co!posed of a retired ;ustice of the "upre!e Court, to be desinated b+ the Chief ;ustice, as
Chair!an, and four 84: !e!bers to be desinated respectivel+ b+ the accused, the President of the 5nterated Bar, the
"ecretar+ of ;ustice and the "ecretar+ of National =efense, all of who!, accordin to Ad!inistrative )rder No. $// ?!ust
be learned in the law, reputed for probit+, interit+, i!partialit+, incorruptibilit+ and fairness....? 5t is intended that the
Co!!ittee should conduct the investiation with ?ut!ost fairness, 2i!partialit+ and ob6ectivit+2 ensurin to the accused his
constitutional riht to due process, to deter!ine whether ?there is reasonable round to believe that the offenses chared
were in fact co!!itted and the accused is probabl+ uilt+ thereof.?
Petitioner, however, ob6ected b+ challenin in his supple!ental petition before this Court the validit+ of Ad!inistrative
)rder No, $//, on the pretense that b+ sub!ittin to the 6urisdiction of the "pecial Co!!ittee he would be waivin his
riht to cross*e7a!ination because Presidential =ecree No. '', which applies to the proceedins of the "pecial
Co!!ittee, has done awa+ with cross*e7a!ination in preli!inar+ investiation.
1he infir!it+ of this contention is apparent fro! the fact that the co!!ittee ?shall have all the powers vested b+ law in
officials authori,ed to conduct preli!inar+ investiations.? <e have held as i!plicit in the power of the investiatin Fiscal
or ;ude in the dischare of his rave responsibilit+ of ascertainin the e7istence of probable cause, is his riht to cross*
e7a!ine the witnesses since ?cross*e7a!ination whether b+ the 6ude or b+ the prosecution supplies the ap b+
per!ittin an instant contrast of falsehoods and opposin half*truths, !i7ed with ele!ents of truth, fro! which the
e7a!inin 6ude or officer is better able to for! a correct s+nthesis of the real facts.?
1'

5n the case at bar, petitioner2s representative in the Co!!ittee havin been conferred with ?all the powers? of officials
authori,ed to conduct preli!inar+ investiations, is, therefore, e7pressl+ authori,ed b+ "ection %HcI of Presidential =ecree
No. '' to subpoena the co!plainant and his witnesses and ?profound clarificator+ 0uestions?. Giewed in the conte7t of
)ur rulin in Abrera v.. MuEo,,
19
this i!plies the authorit+ of his representative in the Co!!ittee to cross*e7a!ine the
witnesses of the prosecution, in order to reach an intellient and correct conclusion on the e7istence of probable cause.
5G
PRE>5M5NARJ 5NGE"15(A15)N
E0uall+ untenable is petitioner2s contention that his constitutional riht to due process has been i!paired when the anti*
subversion chares filed aainst hi! with the !ilitar+ co!!ission were not investiated preli!inaril+ in accordance with
"ection / of the Anti*"ubversion Act, but in the !anner prescribed b+ Presidential =ecree No. $&, as a!ended b+
Presidential =ecree No. ''. 5t is asserted that under the aforesaid Presidential =ecrees, he is precluded fro! cross*
e7a!inin the prosecution witnesses and fro! bein assisted b+ counsel. Contrar+ to petitioner2s contention, "ection %HbI
of Presidential =ecree No. '' specificall+ rants hi! the riht to counsel, and Presidential =ecree No. $#C a!ended
Presidential =ecree No. $&, precisel+ to secure the substantial rihts of the accused b+ rantin hi! the riht to counsel
durin preli!inar+ investiation. @nder "ection / of Republic Act No. %'33, the accused shall have the riht ?to cross*
e7a!ine witnesses aainst hi!? and in case the offense is penali,ed b+ prision -ayor to death, the preli!inar+
investiation shall be conducted b+ the proper Court of First 5nstance. As to whether or not the denial to an accused of an
opportunit+ to cross*e7a!ine the witnesses aainst hi! in the preli!inar+ investiation constitutes an infrine!ent of his
riht to due process, <e have to advert to certain basic principles. 1he Constitution ?does not re0uire the holdin of
preli!inar+ investiations. 1he riht e7ists onl+, if and when created b+ statute.?
!(
5t is ?not an essential part of due
process of law.?
!1
1he absence thereof does not i!pair the validit+ of a cri!inal infor!ation or affect the 6urisdiction of the
court over the case.
!!
As a creation of the statute it can, therefore, be !odified or a!ended b+ law.
5t is also evident that there is no curtail!ent of the constitutional riht of an accused person when he is not iven the
opportunit+ to ?cross*e7a!ine the witnesses presented aainst hi! in the preli!inar+ investiation before his arrest, this
bein a !atter that depends on the sound discretion of the ;ude or investiatin officer concerned.?
!3

"pea-in for the Court, ;ustice 1uason, in Bustos v. >ucero,
!4
discussed the !atter e7tensivel+, thusB t.ñ./0h123/
As applied to cri!inal law, substantive law is that which declares what acts are cri!es and prescribes the
punish!ent for co!!ittin the!, as distinuished fro! the procedural law which provides or reulates the
steps b+ which one who co!!its a cri!e is to be punished. 8## C.;."., 4&.: Preli!inar+ investiation is
e!inentl+ and essentiall+ re!edialA it is the first step ta-en in a cri!inal prosecution.
As a rule of evidence, section %% of Rule %3C is also procedural. Evidence K which is 2the !ode and
!anner of provin the co!petent facts and circu!stances on which a part+ relies to establish the fact in
dispute in 6udicial proceedins2 K is identified with and for!s part of the !ethod b+ which, in private law,
rihts are enforced and redress obtained, and, in cri!inal law, a law transressor is punished. Cri!inal
procedure refers to pleadin, evidence and practice. 8"tate vs. Capaci, %/4 "o., 4%&A %'& >a., 49#.: 1he
entire rules of evidence have been incorporated into the Rules of Court. <e can not tear down section %%
of Rule %3C on constitutional rounds without throwin out the whole code of evidence e!bodied in these
Rules.
5n 'eazeil 4s. Ohio, #9& @."., %9', '3 >aw. ed., #%9, the @nited "tates "upre!e Court saidB t.ñ./0h123/
2E7pressions are to be found in earlier 6udicial opinions to the effect that the constitutional
li!itation !a+ be transressed b+ alterations in the rules of evidence or procedure. "ee
Calder Bull, $ =all $C9, $&3. % >. ed., 94C, 9/3A Cu!!ins vs. Missouri, 4 <all. #'', $#9,
%C >. ed., $/9, $94A Lrin Missouri, %3' @.". ##%, ##C, #$#, #' >. ed., /3', /3C, /%3, #
"up. Ct. Rep. 44$. And there !a+ be procedural chanes which operate to den+ to the
accused a defense available under the laws in force at the ti!e of the co!!ission of his
offense, or which otherwise affect hi! in such a harsh and arbitrar+ !anner as to fall
within the constitutional prohibition. Lrin vs. Missouri, %3' @."., ##%, #' >. ed., /3', #
"up. Ct. Rep., 44$A 1ho!pson vs. @tah, %'3 @" $4$A 4# >. ed., %39%, %C "up. Ct. Rep.,
9#3. But it is now well settled that statutor+ chanes in the !ode of trial or the rules of
evidence, which do not deprive the accused of a defense and which operate onl+ in a
li!ited and unsubstantial !anner to his disadvantae, are not prohibited. A statute which,
after indict!ent, enlares the class of persons who !a+ be witnesses at the trial, b+
re!ovin the dis0ualification of persons convicted of felon+, is not an e7 post facto law.
.opt vs. @tah, %%3 @."., /'/, #C >. ed., #9$, 4 "up. Ct. Rep., #3#. 4 A!. Cri!e Rep 4%'.
Nor is a statute which chanes the rules of evidence after the indict!ent so as to render
ad!issible aainst the accused evidence previousl+ held inad!issible, 1ho!pson
Missouri, %'% @."., $C3, 4$ >. ed., #34, %C "up. Ct. Rep. &##A or which chanes the
place of trial, (ut vs. Minnesota, & <all. $/, %& >. ed., /'$A or which abolishes a court for
hearin cri!inal appeals, creatin a new one in its stead. "ee =uncan vs. Missouri, %/#
@."., $'', $C#, $C >. ed., 4C/, 4C', %4 "up. Ct. Rep., /'3.2
1ested b+ this standard, we do not believe that the curtail!ent of the riht of an accused in a preli!inar+
investiation to cross*e7a!ine the witness who had iven evidence for his arrest is of such i!portance as
to offend aainst the constitutional inhibition. As we have said in the beinnin, preli!inar+ investiation is
not an essential part of due process of law. 5t !a+ be suppressed entirel+, and if this !a+ be done, !ere
restriction of the privilee for!erl+ en6o+ed thereunder can not be held to fall within the constitutional
prohibition.
5n re6ectin the contention of the political offenders accused in the People2s Court that their constitutional riht to e0ual
protection of the laws was i!paired because the+ were denied preli!inar+ e7a!ination and investiation, whereas the
others who !a+ be accused of the sa!e cri!es in the Court of First 5nstance shall be entitled thereto, this Court saidB t.ñ.
/0h123/
8#: "ection ## in den+in preli!inar+ investiation to persons accused before the People2s Court is
6ustified b+ the conditions prevailin when the law was enacted. 5n view of the reat nu!ber of prisoners
then under detention and the lenth of ti!e and a!ount of labor that would be consu!ed if so !an+
prisoners were allowed the riht to have preli!inar+ investiation, considered with the necessit+ of
disposin of these cases at the earliest possible dates in the interest of the public and of the accused
the!selves, it was not an unwise !easure which dispensed with such investiation in such cases.
Preli!inar+ investiation, it !ust be re!e!bered, is not a funda!ental riht uaranteed b+ the
Constitution. For the rest, the constitutional prohibition aainst discri!ination a!on defendants placed in
the sa!e situation and condition is not infrined.
!5
5t was reali,ed that the procedure prescribed in Republic Act No. /%C3 rantin the co!plainant and respondent in a
preli!inar+ investiation the riht to cross*e7a!ine each other and their witnesses was ?ti!e consu!in and not
conducive to the e7peditious ad!inistration of 6ustice?. .ence, it was found necessar+ in Presidential =ecree No. '' to
si!plif+ the procedure of preli!inar+ investiation to confor! to its su!!ar+ character, b+ eli!inatin the cross*
e7a!ination b+ the contendin parties of their respective witnesses which in the past had !ade the proceedin the
occasion for the full and e7haustive displa+ of parties2 evidence. 1he procedure prescribed in the aforecited decrees
appears 6ustified b+ the necessit+ of disposin cases durin !artial law, especiall+ those affectin national securit+, at the
earliest date. )n the basis of the aforestated settled principles, the curtail!ent of the riht of an accused to cross*e7a!ine
the witnesses aainst hi! in the preli!inar+ investiation does not i!pair an+ constitutional riht. 5t !a+ be relevant to
note that recentl+ in *itton, et al. 4. Castillo, et al.,
!6
this Court denied for lac- of !erit a petition challenin the validit+ of
Presidential =ecree No. '' issued on =ece!ber 9, %&'#, on the round that aforesaid decree now ?for!s part of the law
of the land.?
G
PERPE1@A15)N )F 1E"15M)NJ
Petitioner clai!s that the order of the Militar+ Co!!ission for the perpetuation of the testi!on+ of prosecution witnesses
is void because no cop+ of the petition was previousl+ served on hi!. .e asserts that, as a conse0uence, he was not
iven the opportunit+ to contest the propriet+ of the ta-in of the deposition of the witnesses. 5t !ust be noted that
petitioner does not dispute respondents2 clai! that on March %4, %&'/, he -new of the order allowin the ta-in of the
deposition of prosecution witnesses on March $%, to continue throuh April % to 4, %&'/.
1he provisions of Presidential =ecree No. $#C, dated )ctober $%, %&'$, for the conditional e7a!ination of prosecution
witnesses before trial, is si!ilar to the provisions of "ection ' of Rule %%& of the Revised Rules of Court. Presidential
=ecree No. $#C providesB t.ñ./0h123/
<here, upon proper application, it shall satisfactoril+ appear to the !ilitar+ tribunal before which a case is
pendin, that a witness for the prosecution or the defense is too sic- or infir! to appear at the trial, or has
to leave the Philippines with no definite date of returnin thereto, or where dela+ in the ta-in of its
testi!on+ !a+ result in the failure of 6ustice or adversel+ affect national securit+, the witness !a+ forthwith
be e7a!ined and his deposition i!!ediatel+ ta-en, such e7a!ination to be b+ 0uestion and answer, in
the presence of the other part+, or even in the latter2s absence provided that reasona5le notice to attend
the e7a!ination or the ta-in of the deposition has 5een ser4ed &pon hi-, and will be conducted in the
sa!e !anner as an e7a!ination, at the trial, in which latter event the failure or refusal to attend the
e7a!ination or the ta-in of the deposition shall be considered a waiver. 8E!phasis supplied.:
"ection ' of Rule %%& of the Revised Rules providesB t.ñ./0h123/
=eposition of witness for the prosecution. K <here, however, it shall satisfactoril+ appear that the
witness cannot procure bail, or is too sic- or infir! to appear at the trial, as directed b+ the order of the
court, or has to leave the Philippines with no definite date of returnin thereto, he !a+ forthwith be
conditionall+ e7a!ined or his deposition i!!ediatel+ ta-en. "uch e7a!ination or deposition !ust be b+
0uestion and answer, in the presence of the defendant or after reasonable notice to attend the
e7a!ination or the ta-in of the deposition has been served on hi!, and will be conducted in the sa!e
!anner as an e7a!ination at the trial. Failure or refusal on the part of the defendant to attend the
e7a!ination or the ta-in of the deposition after notice hereinbefore provided, shall be considered a
waiver. 1he state!ent or deposition of the witness thus ta-en !a+ be ad!itted in behalf of or aainst the
defendant. .is testi!on+ ta-en, the witness !ust thereupon be dischared, if he has been detained.
1he foreoin was ta-en substantiall+ fro! "ection ' of Rule %%/ of the old Rules of Court, with the difference, a!on
others, that the phrase ?or after one hour notice? in the old Rules of Court has been chaned to ?or after reasonable
notice? in the Revised Rules of Court.
5n lago 4. !eople,
!7
this Court, in re6ectin the contention that no written !otion was filed b+ the prosecutin attorne+ for
the ta-in of the depositions and that less than one hour notice has been iven the defendant, held that ?the one*hour
notice !entioned in "ection ', Rule %%/, of the Rules of Court, was intended b+ law !ainl+ to ive the defendant ti!e to
attend the ta-in of a deposition and not to prepare for the ta-in thereof because in realit+ there is no need for
preparation. 5t is not a trial where the defendant has to introduce his evidence. 5t is onl+ ta-in down the state!ents of the
witnesses for the prosecution with opportunit+ on the part of the defendant to cross*e7a!ine the!.?
1he thrust of Elao is that the order of the court authori,in the ta-in of the deposition of the witnesses of the
prosecution and fi7in the date and ti!e thereof is the one that !ust be served on the accused within a reasonable ti!e
prior to that fi7ed for the e7a!ination of the witnesses so that the accused !a+ be present and cross*e7a!ine the
witness. )n this point of the ti!e iven the defendant to attend the ta-in of the deposition, Professor <i!ore has the
followin to sa+B t.ñ./0h123/
1he opportunit+ of cross*e7a!ination involves two ele!entsB
8%: ,otice to the opponent that the deposition is to be ta-en at the ti!e and place specified, and
8#: A s&fficient inter4al of ti-e to prepare for e7a!ination and to reach the place.
777 777 777
8#: 1he re0uire!ents as to the inter4al of ti-e are now ever+where reulated b+ statute .... A the rulins in
reard to the sufficienc+ of ti!e are thus so dependent on the interpretation of the detailed prescriptions
of the local statutes that it would be i!practicable to e7a!ine the! here. But whether or not the ti!e
allowed was supposedl+ insufficient or was precisel+ the ti!e re0uired b+ statute, the act&al attendance
of the part+ obviate an+ ob6ection upon the round of insufficienc+, because then the part+ has actuall+
had that opportunit+ of cross*e7a!ination ... for the sole sa-e of which the notice was re0uired.
!'

<e, therefore, hold that the ta-in of the testi!on+ or deposition was proper and valid.
G5
6A)$R OF !T)T)O,R7S !RS,C
1here is conflict a!on the authorities as to whether an accused can waive his riht to be present at his trial. "o!e courts
have rearded the presence of the accused at his trial for felon+ as a 6urisdictional re0uire!ent, which cannot be waived.
!9
Man+ others do not accept this view.
3(
5n defense of the first view, it has been stated that the public has an interest in
the life and libert+ of an accused and that which the law considers essential in a trial cannot be waived b+ the accused.
31
5n support of the latter view, it has been arued that the riht is essentiall+ for the benefit of the accused,
3!
and that ?since
the accused, b+ pleadin uilt+, can waive an+ trial at all, he should be able to waive an+ !ere privilee on the trial that is
desinated onl+ to aid hi! in shieldin hi!self fro! such result.?
33
5n this 6urisdiction, this Court, in !eople 4. A4anceña,
34
traced the histor+ of the constitutional riht of the accused to be
present at his trial fro! 8.S. 4. 9arelsen
35
and 8.S. 4. 'ello
36
:iaz 4. 8nited States
37
and !eople 4. Francisco.
3'
5n the
first two cases, it was ruled that one whose life or libert+ is involved in the prosecution for felon+ !ust be personall+
present at ever+ stae of the trial when his substantive rihts !a+ be affected b+ the proceedins and that it is not within
his power to waive the riht to be personall+ present. 5n :iaz 4. 8nited States and !eople 4. Francisco, this rule was
!odified. @pon the authorit+ of the :iaz and Francisco cases, the Court laid down as the law in this 6urisdiction thatB 8%: in
cases of felon+, the accused has the riht to be present at ever+ stae of the trial, inclusive of the arrain!ent and
pronounce!ent of the 6ud!entA 8#: where the offense is capital the riht of the accused to be present at ever+ stae of
the trial is indispensable and cannot be waivedA 8$: even in felonies not capital, if the accused is in c&stody, his riht to be
present at ever+ stae of the trial is li-ewise indispensable and cannot be waivedA 84: where the offense is not capital and
the accused is not in custod+ his presence is indispensable onl+B 8a: at the arrain!entA 8b: at the ti!e the plea is ta-en, if
it be one of uiltA and 8c: at the pronounce!ent of 6ud!ent. 1he Court looted the rationale of :iaz 4. 8nited States as
basis of its rulin, thusB t.ñ./0h123/
... the court was called upon to pass on the 0uestion whether the provision in section / of the Philippine
Civil (overn!ent Act, securin to the accused in all cri!inal prosecutions 2the riht to be heard b+ hi!self
and counsel,2 !a-es his presence indispensable at ever+ stae of the trial, or invests hi! with a riht
which he is alwa+s free to assert, but which he also !a+ waive b+ his voluntar+ act. After observin that
an identical or si!ilar provision is found in the constitutions of the several states of the A!erican @nion,
and that its substantial e0uivalent is e!bodied in the 9th A!end!ent to the Constitution of the @nited
"tatesA that it is the riht which these constitutional provisions secure to persons accused of cri!e in that
countr+ that was carried here b+ the conressional enact!entA and that, therefore, accordin to a fa!iliar
rule, the prevailin course of decision there !a+ and should be accepted as deter!inative of the nature
and !easure of the riht here, ;ustice Gan =evanter spea-in for the court, saidB 2As the offense in this
instance was a felon+, we !a+ put out of view the decisions dealin with this riht in cases of
!isde!eanor. 5n cases of felon+ our courts, with substantial accord, have rearded it as e7tendin to
ever+ stae of the trial, inclusive of the e!panelin of the 6ur+ and the reception of the verdict, and as
bein scarcel+ less i!portant to the accused than the riht of trial itself. And with li-e accord the+ have
rearded an accused who is in custod+ and one who is chared with a capital offense as incapable of
waivin the rihtA the one, because his presence or absence is not within his own controlA and the other
because, in addition to bein usuall+ in custod+, he is dee!ed to suffer the constraint naturall+ incident to
an apprehension of the lawful penalt+ that would follow conviction. But, where the offense is not capital
and the accused is not in custod+, the prevailin rule has been, that if, after the trial has beun in his
presence, he voluntaril+ absents hi!self, this does not nullif+ what has been done or prevent the
co!pletion of the trial, but, on the contrar+, operates as a waiver of his riht to be present, and leaves the
court free to proceed with the trial in li-e !anner and with li-e effect as if he were present.2
39
5n A4anceña, the issue was whether the defendant chared with an offense which is not capital had i!pliedl+ waived his
riht to be present at his trial, because of his failure to appear in court at the trial of his case.
@nder the present Constitution, however, trial even of a capital offense !a+ proceed notwithstandin the absence of the
accused. 5t is now provided that ?after arrain!ent, trial !a+ proceed notwithstandin the absence of the accused
provided that he has been dul+ notified and his failure to appear is un6ustified.?
4(

)n the basis of the aforecited provision of the Constitution which allows trial of an accused in a5sentia, the issue has
been raised whether or not petitioner could waive his riht to be present at the perpetuation of testi!on+ proceedins
before respondent Co!!ission..
As a eneral rule, sub6ect to certain e7ceptions, an+ constitutional or statutor+ riht !a+ be waived if such waiver is not
aainst public polic+. 1he personal presence of the accused fro! the beinnin to the end of a trial for felon+, involvin his
life and libert+, has been considered necessar+ and vital to the proper conduct of his defense. 1he ?trend of !odern
authorit+ is in favor of the doctrine that a part+ in a cri!inal case !a+ waive irreularities and rihts, whether constitutional
or statutor+, ver+ !uch the sa!e as in a civil case.?
41
1here are, for instance, certain rihts secured to the individual b+ the funda!ental charter which !a+ be the sub6ect of
waiver. 1he rihts of an accused to defend hi!self in person and b+ attorne+, to be infor!ed of the nature and cause of
the accusation, to a speed+ and public trial, and to !eet the witnesses face to face, as well as the riht aainst
unreasonable searches and sei,ures, are rihts uaranteed b+ the Constitution. 1he+ are rihts necessar+ either because
of the re0uire!ents of due process to ensure a fair and i!partial trial, or of the need of protectin the individual fro! the
e7ercise of arbitrar+ power. And +et, there is no 0uestion that all of these rihts !a+ be waived.
4!
Considerin the
aforecited provisions of the Constitution and the absence of an+ law specificall+ re0uirin his presence at all staes of his
trial, there appears, therefore, no loical reason wh+ petitioner, althouh he is chared with a capital offense, should be
precluded fro! waivin his riht to be present in the proceedins for the perpetuation of testi!on+, since this riht, li-e the
others aforestated, was conferred upon hi! for his protection and benefit.
5t is also i!portant to note that under "ection ' of Rule %%& of the Revised Rules of Court 8=eposition of witness for the
prosecution: the ?Failure or refusal on the part of the defendant to attend the e7a!ination or the ta-in of the deposition
after notice hereinbefore provided, shall 5e considered a 2ai4er? 8E!phasis supplied.: "i!ilarl+, Presidential =ecree No.
$#C e7pressl+ provides that ? ... the failure or refusal to attend the e7a!ination or the ta-in of the deposition shall 5e
considered a 2ai4er.? 8E!phasis supplied:.
5t is for the foreoin reasons that the writer of this opinion voted with the si7 89: ;ustices who ruled on the full riht of
petitioner to waive his presence at said proceedins..
"ince onl+ si7 89: ;ustices 8Fernando, 1eehan-ee, Barredo, Antonio, MuEo, Pal!a and A0uino: are of the view that
petitioner !a+ waive his riht to be present at all staes of the proceedins while five 8/: ;ustices 8Castro, Ma-asiar,
Esuerra, Concepcion ;r. and Martin: are in aree!ent that he !a+ so waive such riht, e7cept when he is to be
identified, the result is that the respondent Co!!ission2s )rder re0uirin his presence at all ti!es durin the proceedins
before it should be !odified, in the sense that petitioner2s presence shall be re0uired onl+ in the instance 6ust indicated.
1he rulin in !eople 4. A4anceña
43
is thus pro tanto !odified.
Finall+, it is insisted that even if said orders and decrees were valid as !artial law !easures, the+ have ceased to be so
upon the ter!ination of the e!erenc+. 5n A1&ino, et al. 4. nrile, et al., supra, <e adverted to the fact that the co!!unist
rebellion which i!pelled the procla!ation of !artial law has not abated. 5n the absence of an+ official procla!ation b+ the
President of the cessation of the public e!erenc+, <e have no basis to conclude that the rebellion and co!!unist
subversion which co!pelled the declaration of !artial law, no loner pose a daner to public safet+.
5t is i!portant to note here that an accused bein tried before a !ilitar+ tribunal en6o+s the specific constitutional
safeuards pertainin to cri!inal trials. 1hus, he is entitled to be heard b+ hi!self and counsel,
44
to be infor!ed of the
nature and cause of the accusation,
45
to !eet the witnesses face to face, to have co!pulsor+ process to secure the
attendance of witnesses and the production of evidence in his behalf,
46
and to be e7e!pt fro! bein a witness aainst
hi!self. As in trial before civil courts, the presu!ption of innocence can onl+ be overco!e b+ evidence be+ond reasonable
doubt of the uilt of the accused.
47
1hese tribunals, in eneral, are ?bound to observe the funda!ental rules of law and
principles of 6ustice observed and e7pounded b+ the civil 6udicature.?
4'
"ection %% of the Manual for Courts*Martial
specificall+ provides that the ?rules of evidence enerall+ reconi,ed in the trial of cri!inal cases in the courts of the
Philippines shall be applied b+ courts*!artial.?
49
1his is applicable to trials in the !ilitar+ co!!ission .
5(
1here is,
therefore, no 6ustification for petitioner2s contention that such !ilitar+ tribunals are concerned pri!aril+ with the conviction
of an accused and that proceedins therein involve the co!plete destruction and abolition of petitioner2s constitutional
rihts. 1his is not, however, to preclude the President fro! considerin the advisabilit+ of the transfer of these cases to the
civil courts, as he has previousl+ announced.
5N G5E< )F A>> 1.E F)RE()5N(, 6ud!ent is hereb+ rendered dis!issin the petitions for prohibition with preli!inar+
in6unction and settin aside the te!porar+ restrainin order issued on April C, %&'/, with costs aainst petitioner.
A1&ino, Concepcion, Jr. and "artin, JJ., conc&r.;<2ph=;.ñ>t
"a?alintal, C.J, too? no part.



S)*a+a,) O*-%-o%.

CASTRO, J., concurrin and dissentinB
5 a! constrained to write this concurrin and dissentin opinion because 8a: althouh 5 substantiall+ aree with ;ustice
Feli7 M. Antonio2s forthriht discussion and learned resolution of the inescapable issues posed b+ the petition and the
supple!ental petitions filed b+ the petitioner Benino ". A0uino, ;r., 5 disaree with his approbation of the ?riht? of total
waiver clai!ed b+ the petitioner, and 8b,: 5 desire to e7press !+ views on !atters which, althouh in a sense peripheral
and not s0uarel+ in issue, are nevertheless coent and pertinent to the central issues at bar.
%. At the threshold, 5 !ust state that 5 voted to den+ the petitioner A0uino2s !otion to withdraw his petitions and all related
!otions and incidents, for the self*sa!e reasons that i!pelled !+ vote to den+ ;ose <. =io-no2s !otion to withdraw his
petition in the Martial >aw cases 8A0uino, et al. vs. Enrile, et al., >*$//49, and other allied cases.*: >i-e in the cases 6ust
adverted to, there are in the case at bar considerations and issues of transcendental and rave i!port, and 5 apprehend
that reat disservice !a+ be caused to the national interest if these are not resolved on the !erits.
#. 5 a! hard put to understand how and wh+ the petitioner2s counsels con6ured the aru!ent that under the Bill of Rihts
the ?due process? accorded to persons accused in cri!inal cases conte!plates onl+ 6udicial process. 1his aru!ent runs
s0uarel+ athwart the ti!e*honored doctrine in the Philippines as well as in the @nited "tates K a doctrine that the
petitioner2s counsels !ust surel+ be aware of that due process in cri!inal trials !a+ co!prehend not onl+ 6udicial process,
but also e7ecutive process 8and even leislative process in the proper cases:.
$. Corollaril+ to this contention of the petitioner, the further thesis is advanced that his trial b+ a !ilitar+ co!!ission denies
hi! due process because he is deprived of the riht of appeal. 5t see!s rather ele!entar+ that the riht of appeal, unless
the Constitution e7pressl+ uarantees such riht, is !erel+ statutor+ and !a+ be withdrawn, !odified or altered at an+
ti!e K a principle that his counsels -now onl+ too well. Even an appeal to an inter!ediate colleiate appellate court or to
the "upre!e Court is not a riht under the Constitution unless an e7plicit uarantee can be found in the words thereof.
And as far as appeal is concerned, it is apparent that the petitioner2s counsels are not aware of the nu!ber of the levels of
review of a decision of conviction b+ a !ilitar+ co!!ission in our 6urisdiction. Four levels of review 8e0uivalent to four
levels of auto!atic appeal: are provided, na!el+B the first review b+ the "taff ;ude Advocate of the Chief of "taff 8who
appoints the !ilitar+ co!!ission:A the second review b+ a Board of Review of not less than three senior officers, of the
;ude Advocate (eneral2s "erviceA the third review b+ a Board of Review of not less than three senior officers of the
;ude Advocate (eneral2s "erviceA the third review b+ a Board of Militar+ Review actin for the "ecretar+ of National
=efense and consistin of not less than two law+er*officers of at least field ran-A and the fo&rth and final review b+ the
"ecretar+ of ;ustice for the President of the Philippines as Co!!ander*in Chief. 1hese four reviews are co!pulsor+A none
of the! !a+ be b+passed or dispensed with. And even if the "taff ;ude Advocate, the Board of Review, and the Board of
Militar+ Review all concur in the 6ud!ent of conviction and the sentence i!posed b+ the !ilitar+ co!!ission, the
"ecretar+ of ;ustice !a+ +et, if in his opinion the evidence so warrants, reco!!end to the President the ac0uittal or
e7oneration of the accused. "o that fro! arrain!ent b+ a !ilitar+ co!!ission to final action b+ the President, a !ini!u!
of thirteen presu!ptivel+ responsible individuals in different capacities are involved in the entire processB a !ilitar+
co!!ission of not less than five !e!bers, a "taff ;ude Advocate, a Board of Review of not less than three officers a
Board of Militar+ Review of not less than two officers, the "ecretar+ of ;ustice, and the President. 5 cannot accept the
petitioner2s inferential conclusion that all the twelve persons involved 8before the President ta-es final action: can be
dictated to, assu!in that the President is !inded to influence the!. 1he petitioner !a+ not be aware what the !ilitar+
co!!ission now e7istin have ac0uitted !an+ who have been accused before the!, and that convictions have been
reversed or !odified upon the reco!!endation of the reviewin officers and boards of officers
4. 1he petitioner !a-es the indict!ent that the !ilitar+ tribunals and the entire ;udiciar+ are, to paraphrase hi!, well
under the thu!b of the President of the Philippines. 5 0uote his e7act wordsB ?Mr. Marcos is the sinle enius, co!posin
and directin all the proceedins, whether in the !ilitar+ tribunal or in the civil courts... HandI has destro+ed the
independence of the civil courts..... 1rials b+ civil courts would still be a travest+ of 6ustice....? 1his accusation is doubtless
ver+ serious, but 5 sa+ that it is a ravel+ irresponsible one. 1o declare or i!pl+ that the entire ;udiciar+, fro! the Chief
;ustice and Associate ;ustices of the "upre!e Court down to the last !unicipal 6ude, is under dictation b+ the President,
is an indict!ent that can co!e onl+ fro! a person who does not -now whereof he spea-s. 5f the petitioner has no faith in
!ilitar+ 6ustice and at the sa!e ti!e professes absolute lac- of faith in the ;udiciar+, does this !ean that the petitioner is
so !aicall+ endowed that onl+ he and he alone is capable of !etin out 6ustice in this countr+N 1he over*all wor-load of
all the courts in the Philippines has increased i!!easurabl+. 5f this does not indubitabl+ indicate the faith of the people in
the ;udiciar+ then 5 do not -now what does. 5f the petitioner does not share the faith of the people in the ;udiciar+, we !ust
loo- to reasons other than the ostensible ones for his irresponsible and reprehensible state!ents. 1o !+ !ind these
reasons are obvious and need not be belabored.
/. )n the !atter of whether the petitioner has what he clai!s is a ?riht of total waiver? of his presence in the proceedins
before the !ilitar+ co!!ission, 5 confess that the basis for such view escapes !e. 1he trouble with the advocac+ of the
so*called ?riht? of total waiver is that it places undue and inordinate stress on the ?rihts? of the individual and co!pletel+
refuses to reconi,e that the "tate, too, has its own rihts and duties. 5 do not believe that there can be an+ debate on the
riht and obliation of the "tate to ad!inister 6ustice properl+. Part and parcel of this riht and obliation is the riht of a
tribunal, whether 6udicial or e7ecutive, to satisf+ itself that the person who! it !a+ later convict upon the evidence is the
accused pointed to b+ the e+e*witnesses for the prosecution. Because if the witnesses point to F, and the accused
actuall+ happens to be J, the court of tribunal has, in conscience, no recourse but to absolve J. For, the proper
identification of the accused is the ver+ 1&intessence and sine 1&a non of an+ valid prosecution, is the ver+ f&nda-ental
of d&e process in an+ cri!inal trial. "urel+, if the co!!ission is to dischare its burden conscientiousl+, it cannot be
denied the riht to deter!ine for itself the proper identit+ of the person who stands accused before it. 1his riht has
absolute pri!ac+ over what the petitioner calls his ?riht? of total waiver of his presence.
)f course, in this particular case of the petitioner, it could be arued that he is a national fiure and therefore is -nown b+
ever+bod+. But 5 challene the correctness of this postulate. For can it not possibl+ happen that a !e!ber of the tr+in
tribunal !a+ have heard of Benino ". A0uino, ;r., the for!er (overnor of 1arlac and for!er "enator, but !a+ have never
actuall+ seen hi! beforeN 5dentification is essentiall+ one of perception of siht and not a process of inference or strained
deductive reasonin. 5t !a+ be correct to infer fro! the declarations in court of witnesses for the prosecution who refer to
a Benino ". A0uino, ;r., for!er (overnor of 1arlac and for!er "enator, that the person referred to is the petitioner, but
this cannot thereb+ foreclose the petitioner fro! later challenin the validit+ of his conviction 8if he is convicted: upon the
round that not one of the prosecution witnesses pointed to hi! as the indicted Benino ". A0uino, ;r.
M+ understandin of the provisions of the new Constitution on waiver of presence in cri!inal proceedins is that such
waiver !a+ be validl+ i!plied principall+ in cases where the accused has 6u!ped ban or has escaped, but certainl+ !a+
not he asserted as a !atter of absolute riht in cases where the accused is in custod+ and his identification is needed in
the course of the proceedins.
And what of the reviews to be conducted b+ the "taff ;ude Advocate of the Chief of "taff, the Board of Review, the Board
of Militar+ Review, and the "ecretar+ of ;usticeN 5s it not the bounden dut+ of these individuals, sinl+ and collectivel+, to
satisf+ the!selves be+ond cavil at the outset of review that the person convicted b+ the co!!ission is the accused
na!ed in the chares and that he was identified properl+ b+ the e+ewitnesses for the prosecutionN
1hus, 5 voted for 1&alified 2ai4erB the accused !a+ valve his presence in the cri!inal proceedins e7cept at the staes
where identification of his person b+ the prosecution witnesses is necessar+. 5 !iht aree to the proposition of ?total?
waiver in an+ case 2here the acc&sed agrees explicitly and &ne1&i4ocally in 2riting signed 5y hi- or personally -anifests
clearly and ind&5ita5ly in open co&rt and s&ch -anifestation is recorded, that whenever a prosecution witness !entions a
na!e b+ which the accused is -nown, the witness is referrin to hi! and to no one else.
<hat is disturbin is that because si7 ;ustices voted for ?total? waiver and onl+ five ;ustices voted for 0ualified waiver, the
6udes of all inferior courts would now be at a loss to deter!ine, in an+ iven situation, whether to ta-e the ?total? waiver
position or follow the 0ualified waiver doctrine K unless it be conceded that because the Court is divided and the ?total?
waiver theor+ fails to co!!and the assent of eiht ;ustices, the 0ualified waiver theor+ !ust be rearded as doctrinal law.
)therwise, each 6ude should be left to deter!ine, accordin to his conscience and the !ilieu of each case, what to do in
order to ad!inister 6ustice properl+.
Ac0uittal on a !ista-en identit+ basis has occurred in nu!berless instances all over the world. <hile it is true that the
Rules of Court provide that identit+ of na!e !eans identit+ of person, it is a well*-nown fact in this countr+ that there are
na!es so co!!on that !an+ persons carr+ the sa!e na!e. Especiall+ considerin that our population has bureoned
considerabl+, no one can den+ that there are !an+ persons b+ the na!e ;ose Cru,, !an+ b+ the na!e ;ose "antos,
!an+ b+ the na!e ;ose Re+es, ad infinit&-** 8which is ood enouh reason wh+ the President of the 5nterated Bar,
retired "upre!e Court ;ustice ;ose B.>. Re+es, has found it necessar+ to put the letters ?B? and ?>? between the na!es
?;ose? and ?Re+es,? and wh+ 5 have used the na!e ?Rui,? in !+ na!e in order that !+ identit+ will not be confused with
those of two other persons who are -nown b+ the na!e Fred Castro:.
9. =urin the deliberations on this case, there ca!e to the attention of the Court ru!ors and a!orphous bits of news to
the effect that the petitioner was on the vere of death because of his ?huner stri-e.? Curiousl+ and oddl+ enouh, none
of those who purve+ed the ru!ors ever thouht of sub!ittin to the Court a state!ent fro! the "ecretar+ of National
=efense as to the state of health of the petitioner. And because of this, there was a feelin on the part of the !e!bers of
the Court that the+ were bein sta!peded into decidin this case on the basis of the petitioner2s ?huner stri-e.? As far as
5 a! concerned, 5 did not thin- it advisable for the Court to re0uest the "ecretar+ of National =efense for such state!ent,
because 5 assu!ed that if the petitioner were indeed in a state where his death was i!!inent, his counsels would have
co!e forward with alacrit+ to infor! the Court accordinl+ and this, inspite of the petitioner2s !otion to withdraw which, at
the ti!e the ru!ors reached the Court, was still unresolved. 1o arue that because the petitioner had alread+ filed his
!otion to withdraw there was no !ore need for his counsels to ive the Court infor!ation reardin his supposedl+
deterioratin health, is to assu!e erroneousl+ that the Court would rant his !otion.
'. 5 here !a-e of record !+ considered view that the petitioner has deliberatel+ and calculatinl+ tried to utili,e the Court
as a foru! for his propaanda. First he said he preferred trial b+ the civil courts to trial b+ an+ !ilitar+ tribunal, but in the
ne7t breath he denounced the civil courts as ?lac-in in independence.? 1hen he filed a petition with the Court to stop the
proceedins before the !ilitar+ tribunalA shortl+ thereafter he !oved to withdraw it, sa+in that his re!edies had co!e
?too little and too late.? Ne7t he renounced the services of all his counsels, civilian and !ilitar+, +et his law+ers continued
to file pleadins in his behalf with the Court, visit hi! in his 0uarters, and assist hi! in the perpetuation proceedins
before the !ilitar+ co!!ission. 1hen his law+ers filed a !anifestation with the Court clai!in that the !ilitar+
co!!ission2s decision to co!pel hi! to appear was for the purpose of ?dehu!ani,in and hu!iliatin? hi!A but when the
Court, actin on his !anifestation, restrained the !ilitar+ co!!ission, he directed his law+ers to withdraw his petitions
before the Court, includin his pra+er for a te!porar+ restrainin order. .e infor!ed the newspapers that his ?huner
stri-e? was a protest aainst his co!pelled presence in the perpetuation proceedins, but when si7 ;ustices of the Court
voted for his ?riht? to ?total? waiver of his presence, he announced that he would attend the proceedins. All of these
develop!ents could indeed be read to !ean one or both of two thinsB that his ?huner stri-e? was, after all, perhaps not
0uite what it purported to be andDor that he has been triflin and continues to trifle with the !ilitar+ co!!ission and with
the Court.
C. 5f 5 were the petitioner, and 5 -now 5 a! innocent, there would appear to be no reason for !e not to face the
proceedins frontall+ and establish !+ innocence. 1his is not to i!pl+ that the petitioner is uilt+ of the charesA it is
!erel+ to stress that his behavior is hardl+ what perceptive people would e7pect fro! a !an who professes innocence. 5f
it is propaanda that is in the bac- of the head of the petitioner, 5 would thin- that the hihest*0ualit+ propaanda in his
favor is to establish his innocence of the chares soonest possible.
&. 5 would li-e to add !+ own e!phasis to the opinion written b+ ;ustice Antonio, b+ statin in capsule !+ considered
viewsB 8%: the President of the Philippines, b+ virtue of his procla!ation of !artial law 8 in sens& strictiore@, which the Court
has alread+ upheld as within the a!bit of his powers under the %&$/ and %&'$ Constitutions, has li-ewise the power to
orani,e !ilitar+ co!!issions in order to carr+ out the ob6ectives and purposes of !artial ruleA 8#: the !ilitar+
co!!issions created b+ authorit+ of the pertinent presidential decrees are leal as well as constitutional, as the said
presidential decrees have been e7pressl+ !ade part of the law of the land b+ the transitor+ provisions of the %&'$
ConstitutionA 8$: b+ tradition and histor+ as well as b+ the e7plicit provisions of the said valid presidential decrees, the
!ilitar+ co!!issions so created have 6urisdiction to tr+ civilians for offenses necessaril+ connected with the ob6ectives of
!artial law, whether these offenses were co!!itted prior to the institution of !artial rule or subse0uent thereto and this
inspite of the fact that the civil courts are open and functioninA 84: the clai! of the petitioner that because the offenses
with which he is chared were, in point of ti!e, alleedl+ co!!itted prior to the declaration of !artial law the+ !a+ not be
ta-en coni,ance of b+ a !ilitar+ co!!ission, inores one inescapable basic fact, and this is that the cri!es i!puted to
hi! are a!on the cri!es that ave cause for the institution of !artial ruleA 8/: the aru!ent of the petitioner that the
Constitution, in providin for due process in cri!inal trials, can !ean onl+ trial b+ 6udicial courts, not onl+ de!onstrates the
petitioner2s !isunderstandin or !isreadin of !ilitar+ traditions in civili,ed countries throuhout the aes but as well
foists an interpretation of the Constitution not warranted b+ its phraseolo+ A 89: well*i!bedded in our 6urisprudence is the
reconition that 6ustice can be ad!inistered fairl+ b+ !ilitar+ tribunalsA and 8': the power of the "upre!e Court to review
death sentences does not include the power to review death sentences i!posed b+ !ilitar+ tribunals.
%3. 5n view, of all that 5 have above stated, and especiall+ in the liht of !+ considered opinion that the !ilitar+
co!!issions now in e7istence have 6urisdiction to tr+ civilians, 6udicial restraint effectivel+ precludes !e fro! e7pressin
!+ views on whether the President should transfer the case of the petitioner to a civil court for trial. Finall+, it is !+ abidin
conviction that the President will do, within the intend!ent of his sacred oath of office, what he believes is 6ust for the
petitioner and, loicall+, also for ever+one else si!ilarl+ situated.
"a?asiar, sg&erra, Concepcion, Jr. and "artin, JJ., conc&r.;<2ph=;.ñ>t
#ERNAN$O, J., concurrin and dissentinB
As was !ade, clear at the openin of the learned and co!prehensive, abl+*penned decision of the Court throuh ;ustice
Antonio, 5 a! for the rantin of petitioner2s !otion for withdrawal. M+ brethren had thouht otherwise and conse0uentl+
did proceed to discuss the !erits of the issues raised. <hile aain 5 would vote for the transfer of the cri!inal chares
aainst petitioner to civil courts, it does not !ean that 5 a! in total disaree!ent. Nonetheless, there !a+ be a need for a
brief e7pression of opinion on !+ part as a !ere for!al concurrence on so!e of the points discussed !a+ for so!e i!pl+
an identit+ of thouht lur-in dor!ant and concealed. 5t is better to avoid an+ !isunderstandin. Moreover, at least to !+
!ind, it would !a-e even !ore apparent the truth that there can be no such thin as co!plete ob6ectivit+ in constitutional
law, a field where there are no absolutes, ever+ constitutional 0uestion involvin a balancin of co!petin values. 5t !a+
also serve, hopefull+, to illustrate that orthodo7+ in 6uridical thouht is not per se antithetical to the professed ai!s of an
innovative leal order. 5t ives !e an opportunit+ li-ewise to ac-nowlede the neat and loical pattern to the decision that
strenthens its plausibilit+. 1he principles of law announced flow fro! the basic pre!ise of the stern necessities of !artial
law. <hat bothers !e is that fro! the standpoint of tried and tested concepts in constitutional law, there would see! to be
a need for further refine!ent as to the scope of such doctrines and for clarif+in differentiation. 1hat, for !e at least,
would have been desirable. 1he apprehension is entertained that as worded in a rather all*enco!assin !anner, the+
!a+ +ield the i!pression of a total surrender to the pressure of events and the de!ands of the ti!es. Candor thouh
co!pels the ad!ission that in the final anal+sis 6uridical theories cannot afford to be insensible to political and social
realities. Now for the rounds of !+ concurrence and !+ dissent.
%. 5n the belief that petitioner2s !otion to withdraw should be ranted, 5 a! co!pelled to dissent. 1his is with due
reconition of the principle that the Court is vested with discretion to rant or refuse such a plea. 1his notwithstandin, 5
a! full+ persuaded that the !ore appropriate response is one of accedin to petitioner2s pra+er that all cases filed on his
behalf in this Court be ter!inated. 1he assu!ption !ust be that before he did arrive at such a conclusion, he had weihed
with care and circu!spection all the relevant aspects of the situation. 5t could ver+ well be that he was pro!pted to ta-e
such a !ove to avoid further an7iet+ and worr+ on his part, considerin that the ulti!ate outco!e could belie e7pectations
and frustrate hopes. At an+ rate, with his !ind thus !ade up and without an+ co!pellin reason, in !+ !ind, for the Court
to -eep the case in the doc-et, the discretion should be e7ercised in his favor. Nor does the fact that he used rather harsh
lanuae in the reasons iven b+ hi! for his !otion of withdrawal !ilitate aainst his plea. 1here !ust be !ore
understandin shown for the state of his ph+sical and !ental health after this lon period of confine!ent, and of late of his
deprivin hi!self of the dail+ sustenance. <hat is !ore, the cuttin ede of his sharp and pointed words !a+ be blunted
b+ the perfor!ance of this Court, which in the ulti!ate anal+sis is the ulti!ate criterion as to whether or not it has
ade0uatel+ dischared its responsibilities or lived up to the trust reposed in it. 1he 6ud!ent is for the entire constituenc+
of infor!ed and concerned citi,ens, not of petitioner alone. As for an+ individual ;ustice, 5 would assu!e that what !atters
!ost is the verdict of his conscience.
#. Now as to the nature of !+ concurrence which has to be further 0ualified. Riht at the outset, !a+ 5 !a-e clear that 5
6oin !+ brethren onl+ to the e7tent that the conclusion arrived at b+ the! confor!s to what 5 had previousl+ e7pressed in
!+ separate opinions in A1&ino 4. !once nrile
1
and A1&ino 4. Co--ission on lections.
!
5t follows that where the
opinion of the Court reflects the stand 5 too-, 5 a! in aree!ent. More specificall+, on the 0uestion of the scope of the
co!petence of a !ilitar+ co!!ission, 5 would predicate !+ vote on the constitutional provision that affi7es to (eneral
)rders Nos. C, %#, and $& the status of bein ?part of the law of the land.?
3
<ith due reconition of the vior with which
counsel for petitioner had pressed the point that such a character cannot be i!pressed on the aforesaid eneral orders if
found in conflict with the present Constitution, 5 still find difficult+ in accordin co!plete acceptance to such a view. 1o do
so in !+ opinion would !ean closin one2s e+es to what was intended b+ the %&'% Constitutional Convention insofar as it
did provide for the continued e7istence of a !ilitar+ co!!ission with such powers as were then e7ercised. 1his is not to
i!pl+ thouh that in no case !a+ a Presidential procla!ation, order, decree, or instruction be challened in appropriate
suits for lac- of confor!it+ to a specific provision found in the present Constitution.
$. 5t is to be stressed further that were it not for the above !andate of the 1ransitor+ Provisions, the sub!ission of
petitioner as to a !ilitar+ co!!ission bein devoid of 6urisdiction over civilians elicits approval. 1he controllin principle, to
!+ !ind, is that supplied in the opinion of the @nited "tates "upre!e Court in :&ncan 4. 9ahana-o?&,
4
a decision
i!pressed with the reatest relevance inas!uch as it interpreted the specific section found in the .awaiian )ranic Act,
5
which was also a feature of the Philippine Autono!+ Act,
6
the source of the !artial law provision in the %&$/ Constitution.
7
As set forth in the :&ncan opinion penned b+ ;ustice Blac-B ?)ur 0uestion does not involve the well established power of
the !ilitar+ to e7ercise 6urisdiction over !e!bers of the ar!ed forces, those directl+ connected with such forces, or
ene!+ bellierents, prisoners of war, or others chared with violatin the laws of war. <e are not concerned with the
reconi,ed power of the !ilitar+ to tr+ civilians in tribunals established as a part of a te!porar+ !ilitar+ overn!ent over
occupied ene!+ territor+ or territor+ reained fro! an ene!+ where civilian overn!ent cannot and does not function. For
.awaii since anne7ation has been held b+ and lo+al to the @nited "tates. Nor need we here consider the power of the
!ilitar+ si!pl+ to arrest and detain civilians interferin with a necessar+ !ilitar+ function at a ti!e of turbulence and
daner fro! insurrection or war. And finall+, there was no speciali,ed effort of the !ilitar+, here, to enforce orders which
related onl+ to !ilitar+ functions, such as, for illustration, curfew rules or blac-outs.?
'
5 see nothin in "oyer 4. !ea5ody 9
that in an+ wa+ runs counter to the above su!!ar+ of the scope of the power of !ilitar+ tribunals. 1hat was an action, as
pointed out b+ ;ustice .ol!es, ?brouht b+ the plaintiff in error aainst the for!er overnor of the state of Colorado, the
for!er ad6utant eneral of the national uard of the sa!e state, and a captain of a co!pan+ of the national uard, for an
i!prison!ent of the plaintiff b+ the! while in office.?
1(
1hen ca!e this portion of the opinionB ?1he co!plaint allees that
the i!prison!ent was continued fro! the !ornin of March $3, %&34, to the afternoon of ;une %/, and that the
defendants 6ustified under the Constitution of Colorado, !a-in the overnor co!!ander in chief of the state forces, and
ivin hi! power to call the! out to e7ecute laws, suppress insurrection, and repel invasion. 5t allees that his
i!prison!ent was without probable cause, that no co!plaint was filed aainst the plaintiff, and that 8in that sense: he was
prevented fro! havin access to the courts of the state, althouh the+ were open durin the whole ti!e but it sets out
proceedins on habeas corpus, instituted b+ hi! before the supre!e court of the state, in which that court refused to
ad!it hi! to bail and ulti!atel+ dischared the writ. $/ Colo. %/4, &% Pac. '$C, and $/ Colo %/&, %# >.R.A. 8N.".: &'&,
%%' A!. "t. Rep. %C&, C/ Pac. %&3. 5n those proceedins it appeared that the overnor, had declared a count+ to be in a
state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff should be arrested as
a leader of the outbrea-, and should be detained until he could be dischared with safet+, and that then he should be
delivered to the civil authorities, to be dealt with accordin to law.?
11
Plaintiff in error would hold the (overnor liable for his
order of detention in the course of suppressin an insurrection. As the case was dis!issed on de!urrer b+ the Circuit
Court, it was elevated to the @nited "tates "upre!e Court. 5n affir!in the 6ud!ent, ;ustice .ol!es cateoricall+ statedB
?<hen it co!es to a decision b+ the head of the state upon a !atter involvin its life, the ordinar+ rihts of individuals
!ust +ield to what he dee!s the necessities of the !o!ent. Public daner warrants the substitution of e7ecution process
for 6udicial process. "ee Leel+ v. "anders, && @.". 44%, 449, #/ >. ed. $#', $#C. 1his was ad!itted with reard to -illin
!en in the actual clash of ar!sA and we thin- it obvious, althouh it was disputed, that the sa!e is true of te!porar+
detention to prevent apprehended har!.?
1!
5t does appear to !e then, and this 5 sa+ with due respect, that it is a rather
forced interpretation to e7tract fro! the above e7plicit declaration of ;ustice .ol!es the !eanin that !ilitar+ tribunals are
vested with 6urisdiction over civilians. <hat was involved was a detention, not a trial. @nder the view 5 entertain that
:&ncan 4. 9ahana-o?& supplies the applicable principle under the %&$/ Constitution, the citations fro! 6inthrop and
Fair-an found in the opinion of the Court are, for !e, less than persuasive.
13
<hat co!pels concurrence on !+ part, to
repeat, is ?the law of the land? section found in the 1ransitor+ Provisions. Absent that provision, 5 would be unable to +ield
to the conclusion reached b+ !+ brethren on the 0uestion of 6urisdiction.
4. 1he reconition i!plicit in the above constitutional precept as to the co!petence of a !ilitar+ co!!ission to conduct
cri!inal trials of certain specified offenses, to !+ !ind, carries with it the dut+ to respect all the constitutional rihts of an
accused. 5t is fro! that perspective that a discussion of the due process uarantee ains sinificance. 5t has a connotation
both substantive and procedural. As to the latter aspect, it is true that it has at its core, to follow the classic for!ulation of
<ebster, the re0uire!ent of a hearin before conde!nation and a process of rational in0uir+, but it has a !uch wider
radiation e7tendin to all the leal safeuards en6o+ed b+ a person indicted for an offense. "o it has co!e to be in the
@nited "tates, where it is dee!ed to include the riht to be free fro! unreasonable searches and sei,ures and to have
e7cluded fro! cri!inal trials an+ evidence illeall+ sei,edA
14
the riht to be free of co!pelled self*incri!ination,
15
the riht
to counsel,
16
the riht to a speed+
17
and public
1'
trial, to confrontation of opposin witnesses,
19
to co!pulsor+ process for
obtainin witnesses,
!(
the riht to a 6ur+ trial,
!1
and the riht aainst double 6eopard+.
!!
"uch an approach is not
unconenial in our 6urisdiction.
!3
A related !atter is the 0uestion of due process and preli!inar+ investiation. 5 have !+
reservations as to the tone of certitude in the opinion of the court concernin the latter2s bein bereft of an+ constitutional
sinificance. 5t was the rulin in !eople 4. Sierra
!4
that ?the principle uninterruptedl+ adhered to HisI that onl+ where an
accused is held to answer a cri!inal offense in an arbitrar+ or oppressive !anner is there a disreard thereof. 1he
re0uire!ent of the proceedin not bein un6ust or unreasonable !ust be !et. 1his is not to rule out cases where such
infir!it+ could be predicated on a showin that the disreard of this procedural safeuard did infect the prosecution with
unfairness. 5n that sense, what was held in !eople 4. "onton as to such a failin nullif+in the proceedin because of the
due process protection could still be conceivabl+ relied
upon.?
!5
1hus we co!e to what for !e is the crucial issue posed, labeled ?the principal 0uestion? in the !e!orandu! of
petitioner. .e would invo-e the hihl+*pri,ed ideal in ad6udication announced in G&tierrez, li-ewise a due process
re0uire!ent, that a part+ to a trial ?is entitled to nothin less than the cold neutralit+ of an i!partial 6ude.?
!6
.is fears, not
devoid of plausibilit+, proceed fro! respondent Co!!ission havin been ?created b+ the President2s )rder and sub6ect to
his control and direction? bein unable to inore his characteri,ation that the evidence aainst petitioner was ?not onl+
stron HbutI overwhel!in.?
!7
5t is to that i!placable tenet of ob6ectivit+ and neutralit+, one of constitutional di!ension, that
appeal is !ade. For G&tierrez has been followed subse0uentl+ in an unbro-en line of decisions with an i!pressive
concord of opinion.
!'
1hat for petitioner is to buttress a stand that !irrors the realities, to reinforce the solidit+ of his
position. For was it not "toessiner who pointed out that there !a+ be at ti!es a tendenc+ difficult to resist in subordinate
!ilitar+ aencies to view !atters in the liht supplied b+ previous pronounce!ents of those hiher up in the ran-s and to
respond to situations less on the basis of e!pirical evidence but !ore on that of confor!it+ to a position officiall+ ta-en. 5
do not have to o that far. 1here is acceptance on !+ part that, as the opinion of the Court states, respondent !ilitar+
co!!ission !a+ be trusted to be fair and that at an+ rate there are still various appeals in the offin. 1hus there are built*
in defenses aainst an+ erroneous or unfair 6ud!ent. 1here is, however, this other point to consider. For the G&tierrez
rulin as now interpreted does not onl+ uard aainst the realit+ but li-ewise the appearance of partialit+. 1hat would
arue stronl+ for the transfer of the trial of the cri!inal chares aainst petitioner to civil courts. Nor would he be the onl+
one thereb+ benefited. Respondent Co!!ission would be spared fro! proceedin with a case where fro! the start, in
view of the peculiar circu!stances, its 5ona fides had been open to 0uestion, althouh ad!ittedl+ lac-in factual
foundation. 1he President li-ewise would be absolved fro! an+ adverse, if unfounded, criticis!. 1he reatest ain of
course would be for the ad!inistration of 6ustice. 1here is relevance to this e7cerpt fro! !alang 4. AosaB
!9
?1his voluntar+
inhibition b+ respondent ;ude is to be co!!ended. .e has lived up to what is e7pected of occupants of the bench. 1he
public faith in the i!partial ad!inistration of 6ustice is thus reinforced. 5t is not enouh that the+ decide cases without bias
and favoritis!. 5t does not suffice that the+ in fact rid the!selves of pre*possessions. 1heir actuation !ust inspire that
belief. 1his is an instance where appearance is 6ust as i!portant as the realit+. >i-e Caesar2s wife, a 6ude !ust not onl+
be pure but be+ond suspicion. At least, that is an ideal worth strivin for. <hat is !ore, there is deference to the due
process !andate.?
3(
Necessaril+ then, there is co!plete acceptance on !+ part of the thouht e7pressed in the opinion of
the Court that the President is not precluded fro! pursuin further a notion previousl+ e7pressed b+ hi! concernin the
possible transfer of the proceedins aainst petitioner to the civil courts.
9. A few words !ore. 5t is to be ad!itted that in copin with the urencies of the ti!es, in accordance with what is
ordained b+ the funda!ental law and thus have its pro!ise fulfilled, this Court is co!pelled to enter a do!ain !uch less
clearl+ !apped out than before. 5t has to find its wa+ as best it can with the liht supplied b+ applicable precedents and
the pro!ptins of reason at ti!es rendered obscure b+ the clouds of the e!erenc+ conditions. Moreover, there !ust be
an awareness that the co!ple7ities of an era !a+ not +ield to the si!plicities of a constitutional funda!entalis! as well as
of the pitfalls of !erel+ doctrinaire interpretations. 5t cannot appl+ precepts with infle7ible riidit+ to fast*chanin
situations. 1he notion of law in flu7 carries it far indeed fro! a fi7ed !oorin in certaint+. 1here !ust be, it cannot be
denied, reater sensitivit+ to the shifts in approach called for b+ the troubled present. Nonetheless, to paraphrase
Cardo,o, care is to be ta-en lest ti!e*tested doctrines !a+ shrivel in the effulence of the overpowerin ra+s of !artial
rule. 1here !ust be an effort to re!ain consistent with the old althouh relevant to the new. 5t is !+ view that thereb+
there is fidelit+ to the concept of the Constitution not onl+ as a broad charter of powers to resolve conflictin issues and
social proble!s, a !eans of orderin the life of the nation in ti!es of nor!alc+ as well as of crisis, but also as a citadel of
civil liberties.
TEE"AN/EE, J, dissentinB
1his opinion for the rantin of petitioner2s withdrawal !otion and in view of its denial, for the rantin of the writ of
prohibition aainst respondent !ilitar+ co!!ission as pra+ed for in the petition, is issued pursuant to the Court2s
Resolution of April #/,%&'/, which ruled as followsB t.ñ./0h123/
... 1he Court, b+ a vote of seven to three, Resolved to =ENJ petitioner2s !otion for withdrawal of the
petition and of all !otions and incidents related thereto. Castro, Barredo, Antonio, Esuerra, A0uino,
Concepcion, ;r. and Martin, ;;., voted to den+ the !otionA Fernando, 1eehan-ee and MuEo, Pal!a, ;;.,
voted to rant the !otion.
1here bein no sufficient votes to declare that the respondent Militar+ Co!!ission is without 6urisdiction
over the pendin cri!inal cases filed aainst the petitioner and that it acted with rave abuse of discretion
in conductin the perpetuation of testi!on+ proceedins, the Court Resolved to lift, effective i!!ediatel+,
the restrainin order issued on April C, %&'/. 1eehan-ee and MuEo, Pal!a, ;;., voted to !aintain the
restrainin order.
)n the 0uestion of waiver of the presence of the petitioner in the perpetuation of testi!on+ proceedins,
Fernando, 1eehan-ee, Barredo, Antonio, MuEo, Pal!a and A0uino, ;;., voted in favor of upholdin the
petitioner2s riht of total waiver of his presenceA Castro, Esuerra, Concepcion, ;r. and Martin, ;;., voted
in favor of 0ualified waiver, that is, that the accused could waive his presence e7cept in the instances
where such presence is needed for his identification b+ the prosecution witnesses.
1he e7tended reasoned resolution or decision and the separate e7tended reasoned concurrin andDor
dissentin opinions will be released ne7t wee-.
Ma-alintal, C.;., too- no part for bein a part+ respondent.A Ma-asiar. ;., is on leave.
5. 5 vote for the rantin of petitioner2s !otion to withdraw his petition and all other pendin !otions and !atters. 1o
paraphrase and cite the Chief ;ustice2s reasons in castin a vote for rantin a si!ilar !otion for withdrawal of petition
filed b+ for!er ;ose <. =io-no in the .abeas Corpus cases
1
8which was also defeated for lac- of necessar+ votes:, such
withdrawal would not e!asculate the ?issues of para!ount public interest? that need to be resolved 8as invo-ed b+ the
!a6orit+: for the+ !a+ be dul+ resolved in the other cases which re!ain pendin, such as the earlier and urent lead case
of G&-a&a 4s. spino and "ilitary Co--ission ,o. B
!
which raises the sa!e funda!ental 0uestion of whether !ilitar+
tribunals have 6urisdiction to tr+ civilians 8wherein petitioner was sentenced on March %9, %&'$ to death b+ firin s0uad,
which sentence was affir!ed on "epte!ber #&, %&'$ b+ the President and which has lon been pendin decision:A and
since it is petitioner A0uino2s life and libert+ that are at sta-e, his choice to renounce his own petition 0uestionin the
6urisdiction of respondent !ilitar+ co!!ission to tr+ the cases filed aainst hi! and the subse0uent incidents and to
re!ove the case fro! this Court2s coni,ance should be respected ?reardless of the fact that 8one: disareed with !an+
of his reasons for so doin? since one ?could not escape a sense of iron+ in this Court2s turnin down the plea to
withdraw .... and then rulin adversel+ to hi! on the !erits of his petition.? 5t !a+ be added that since the !a6orit+ who
voted to den+ the withdrawal !otion nu!bers onl+ seven out of ten ;ustices ta-in part in the deliberations as of the date
of issuance of the Court2s Resolution of April #/, %&'/ which denied the !otion
3
the !a6orit+ opinion would fall short of the
re0uired nu!ber of eiht ;ustices to render a decision on the !erits.
4
1he "olicitor (eneral2s rounds for opposin
withdrawal are not persuasive. 5n his first opposition of April %4, %&'/ where he notes that petitioner ?has chosen to
dra!ati,e his protest b+ stain a huner stri-e. Petitioner2s !otion is thus silentl+ elo0uent in its avoidance of the
reasons for 8withdrawal:,? his pra+er that ?if the petitioner2s !otion is ranted, it should be with pre6udice,? is inconsistent
with his posture that the petition is pre!ature and with the fact that the chares aainst petitioner are still pendin
reinvestiation as ordered b+ the President. 5n his second opposition of April %9, %&'/, he avers that the (overn!ent
?see-s onl+ to present the evidence supportin the chares of !urder, illeal possession of firear!s and subversion
aainst the petitioner,? and if this be so, petitioner2s withdrawal of his petition at bar precisel+ clears the wa+ of all 6udicial
obstacles for the prosecution to do so.
Petitioner2s withdrawal should be properl+ ranted in pursuance of the established principle that the 6udicial power is
e7ercised onl+ when necessar+ for the resolution of an actual case and controvers+, particularl+ in view of the
respondents2 stand in their answer that the petition has been pre!aturel+ filed.
;udicial abstention then would provide the Court with ti!e and opportunit+ to ponder and deliberate on the basic
constitutional 0uestions involved and their ra!ifications which concern inter alia the supre!ac+ of civilian authorit+ over
the !ilitar+, the riht of civilians to 6udicial process as aainst the e7ecutive process of !ilitar+ tribunals, the upholdin of
;udicial Power as vested b+ the Constitution in the "upre!e Court and in such inferior courts as !a+ be established b+
law and the reconition of the individual2s liberties as uaranteed b+ the Bill of Rihts even in a state of !artial law.
55. "ince the !a6orit+ has nevertheless resolved to o into the !erits of the case and the transcendental constitutional
issues, a brief state!ent of the factual bac-round is re0uired for the proper consideration of the issues on the !erits.
Petitioner 8after havin been served on Auust %% and %C, %&'$ at his detention 0uarters with copies of the si7 cri!inal
chares filed aainst hi! with respondent !ilitar+ co!!ission: filed on Auust #$, %&'$ his oriinal petition at bar for
prohibition 0uestionin the 6urisdiction of !ilitar+ tribunals in the absence of a state of war or bellierenc+ over civilians
li-e hi! particularl+, for civil offenses alleedl+ co!!itted before the procla!ation of !artial law and co!plainin of
violation of his constitutional rihts in that he was deprived of due process and the vested riht to preli!inar+ investiation
as provided b+ law and the assistance of counsel with riht to cross*e7a!ine the witnesses aainst hi!.
Petitioner further alleed that the !ilitar+ tribunals are !ere instru!ents and sub6ect to the control of the President as
created b+ hi! under the (eneral )rders issued b+ hi! as Co!!ander*in*Chief of the Ar!ed Forces of the Philippines,
5
and that he had alread+ been publicl+ indicted and ad6uded uilt+ b+ the President of the chares in a nationwide press
conference held on Auust #4, %&'%, followin the Pla,a Miranda bo!bin of Auust #%, %&'% and the suspension of the
privilee of the writ of habeas corpus under Procla!ation No. CC& on Auust #$, %&'%.
1he Court set an urent preli!inar+ hearin on Auust #9, %&'$ 8a "unda+: on the 0uestion of whether with its
!e!bership then on onl+ nine 8&: ;ustices, it had the re0uired 1&or&- to ta-e coni,ance of the petition. No further action
was ta-en b+ the Court for followin petitioner2s refusal to participate in the arrain!ent and trial set on Auust #', %&'$,
the President issued on Auust #C, %&'$ Ad!inistrative )rder No. $//, creatin a special five*!e!ber co!!ittee to
?reinvestiate the chares aainst Benino ". A0uino, ;r. and others,? co!posed of a retired "upre!e Court ;ustice to be
desinated b+ the Chief ;ustice as chair!an and four !e!bers to be desinated respectivel+, b+ the accused*petitioner
hi!self, the president of the 5nterated Bar of the Philippines, the "ecretar+ of ;ustice and the "ecretar+ of National
=efense, with the proviso that ?should the accused decline to desinate a representative to the co!!ittee, the Chief
;ustice shall desinate so!eone in his stead and e7pressl+ statin the followin pre!ises and ob6ectivesB t.ñ./0h123/
<.EREA", Benino ". A0uino, ;r. and his Counsel have repeatedl+ co!plained, orall+ and in writin that
the accused has been denied his constit&tional right to d&e process and have openl+ 0uestioned the
reularit+ and fairness of the application to hi! of the established procedure sanctioned b+ law and
practiceA
<.EREA", althouh the Prosecution "taff is assu!ed to have conducted a fair and i-partial initial
in4estigation, it is desirable to reassure the accused that he contin&es to enCoy his constit&tional right to
d&e process and to re-o4e any do&5t whatsoever in the !ind of an+bod+ that onl+ after findin a pri-a
facie case aainst hi! were chares filedA
<.EREA", it is necessar+ for the above purpose that a Co!!ittee be created to conduct a re*
investiation of said chares to de!onstrate that ever+thin is bein done to ins&re &t-ost fairness,
i-partiality and o5Cecti4ity in the prosecution of the chares aainst the accused and to deter-ine
2hether really there is reasona5le gro&nd to 5elie4e that the offenses charged 2ere in fact co--itted
and the acc&sed is pro5a5ly g&ilty thereof.
777 777 777
1he Co!!ittee shall convene i!!ediatel+, conduct the preli!inar+ investiation in the !ost e7peditious
!anner and sub!it its findins to the "ecretar+ of ;ustice.
1o prevent a failure or dela+ of 6ustice, an+ testi!onial evidence presented before the Co!!ittee !a+ be
used in an+ proceedin or action before an+ court or tribunal, civil or !ilitar+, without need of presentin
the witness or witnesses who testified in case such witness or witnesses ha4e died or left the co&ntry or
5eco-e &na5le to testify.
6
1he chares aainst petitioner and his co*accused were thus brouht bac- to the stae of preli!inar+ investiation. )n
Auust $3, %&'$, respondent !ilitar+ co!!ission !et and ordered that the hearin of the cases be postponed indefinitel+
to await the outco!e of the re*investiation ordered under the said Ad!inistrative )rder.
1he "ecretaries of ;ustice and of National =efense desinated their representatives. 1he Chief ;ustice as-ed retired
;ustice ;. B. >. Re+es, but the latter on Auust $%, %&'$ declined the desination and also declined as 5BP president to
desinate a representative to the special co!!ittee, on rounds of illealit+ of the order. Petitioner li-ewise declined to
desinate his representative.
Petitioner filed on "epte!ber /, %&'$ his first supple!ental petition to include these develop!ents and to insist that he be
ranted his riht to preli!inar+ investiation as prescribed b+ statutor+ law, to be conducted b+ the court of first instance
as far as the four chares of subversion under R.A. %'33 are concerned. 8)n )ctober $%, %&'$, Presidential =ecree No.
$#C a!endin P.=. No. $& prescribin the rules of procedure for !ilitar+ tribunals under !artial law was issued, providin
for the perpetuation of testi!on+ in cases pendin before !ilitar+ tribunals.:
No action was ta-en b+ the Court on this supple!ental petition until ;ul+ %%, %&'4 when it issued a resolution re0uirin an
answer thereto which was filed b+ the "olicitor (eneral on Auust #%, %&'4. )n )ctober $%, %&'4, petitioner filed a
second supple!ental petition citin the President2s state!ents to the world press on April %/, %&'4 and Auust %&, %&'4
on the ?actual re!oval? of !artial law and that ?technicall+ and leall+, !artial law was lifted with the ratification of the
Constitution last +ear 8%&'$:.? 1he "olicitor (eneral filed his answer thereto on =ece!ber %%, %&'4.
Me!oranda were filed b+ petitioner2s counsel and b+ the "olicitor (eneral on March #%, %&'/ and March %%, %&'/,
respectivel+.
Meanwhile, on March %3, %&'/, respondent !ilitar+ co!!ission issued ex parte its order rantin the prosecution2s
!otion of March ', %&'/ ?to e7a!ine and ta-e the deposition of its witnesses? on March $%, and April % * 4, %&'/ until
ter!inated for perpetuation purposes on the bare alleation that ?81:he petitions of the accused Benino ". A0uino, ;r.
pendin in the "upre!e Court will ta-e ti!e to resolve resultin in the dela+ of the perpetuation of the testi!onies of the
prosecution witnesses....?
Petitioner2s counsel filed on March #4, %&'/ an urent !otion to restrain respondent !ilitar+ co!!ission fro! holdin the
perpetuation proceedins on the rounds a!on others that the ver+ issue of its 6urisdiction to ta-e coni,ance of civil
offenses alleedl+ co!!itted before !artial law b+ civilians li-e petitioner was pendin with this Court and that such
proceedins would ?short*circuit? the "pecial Reinvestiatin Co!!ittee created under Ad!inistrative )rder No. $// even
before such co!!ittee has co!!enced its dut+ to deter!ine the e7istence of ?reasonable round to believe that the
offenses chared were in fact co!!itted and the accused is probabl+ uilt+ thereof? and ?whether or not petitioner should
be held for trial.?
7
)n April %, %&'/, this Court, then co!posed of ten !e!bers issued its resolution that it lac-ed the ?necessar+ 0uoru! to
act on petitioner2s said urent !otion.
)n April ', %&'/, petitioner2s counsel filed an urent !anifestation averrin that this Court without a 0ualified 0uoru!
could issue the te!porar+ restrainin order pra+ed for so as not to render the case !oot and apprisin this Court that
after respondent !ilitar+ co!!ission had on April %, %&'/ held, consistentl+ with lago 4s. !eople
'
that the perpetuation
proceedins are not a part of the trial and ranted petitioner2s re0uest to be returned to his detention 0uarters, rulin that
he could refuse to be present at the proceedins since he had e7pressl+ waived his presence, as allowed in P.=. No. $#C,
it reversed itself at the !ilitar+ prosecutor2s instance on April 4, %&'/ and now ruled that the perpetuation proceedins are
part of the trial and that petitioner !ust be present at the proceedins 8which would ta-e two to three !onths accordin to
the !ilitar+ prosecutor2s !anifestation: and that petitioner !ust be ph+sicall+ present throuhout the proceedins even
aainst his will.
Petitioner2s counsel further !anifested that petitioner2s re0uest to respondent !ilitar+ co!!ission to suspend the
proceedins for seven da+s to allow his counsel ti!e and opportunit+ to see- appropriate relief fro! this Court was
su!!aril+ denied and petitioner then delivered his state!ent that if denied this ?last basic riht of a hu!an bein ... to be
let alone? he would have no alternative ?but to o on a huner stri-e, as a for! of silent protest aainst a procedure that is
intended to hu!iliate and dehu!ani,e !e.?
1he perpetuation of testi!on+ proceedins thus co!!enced on April 4, %&'/ and continued on succeedin da+s with the
!ilitar+ prosecutor presentin as the first state witness Ben6a!in M. Bie, ;r. alias .u- Co!!ander Melod+, and with
petitioner bein co!pelled to be present throuhout the proceedins. 1his witness, Bie toether with another listed
witness Ben6a!in "anu+o alias .u- Co!!ander Pusa were oriinall+ co*accused with petitioner in four subversion
chares but the chares aainst the! were withdrawn under a ?nolle prose0ui? order issued b+ the "ecretar+ of National
=efense dated March %/, %&'/.
)n April C, %&'/, the Court ordered the issuance of a te!porar+ restrainin order en6oinin respondent !ilitar+
co!!ission fro! further proceedin with the perpetuation proceedins until the !atter is heard and further orders and set
petitioner2s urent !otion and related incidents for hearin on April %4, %&'/. 5t was at this hearin that petitioner2s
counsel presented the si!ple !otion to withdraw the petition and all other pendin !otions in co!pliance with the
petitioner2s e7press wish. 5n co!pliance with the Court2s instruction at the hearin to in0uire into petitioner2s reasons for
his withdrawal !otion, his counsel on the ne7t da+, April %/, %&'/, filed their !anifestation sub!ittin therewith petitioner2s
9* pae letter of April %4, %&'/ addressed to his wife, !other, relatives and friends statin his reasons therefor and for
continuin the huner stri-e? 8he: bean ten da+s ao,? inter alia, that ?8he: felt that the case 8he: had filed since %&'$ in
the "upre!e Court had beco!e !eaninlessA that he has decided to ?place 8his: fate and 8his: life s0uarel+ in the hands
of ... Mr. MarcosA? that ?1he !eanin and thrust of 8his: absence or presence, in the proceedins before the !ilitar+
tribunal? and he has sole!nl+ vowed to continue his huner stri-e as a protest aainstB ?%. the trial of civilians before
!ilitar+ tribunals . .A #. the lac- of 6udicial independence . . for as lon as our 6udes re!ain casuals2. .A $. the absence of a
enuine free press ... A 8and: 4. the further continuance of !artial law and its evils and repressions....?
555. 1he transcendental character of the constitutional issues raised, dealin as the+ do with the individual2s funda!ental
liberties as uaranteed b+ the Bill of Rihts even in a state of !artial law which concededl+ is ?not a !ilitar+ ta-eover of
civil overn!ent functions? 9 and reconi,ed under the %&'$ Constitution to which all have pleded lo+alt+ and wherein
we are now called upon to dischare the 6udiciar+2s reat burden of definin its constitutional boundaries, co!pels !+
vote on the !erits which 5 cast for the rantin of the writ of prohibition pra+ed for aainst respondent !ilitar+ co!!ission
for the reasons and considerations which are hereinbelow respectfull+ sub!itted.
%. Civilians li-e petitioner placed on trial for civil offenses under eneral law are entitled to trial b+ 6udicial process, not b+
e7ecutive or !ilitar+ process. ;udicial power is vested b+ the Constitution e7clusivel+ in the "upre!e Court and in such
inferior courts as are dul+ established b+ law.
1(
;udicial power e7ists onl+ in the courts, which have ?e7clusive power to
hear and deter!ine those !atters which affect the life or libert+ or propert+ of a citi,en.?
11

Militar+ co!!ission or tribunals are ad!ittedl+ not courts and do not for! part of the 6udicial s+ste!. As further ad!itted
b+ the "olicitor (eneral in his answer
1!
, ?!ilitar+ co!!issions are authori,ed to e7ercise 6urisdiction over t2o classes of
offenses, whether co!!itted b+ ci4ilians or b+ -ilitary personnel either 8a: in the ene-y7s co&ntry d&ring its occ&pation b+
an ar!+ and while it re!ains under -ilitary go4ern-ent or 8b: in the localit+, not within the ene!+2s countr+, in which
-artial la2 has been established b+ co!petent authorit+. 1he classes of offenses are 8a: 4iolation of the la2s and
c&sto-s of 2ar and 8b: ci4il cri-es, which 5eca&se the ci4il co&rts are closed or their functions suspended or li!ited,
cannot be ta-en coni,ance of b+ the ordinar+ tribunals.?
"ince we are not ene!+*occupied territor+ nor are we under a !ilitar+ overn!ent and even on the pre!ise that !artial
law continues in force, the !ilitar+ tribunals cannot tr+ and e7ercise 6urisdiction over civilians for civil offenses co!!itted
b+ the! which are properl+ coni,able b+ the civil courts that have re!ained open and have been reularl+ functionin.
13
5n the leadin case of :&ncan 4s. 9ahana-o?&,
14
the @.". "upre!e Court held in settin aside the prison sentences
i!posed on two civilians b+ !ilitar+ tribunals that the placin of .awaii under !artial law 8after the ;apanese Pearl .arbor
attac- on =ece!ber ', %&4%: under the .awaiian )ranic Act
15
did not include the power on the part of the !ilitar+
overnor to supplant civilian laws b+ !ilitar+ orders and to supplant civil courts b+ !ilitar+ tribunals, where conditions were
not such as to prevent the enforce!ent of the laws b+ the courts.
1he late ;ustice Fran- Murph+ in his concurrin opinion therein repudiated the overn!ent2s appeal to abandon the ?open
courts? rule on the alleed round of its unsuitabilit+ to ?!odern warfare conditions where all the territories of a warrin
nation !a+ be in Co!bat ,ones or i!!inentl+ threatened with lon rane attac- even while civil courts are operatin? as
see-in ?to 6ustif+ !ilitar+ usurpation of civilian authorit+ to punish cri!e without reard to the potenc+ of the Bill of
Rihts,? and observin that ?Constitutional rihts are rooted deeper than the wishes and desires of the !ilitar+.?
And in Toth 4s. (&arles
16
the @.". "upre!e Court further stressed that ?the assertion of !ilitar+ authorit+ over civilians
cannot rest on the President2s power as Co!!ander*in*Chief or on an+ theor+ of !artial law.?
1hus, the President has filled up vacancies in the 6udiciar+ and ?alla+ed effectivel+ the fears e7pressed durin the initial
da+s of !artial law that the rule of the !ilitar+ would prevail because other countries under !artial law had dispensed with
civilian courts of 6ustice? and stressed the supre!ac+ of the Constitution at the $Cth anniversar+ rites of the AFP when he
told the Ar!ed Forces that ?1he !ilitar+ is the force that enforces the law, but the civil overn!ent is the rulin power in
our countr+,? and that ?we have stuc- to the Constitution. <e have pleded lo+alt+ to that Constitution.?
17

#. Even assu!in that !ilitar+ tribunals could validl+ e7ercise 6urisdiction over offenses alleedl+ co!!itted b+ civilians
not withstandin the absence of a state of war or bellierenc+ and the uni!paired functionin of the reular courts of
6ustice, such 6urisdiction could not enco!pass civil offenses 8defined b+ the eneral civil law as per the Revised Penal
Code and Republic Act %'33 -nown as the Anti*"ubversion Act: alleed to have been co!!itted b+ civilians li-e petitioner
in %&9/, %&9', %&9&, %&'3 and %&'%, lon 5efore the declaration of !artial law as of "epte!ber #%, %&'#.
1he @.". "upre!e Court aptl+ pointed out in Toth 4s. (&arles, s&pra in rulin that dischared ar!+ veterans 8esti!ated to
nu!ber !ore than ##./ !illion: could not be rendered ?helpless before so!e latter*da+ revival of old !ilitar+ chares?
1'
and sub6ected to !ilitar+ trials for offenses co!!itted while the+ were in the !ilitar+ service prior to their dischare, that
?the presidin officer at a court !artial is not a 6ude whose ob6ectivit+ and independence are protected b+ tenure and
undi!inished salar+ and nurtured b+ the 6udicial tradition, but is a !ilitar+ law officer. "ubstantiall+ different rules of
evidence and procedure appl+ in !ilitar+ trials. Apart fro! these differences, the suestion of the possibilit+ of influence
on the actions of the court*!artial b+ the officer who convenes it, selects its !e!bers and the counsel on both sides, and
who usuall+ has direct co!!and authorit+ over its !e!bers is a pervasive one in !ilitar+ law, despite strenuous efforts to
eli!inate the daner.?
1he late ;ustice Blac- spea-in for that Court added that ?8A: Court*Martial is not +et an independent instru!ent of 6ustice
but re!ains to a sinificant deree a speciali,ed part of the over*all !echanis! b+ which !ilitar+ discipline is preserved,?
and that e7*service!en should be iven ?the benefits of a civilian court trial when the+ are actuall+ civilians .... Free
countries of the world have tried to restrict !ilitar+ tribunals to the narrowest 6urisdiction dee!ed absolutel+ essential to
!aintainin discipline a!on troops in active service.?
More so then should !ilitar+ trials be not sanctioned for civil offenses alleedl+ co!!itted b+ civilians li-e petitioner lon
before the declaration of !artial law and for which the+ could have been chared then as well as now before the civil
courts which have alwa+s re!ained open and their process and functions unobstructed.
1he "olicitor (eneral2s contention that !ilitar+ tribunals have ?co!petence to tr+ civil cri!es relatin to the causes
6ustif+in the procla!ation of !artial law?
19
in a veiled reference to the subversion chares aainst petitioner does not
!eet the essential re0uire!ent of the e7istence of overpowerin necessit+ or e!erenc+ to 6ustif+ the trial of petitioner, a
civilian, for the said civil offenses b+ respondent !ilitar+ co!!ission.
)n the contrar+, the President2s issuance of Ad!inistrative )rder No. $// on Auust #C, %&'$ for the reinvestiation of the
chares aainst petitioner b+ a non*!ilitar+ special co!!ittee establishes per se that no serious rounds of overpowerin
necessit+ or considerations of national securit+ or e!erenc+ stand in the wa+ of reconi,in petitioner2s riht to a civilian
trial should the results of the civilian reinvestiation prove adverse to hi!.
As stated b+ the present ;ude Advocate (eneral in his treatise on !artial law, ?,ecessity li!its both the extent of powers
that !a+ be e7ercised under !artial law, and the d&ration of its e7ercise. No life !a+ be ta-en, no individual arrested or
confined, or held for trial, no propert+ destro+ed, or appropriated, no rihts of the individual !a+ be curtailed or suspended
e7cept where necessit+ 6ustifies such interference with the person or the propert+. An+ action on the part of the !ilitar+
that is not founded on the reasonable de!ands of necessit+ is a gross &s&rpation of po2er, illeal, un6ustified, and
i!proper. 1he broad !antle of !artial law cannot cover acts illeal because not 6ustified b+ necessit+, nor proper under
the circu!stances. 1his principle is based not onl+ upon the funda!ental precepts of constit&tionalis-, but rests on sound
reason K that where the action of the !atter is not necessar+ for the public ends of the state the+ are illeal, and the
-ere fact that -artial la2 exists will not be a round for their 6ustification.?
!(

$. Petitioner !a+ not be deprived of his constitutional riht to due process b+ !eans of the proceedins instituted aainst
hi! before respondent*!ilitar+ co!!ission, vi,B
8a: 1he su!!ar+ ex parte investiation b+ the chief prosecution staff of the ;A() of the chares filed aainst hi!
deprived hi! of his riht to be infor!ed of the chares aainst hi! and of his riht to counsel as e7pressl+ reconi,ed
now b+ section #3 of the Bill of Rihts of the %&'$ Constitution.
!1

8b: he would be deprived of his vested statutor+ riht to a preli!inar+ investiation of the subversion chares aainst hi!
before the proper court of first instance as re0uired under section / of the Anti*"ubversion Act, Republic Act %'33
!!
and of
the other chares aainst hi! before the proper civilian officials and to confront and cross*e7a!ine the witnesses aainst
hi! under Republic Act /%C3A 8at the least, the special reinvestiatin co!!ittee created under Ad!inistrative )rder No.
$// should be activated in order to dischare its assined tas- of conductin the preli!inar+ investiation and deter!inin
whether or not the petitioner should be held for trial:A 8c: he would be deprived of the riht to be tried b+ 6udicial process,
b+ the reular, independent courts of 6ustice, with all the specific constitutional, statutor+ and procedural safeuards
e!bodied in the 6udicial process and presided over not b+ !ilitar+ officers 8?trained and oriented alon strict rules of
discipline and riid countenance 8althouh: the+ are hu!an beins with hu!an hearts?
!3
who are not law+ers 8e7cept the
law !e!ber:, but b+ 6udes of at least ten +ears e7perience in the practice of law whose ob6ectivit+ and independence are
protected b+ tenure uaranteed b+ the Constitution and are nurtured b+ the 6udicial traditionA and
8d: .e would be deprived of the riht to appeal to the reular appellate courts and to 6udicial review b+ this Court, in the
event of conviction and i!position of a sentence of death or life i!prison!ent which the chares carr+.
!4
Article F, section
% of the %&'$ Constitution e7pressl+ provides that the National Asse!bl+ 8which is vested with the power to define,
prescribe and allocate the 6urisdiction of the various courts: !a+ not deprive this Court of its 6urisdiction over such serious
cases, a!on others. 1his Court in the e7ercise of such 6urisdiction has consistentl+ e7acted the cardinal rule that the
prosecution !ust prove the uilt of the accused be+ond a reasonable doubt and re0uired a 0ualified !a6orit+ of ten 8%3:
votes for affir!ance of the death penalt+ 8which re0uire!ent is of course not found in the Co!!ander*in*Chief2s review of
the decisions of !ilitar+ tribunals:.
For the !ilitar+ tribunal to tr+ petitioner under these circu!stances is to den+ petitioner due process of law as uaranteed
under section % of the Bill of Rihts as well as under section %' which further specificall+ ordains that ?No person shall be
held to answer for a cri!inal offense without due process of law.? 1he eli!ination b+ subse0uent decrees of his riht to
preli!inar+ investiation 8with riht of counsel and of cross*e7a!ination: of the subversion chares before the proper
court of first instance under Republic Act %'33 and of other rihts vested in hi! at the ti!e of the alleed co!!ission of
the offense which were all !eant to provide the accused with a!ple lawful protection in the enforce!ent of said Act, such
as the basic riht to be tried b+ 6udicial process and the riht of 6udicial review b+ this Court would further offend the
Constitutional in6unction aainst the enact!ent of ex post facto laws which would render it easier to convict an accused
than before the enact!ent of such law.
!5

<ith all such constitutional safeuards, the Court throuh Mr. ;ustice Castro in its decision in !eople 4s. Ferrer
!6
rendered
after the procla!ation of !artial law, nevertheless en6oined that ?even as we uphold the validit+ of the Anti*subversion Act,
we cannot overe!phasi,e the need for prudence and circu!spection in its enforce!ent, operatin as it does in the
sensitive area of freedo! of e7pression and belief,? and set specific basic uidelines to be observed in an+ prosecution
under the Act. .ence, the prohibition aainst ex post facto laws laws has been aptl+ described as ?a warnin aainst
leislative oppression or t+rann+? and a provision that ?would !ini!i,e if not eradicate the possibilit+ of the leislature
itself discreditin the state with its palpable disreard of a basic ob6ective, that 6ustice be dispensed with an even hand
throuh the dul+ established orans with a special fitness for the tas-.?
!7

Petitioner has thus cited the President2s announce!ent on =ece!ber %%, %&'4 that the persons chared with
assassination atte!pts aainst hi! will be tried before the civil courts althouh the chares were filed with the !ilitar+
tribunals
!'
and the President2s recent issuance on March 9, %&'/ of >etter of 5nstruction No. ##/ creatin a special five*
!e!ber panel to conduct an investiation to re*evaluate the evidence aainst the therein accused and to deter!ine
whether an offense has been co!!itted and whether the+ are probabl+ uilt+ thereof and if probable cause is found, to
file the appropriate chares.
!9

4. Petitioner2s plea that his trial b+ a !ilitar+ tribunal created b+ the President and co!posed of the President2s own
!ilitar+ subordinates without tenure and of non*law+ers 8e7cept the law !e!ber: and of whose decision the President is
the final reviewin authorit+ as Co!!ander*in*Chief of the Ar!ed Forces deprives hi! of a basic constitutional riht to be
heard b+ a fair and i!partial tribunal, considerin that the President has publicl+ declared the evidence aainst petitioner
?not onl+ stron 8but: overwhel!in? and in petitioner2s view thereb+ pre6uded and predeter!ined his uilt !erits
consideration.
5n petitioner2s view, he has been publicl+ indicted and his uilt pre6uded b+ the President when in a nation*wide press
conference on Auust #4, %&'% followin the Pla,a Miranda bo!bin three da+s earlier of the >iberal Part+ procla!ation
!eetin, the President chared hi! and disclosed evidence in the possession of the overn!ent lin-in petitioner to
so!e illeal and subversive activities, in %&9/*%&'%, which are virtuall+ the sa!e chares now filed aainst hi! before
respondent !ilitar+ co!!ission, and declared the evidence aainst petitioner ?not onl+ stron 8but: overwhel!in.? 1he
President e7plained on the sa!e occasion that in not actin aainst petitioner, he had ?erred on the side of enerosit+ as
well as of liberalit+ hopin that ood sense !a+ so!eda+ catch up with hi!? since petitioner was ?the onl+ opposition
senator left in the "enate? after the bo!bin, but that he did not -now ?what will happen later on, because, of course, the
!ilitar+ insist that we !ust not !a-e an+ e7ceptions to the eneral rule.?
3(

<hile one !a+ aree that the President as Co!!ander*in*Chief would dischare his dut+ as the final reviewin authorit+
with fealt+ to his oath ?to do 6ustice to ever+ !an,? particularl+ because of his renowned leal saacit+ and e7perience, still
under the environ!ental facts where the !ilitar+ appears to have been i!pressed b+ the President2s appraisal of the
evidence and without castin an+ reflection on the interit+ of the !e!bers of respondent !ilitar+ co!!ission which
petitioner hi!self ac-nowledes, the doctrine consistentl+ held b+ the Court that ?ele!entar+ due process re0uires a
hearin before an i!partial and disinterested tribunal?
31
arid that ?All suitors ... are entitled to nothin short of the cold
neutralit+ of an independent, wholl+ free, disinterested and i!partial
tribunal?
3!
calls for application in the present case.
1his Court in all its 6urisprudence on dis0ualification and inhibition of 6udes has invariabl+ cited as ?a salutar+ nor! ... that
he 8the 6ude: reflect on the probabilit+ that a losin part+ !iht nurture at the bac- of his !ind the thouht that the 6ude
had un!eritoriousl+ tilted the scales of 6ustice aainst hi!? and applied the +ardstic- that when the basis has been laid for
?the possibilit+ of a trial*bein tainted b+ partialit+, this Court can step in to assure respect for the de!ands of due
process? which it has e7tended pri!aril+ for the peace of !ind and protection of the accused.
33

Respondents2 citin of +a-ashita 4s. Styer
34
as 6ustif+in the prosecution and trial of civilians b+ !ilitar+ co!!issions is in
error as that case involved the ?trial and punish!ent of war cri!inals 8which: is an aspect of wain war.? Neither is the
creation of the People2s Court after the last war to tr+ those chared with treason in point, for said court as well as si!ilar
courts li-e the Circuit Cri!inal Courts which were created b+ Conress pursuant to its authorit+ under the Constitution and
vested with special 6urisdiction over certain cri!es, were created as C&dicial courts and part of the 6udicial s+ste! whose
decisions were and are sub6ect to review b+ the appellate courts, unli-e !ilitar+ co!!issions.
/. Prescindin fro! the issue of respondent !ilitar+ co!!ission2s lac- of 6urisdiction over the chares aainst the
petitioner, the e7a!ination of the prosecution witnesses and the perpetuation of their testi!on+ should properl+ be held
before the "pecial Reinvestiatin Co!!ittee created under Ad!inistrative )rder No. $// for the si!ple reason that all
proceedins before respondent !ilitar+ co!!ission were dee!ed suspended b+ virtue of the reinvestiation ordered b+
the President to deter!ine whether there ?reall+ is reasonable round? to hold petitioner for trial and the perpetuation of
testi!on+ iven before the said Co!!ittee is e7pressl+ provided for in the Ad!inistrative )rder.
5t was precisel+ ?to reassure the 8petitioner: that he continues to en6o+ his constitutional riht to due process? and ?to
insure ut!ost fairness, i!partialit+ and ob6ectivit+? and ?to deter!ine whether realit+ there is reasonable round to believe
that the offenses chared were in fact co!!itted and the 8petitioner: is probabl+ uilt+ thereof2 that the President created
under Ad!. )rder No. $// on Auust #C, %&'$ a special five* !e!ber co!!ittee ?to conduct the preli!inar+
investiation? of the chares aainst petitioner.
5t !a+ be seen fro! the above*stated pre!ises and ob6ectives that the ad!inistrative order was issued b+ the President
pursuant to his ?orientation towards the protection of the Bill of Rihts 8and: the 6udicial process.? As the President hi!self
declared in the sa!e nationwide press conference of Auust #4, %&'%B t.ñ./0h123/
5 a! a law+er, !+ trainin is oriented towards the protection of the Bill of Rihts, because if +ou will
re!e!ber, 5 have repeatedl+ said, that if it were not for the Bill of Rihts 5 would not be here now. 5f it
were not for the 6udicial process, 5 would not be President of the Republic of the Philippines....
35

5n petitioner2s urent !otion of March #4, %&'/ for a restrainin order aainst the holdin of perpetuation of testi!on+
proceedins before respondent !ilitar+ co!!ission, he precisel+ co!plained that such proceedins would pree!pt and
render !oot the pre6udicial 0uestion raised b+ hi! in the case at bar challenin the co!!ission2s 6urisdiction to ta-e
coni,ance of the chares aainst hi! and would ?short*circuit? the reinvestiation ordered b+ the President under Ad!.
)rder No. $// ?even before the said co!!ittee has perfor!ed its dut+ to deter!ine whether or not petitioner should be
held for trial? and notwithstandin that ?there is no indication co!in fro! the President of the Philippines that it has
outlived its usefulness K functus oficio K or that it is not fit to ad!inister 6ustice to the petitioner.?
36

<hile petitioner insisted on his riht to a preli!inar+ investiation of the subversion chares b+ the court of first instance
as prescribed b+ Republic Act %'33, he nevertheless propounded in his March #%, %&'/ !e!orandu! that retired ;ustice
;. B. >. Re+es2 havin declined to act as chair!an of the co!!ittee and to desinate a representative of the 5nterated
Bar did not !ean that the co!!ittee ?cannot be !ade to function 8since: in the absence of 6udicial writ or process, there is
nothin to prevent the desination of another retired 6ustice of the "upre!e Court as chair!an, and nothin to prevent the
inco!in president of the 5nterated Bar to desinate a representative to the co!!ittee.?
37
As to petitioner2s havin
declined to desinate his representative, it has alread+ been pointed out, s&pra,
3'
that the said order e7pressl+ provides
that in such event ?the Chief ;ustice shall desinate so!eone in his stead ?
5t is evident then that under the said order, the Chief ;ustice was called upon to fill at least the two vacancies b+ !a-in
the substitute desinations as therein provided, which would have enabled the co!!ittee to dischare its function with a
co!position of four !e!bers 8while awaitin the desination of the fifth !e!ber b+ the 5BP president: but that he
refrained fro! doin so as the !atter was s&5 C&dice because of the pendenc+ of the supple!ental petition at bar
0uestionin the validit+ of the order on the round that it deprived petitioner of his riht to investiation b+ the court of first
instance on the principal chares of subversion.
<ith the Court2s dis!issal of the petitions 8and petitioner2s withdrawal thereof: nothin stands in the wa+ now of activatin
the said "pecial Reinvestiatin Co!!ittee and its discharin its assined tas- of ?conductin the preli!inar+
investiation? and deter!inin whether petitioner should be held for trial in i!ple!entation of the order2s e7press
ob6ectives of reassurin petitioner of ?his constitutional riht to due process? and ?insurin ut!ost fairness, i!partialit+ and
ob6ectivit+ in the prosecution of the chares aainst 8petitioner:.?
"uch preli!inar+ investiation b+ the "pecial Reinvestiatin Co!!ittee with its diverse !e!bership and e!phasis that
those desinated !ust !eet the 0ualifications of bein ?learned in the law, reputed for probit+, interit+, i!partialit+,
incorruptibilit+ and fairness and !ust have had no previous connection in this !atter either as counsel or investiator? is
certainl+ far !ore desirable than the present situation where such rave chares were su!!aril+ filed with the !ilitar+
co!!ission aainst petitioner without his havin been previousl+ infor!ed of the chares aainst hi! nor iven the
benefit of an+ preli!inar+ investiation.
(oin b+ the ver+ standards of ?ut!ost fairness, i!partialit+ and ob6ectivit+? set b+ the President in the Ad!inistrative
)rder, and prescindin fro! the unsettled 0uestion of whether petitioner would have throuh counsel the riht of cross*
e7a!ination of the witnesses presented aainst hi!, it will be readil+ appreciated that in such preli!inar+ investiation b+
a non*!ilitar+ special co!!ittee wholl+ co!posed of civilians, petitioner !a+ then fairl+ and properl+ be represented b+
e7perienced counsel who can co!petentl+ handle his defense and at least present ti!el+ ob6ections to the ad!ission of
inco!petent or inad!issible evidence, not to !ention that the five !en ?learned in the law? co!posin the co!!ittee
would !ost li-el+ -ot& propio rule out an+ such inad!issible evidence. 1his would be in contrast to the perpetuation
proceedins in the !ilitar+ tribunal where petitioner has dischared all his counsels, civilian and !ilitar+, because of the
lac- of 6urisdiction, in his view, 8as well as per this opinion: of the !ilitar+ co!!ission over civilians li-e hi! for alleed
pre*!artial law civil offenses and the nullit+ of the proceedins therein and thus has been deprived, althouh b+ his own
act, of indispensable leal representation and assistance in the proceedins where his ver+ life, libert+ and honor are at
sta-e.
1he ob6ective of the perpetuation proceedins !a+ properl+ be achieved b+ the "pecial Reinvestiatin Co!!ittee before
who! the testi!onial evidence souht to be perpetuated should be presented in the dischare of its assined tas- to
conduct a preli!inar+ investiation to deter!ine whether or not the chares aainst petitioner should stand and petitioner
!ade to face trial. .oldin the perpetuation proceedins before the co!!ittee would dispose of the leal re0uire!ents
under P.=. No. $#C itself that the proceedins be had before a !ilitar+ tribunal with 6urisdiction and ?before which a case is
pendin.? Even thouh technicall+, as contended b+ respondents, the cases are still pendin with the !ilitar+ tribunal, it
see!s obvious fro! the ver+ ter!s of Ad!inistrative )rder No. $// that the chares are in fact dee!ed withdrawn fro!
the !ilitar+ tribunal and the latter cannot hold an+ proceedins for as lon as the co!!ittee has not co!pleted its
preli!inar+ investiation and deter!ined thereafter the e7istence of a pri-a facie case sufficient to let the chares re!ain
and to re0uire petitioner to face trial. 1he Ad!inistrative )rder thus e7pressl+ provides for the perpetuation of ?an+
testi!onial evidence presented before the Co!!ittee? and for its use in an+ proceedin? before an+ court or tribunal, ci4il
or -ilitary, without need of presentin the witness or witnesses who testified in case such witness or witnesses have died
or left the co&ntry or 5eco-e &na5le to testify.?
3'
0
9. Assu!in nevertheless that the perpetuation of testi!on+ proceedins could be properl+ conducted before respondent
!ilitar+ co!!ission, petitioner2s ph+sical presence at the proceedins could not be co!pelled b+ virtue of his e7press
waiver thereof as e7plicitl+ allowed b+ the Constitution and b+ P.=. No. $#C itself.
)n April %, %&'/, respondent !ilitar+ co!!ission had reconi,ed petitioner2s riht to waive his presence at the
proceedins and ranted his re0uest to be returned to his detention 0uarters. But on April 4, %&'/, it reversed itself at the
!ilitar+ prosecutor2s instance and ruled instead that petitioner2s presence at ever+ stae of the proceedin is
indispensable on the round, as stated b+ the "olicitor (eneral, that ?the chares aainst petitioner involve capital
offenses and petitioner is in custod+ and petitioner had clai!ed in this case that proceedins for the perpetuation of
testi!on+ were actuall+ a part of
trial.?
39
Petitioner2s sub!ittal that he cannot be co!pelled to be present at the proceedins even aainst his will b+ virtue
of his e7press waiver is !eritorious. <hereas previousl+ such riht of waiver of the accused2s presence in cri!inal
proceedins was enerall+ reconi,ed
4(
save in capital cases
4
1 leadin to the suspension of trial whenever the accused
was at lare: or where the accused was in custod+ althouh for a non*capital offense, the %&'$ Constitution now
un0ualifiedl+ per!its trial in a5sentia even of capital cases, and provides that ?after arrain!ent, trial !a+ proceed
notwithstandin the absence of the accused provided that he has been dul+ notified and his failure to appear is
un6ustified,?
4!
thus reconi,in the riht of an accused to waive his presence. P.=. No. $#C under which the perpetuation
proceedins are bein conducted in !ilitar+ co!!issions 8as the counterpart rule for si!ilar proceedins before the
reular civil courts, as provided in Rule %%&, section ' of the Rules of Court: e7plicitl+ provides that after reasonable notice
to an accused to attend the perpetuation proceedins, the deposition b+ 0uestion and answer of the witness !a+ proceed
in the accused2s absence and the failure or refusal to attend the e7a!ination or the ta-in of the deposition shall be
considered a waiver.?
43
1hus, an accused2s riht of total waiver of his presence either e7pressl+ or i!pliedl+ b+ un6ustified
failure or refusal to attend the proceedins is now e7plicitl+ reconi,ed and he cannot be co!pelled to be present as
aainst his e7press waiver.
Even as a!on the !e!bers of the Court who voted as per the April #/, %&'/ resolution in favor of 0ualified waiver, i.e.
that the accused2s presence could be re0uired in the instances where his presence is needed for his identification b+ the
prosecution witness, the view was e7pressed that such presence could be dispensed with if his waiver e7pressl+ included
an ad!ission of his identification b+ na!e b+ the witnesses*deponents. 5t should be noted that such an additional
re0uire!ent would be superfluous because of the total waiver as well as because of the disputable presu!ption
44
established b+ the rule of evidence of ?identit+ of person fro! identit+ of na!e?
45
, aside fro! the !an+ pro!inent public
positions occupied b+ petitioner throuh which his identification is !ade b+ the prosecution witnesses as noted fro! their
affidavits as sub!itted b+ the "olicitor*(eneral.
'. Petitioner2s ob6ection to the perpetuation proceedins, particularl+ if the+ were to be considered part of the trial, since
the ver+ 0uestion at issue in the case at bar on !ilitar+ co!!issions2 lac- of 6urisdiction over pre*!artial law civil offenses
alleedl+ co!!itted b+ civilians li-e petitioner would be pree!pted and rendered !oot b+ the proceedins should have
been iven due consideration b+ said co!!ission, instead of bein used b+ it to re0uire his presence aainst his will.
5t should be noted that the "olicitor (eneral2s second round for 6ustif+in respondent co!!ission2s reversal order
re0uirin petitioner2s presence was that ?petitioner had clai!ed in this case that proceedins for the perpetuation of
testi!on+ were actuall+ a part of trial?, without however statin respondents2 own stand.
1he prevailin doctrine, as enunciated b+ the Court in !eople 4s. lago
46
appears 0uite clear that ?5t is not a trial where
the defendant has to introduce his evidence. 5t is onl+ ta-in down the state!ents of the witnesses for the prosecution
with opportunit+ on the part of the defendant to cross*e7a!ine the!.?
47
1he Court, citin Rule %%% 8e: of the %&43 Rules of
Court 8now reproduced in Rule %%/ 8f: of the Revised Rules of Court:
4'
and the reat weiht of 6udicial authorities aainst
the ad!ission of a deposition or previous testi!on+ of a witness who is present in court or is available at the actual trial,
set aside the appellate court2s decision affir!in conviction therein and ruled that the trial court and the appellate court
?co!!itted reversible error? in ad!ittin the perpetuated testi!onies or depositions of the two A!erican prosecution
witnesses when the+ were actuall+ present in court at the ti!e of trial.
1he Court thus held thatB t.ñ./0h123/
5t is clear fro! the rule ... that the testi!on+ or deposition of a witness !a+ be read or sub!itted in
evidence only when the deponent is dead or incapacitated to testif+ or cannot 5e fo&nd in the Philippines.
5f he was present in court, there is no need for introducin his deposition in evidence because his
testi-ony is the 5est e4idence especiall+ in a case li-e the present where the deponent in ivin his
deposition had not 5een cross#exa-ined b+ the defendant, althouh of course, said failure to cross
e7a!ine !a+ not be laid at the door of the prosecution.
49

1he !ost that can be said then is that the perpetuation proceedins !a+ be conditionally considered part of the trial only
when the deponent*witness is at the ti!e of trial dead or incapacitated to testif+ or cannot with due dilience be found in
the Philippines. Absent an+ of these conditions, it is not a part of the trial and the witnesses !ust ive their testi!on+
ane2 8not their previous or perpetuated deposition: as the best evidence sub6ect to the crucible of cross*e7a!ination.
.ence, petitioner had cause to co!plain aainst the !ilitar+ prosecutor2s a!bivalent posture that ?5n the first da+ he
arued we !ust proceed 8notwithstandin the pendenc+ before this Court of the petition 0uestionin the co!!ission2s
lac- of 6urisdiction: because this is not part of the trial. Now, the rulin adversel+ was handed down 8allowin petitioner2s
waiver of his presence:, but this is a part of the trial, he
sa+s.?
5(
C. <ithal, these 0uestions presented serious, if not difficult, 0uestions of law, and particularl+, the petitioner2s riht to totall+
waive his presence at the proceedins presented an i!portant new 0uestion that re0uired an authoritative rulin fro! this
Court because of the new provisions of the %&'$ Constitution involved.
1he rantin of petitioner2s urent pleas on April 4, %&'/ to be iven a period of at !ost seven da+s to file a written !otion
for reconsideration of the co!!ission2s reversal order of the sa!e date re0uirin his presence at ever+ stae of the
proceedins 8esti!ated to last fro! two to three !onths, accordin to the !ilitar+ prosecutor
51
: and to see- relief fro! this
Court, instead of +ieldin to the stubborn insistence of the !ilitar+ prosecutor that the perpetuation be ?done i!!ediatel+?
on the ratuituous assertion that ?precisel+ because if the round is dela+, the witnesses whose testi!onies are souht to
be presented would have been lon dead if perpetuation is held up?
5!
and su!!aril+ den+in petitioner2s ?repeated
appeals . . as fast as the+ were presented? as raphicall+ reported b+ the press
53
would have averted trierin off the
huner stri-e co!!enced on the sa!e date b+ petitioner who felt that he was un6ustl+ denied his riht of waiver and the
?last basic riht of a hu!an bein . . to be left alone.?
"uch an urent serious plea to be iven a reasonable ti!e and opportunit+ to see- recourse fro! this Court would have
been readil+ acceded to b+ a reular court in line with established 6udicial usae and procedure. 1he "olicitor (eneral2s
repl+ of April %%, %&'/ after this Court2s issuance of the restrainin order of April C, %&'/ suspendin further proceedins
b+ the co!!ission*in contrast to the !ilitar+ prosecutor2s un+ieldin stand inconruousl+ brandin the filin with this Court
of the petition at bar and of the supple!ental petitions as ?dela+in tactics? and ?dilator+ !oves?
54
K e7pressl+
?welco!e8d: an+ rulin b+ this Court whether under Presidential =ecree No. $#C the presence of the accused is
necessar+ or indispensable.? 1he decision of this Court upholdin petitioner2s riht of waiver vindicates petitioner2s
assertion before respondent !ilitar+ co!!ission of his riht ?to -eep silent ... to sta+ alone ... not to participate. .?
55
2 a
riht which is his to e7ercise or not.
&. Respondents have utterl+ failed to show the e7istence of ?public daner 8that: warrants the substitution of e7ecutive
process for the 6udicial process? and the settin aside of the constitutional !andate that lodes 6udicial power in the
reular courts of law and not in !ilitar+ tribunals and uarantees civilians the benefits of a civilian court trial. 1o sub6ect
civilians to !ilitar+ trial 6ust li-e !ilitar+ personnel and troops and ene!+ bellierents rather than to civilian trial b+ the
reular civil courts is to neate the cardinal principle and state polic+ of supre!ac+ at all ti!es of civilian authorit+ over the
!ilitar+.
55
0
5n see-in to 6ustif+ the substitution of the e7ecutive or !ilitar+ process b+ !ilitar+ co!!issions for the 6udicial process of
preli!inar+ investiation and trial b+ the reular civil courts with riht of appeal to the "upre!e Court invo-ed b+ petitioner
as his constitutional riht, the "olicitor (eneral in his !e!orandu! has !ade a nu!ber of bare assertions without even
an+ factual aver!ents or alleations in support thereof, as followsBt.ñ./0h123/
5ndeed, civil courts !a+ be open and undisturbed in the e7ecution of their functions and +et !a+ be
wholl+ inco!petent to avert a threatened daner, or to punish, with ade0uate pro!ptitude and certaint+,
the uilt+ conspirators. 5n ti!es of rebellion it !a+ often happen that the 6udes are in active s+!path+
with the rebels, and courts their !ost efficient allies. 8E7 parte Millian, 4 <all. %C>. Ed. #C%, #&& HChase,
C.;., concurrin.I:
1here !a+ be other reasons 6ustif+in the creation of !ilitar+ tribunals. ;udes !a+ be unwillin to tr+ the
rebels out of fear or other !otives.
777 777 777
5n our case, stud+ shows that Co!!unist subversion and propaanda ai! at the paral+,ation of the will
and the terroris! of the population and the overn!ent functionar+. 5n !an+ parts of the countr+ the
rebels succeeded in inti!idatin and silencin not onl+ the offended parties and their witnesses but even
the 6udes.
777 777 777
"till another reason for trial b+ !ilitar+ tribunals is the possibilit+ that the accused !a+ e7ploit procedural
advantaes available in the civil courts and render !ilitar+ operations aainst the rebellion difficult. 8Citin
a <est Girinia case 8%&#%: where the court therein reasoned that ?Participants 8in an insurrection:
arrested and co!!itted to the ci4il a&thorities could easil+ find !eans of dela+in trial, and li5erated on
5ail return to the insurrectionar+ ca!p and continue to render aid 8and: the civil tribunals... are wholl+
inade0uate to the exigencies of a state of 2ar, incident to an in4asion or ins&rrection.?:
56

1hese reflections on the co!petence of the civil courts find no 6ustification in the facts of public notice and -nowlede, to
witB
A nu!ber of 6udes of courts of first instance have been re!oved with the acceptance of their resinations but there is not
a sinle recorded case where the ?6udes 8were: in active s+!path+ with the rebels, and courts their !ost efficient allies?A
1here is not a sinle -nown case since the !artial law procla!ation of ?6udes 8bein: unwillin to tr+ the rebels out of
fear or other !otives? or of the 6udes, co!plainants and witnesses havin been inti!idated and silenced b+ rebelsA
Neither is there a sinle -nown instance of an accused rebel havin ?e7ploited procedural advantaes available in the civil
courts and renderin !ilitar+ operations aainst the rebellion difficult since those suspected of participation or conspirac+
in the co!!unist rebellion have been arrested without riht to bailA (eneral )rder No. 4& issued b+ the President on
)ctober 4, %&'4 restored to the civil courts a lare nu!ber of cri!inal cases that were transferred to !ilitar+ tribunals
upon the procla!ation of !artial law on the e7press pre!ises that ?positive steps have been ta-en to revitali,e the
ad!inistration of 6ustice and the new Constitution authori,es the reorani,ation of the courts? and ?althouh there still
e7ist areas of active rebellion in the countr+, on the whole there has been such an i!prove!ent in the eneral conditions
obtainin in the countr+ and in the ad!inistration of 6ustice as to warrant the return of so!e of the cri!inal cases to the
6urisdiction of civil courts?A and
1hese pre!ises of (.). No. 4& are borne out b+ the data and published reports. 1he twent+ 8#3: !ilitar+ co!!issions 8%4
a!bulator+ and 9 reional co!!issions:
57
hearin cases fro! ti!e to ti!e in !arathon hearins as the pressures of the
!ilitar+ service allow the !ilitar+ co!!issions to convene could not conceivabl+ !atch the wor- and cases disposition of
around three hundred and twent+ 8$#3: courts of first instance and circuit cri!inal courts all over the countr+ wor-in
continuousl+ and reularl+ throuhout the +ear.
1he aru!ent of procedural dela+s in the civil courts and need of pro!pt and certain punish!ent has been lon cut down
b+ the late ;ustice Fran- Murph+ in his concurrin opinion in :&ncan
5'
when he stressed that ?civil liberties and !ilitar+
e7pedienc+ are often irreconcilable and that ?the swift trial and punish!ent which the !ilitar+ desires is precisel+ what the
Bill of Rihts outlaws. <e would be false to our trust if we allowed the ti!e it ta-es to ive effect to constitutional rihts to
be used as the ver+ reason for ta-in awa+ those constitutional rihts,? as followsB t.ñ./0h123/
=ela+s in the civil courts and slowness in their procedure are also cited as an e7cuse for shearin awa+
their cri!inal 6urisdiction, althouh lac- of -nowlede of an+ undue dela+s in the .awaiian courts is
ad!itted. 5t is said that the !ilitar+ 2cannot broo- a dela+2 and that 2the punish!ent !ust be swiftA there is
an ele!ent of ti!e in it, and we cannot afford to let the trial liner and be protracted.2 1his !ilitar+ attitude
toward constitutional processes is not novel. Civil liberties and !ilitar+ e7pedienc+ are often
irreconcilable. 5t does ta-e ti!e to secure a rand 6ur+ indict!ent, to allow the accused to procure and
confer with counsel, to per!it the preparation of a defense, to for! a petit 6ur+, to respect the ele!entar+
rules of procedure and evidence and to 6ude uilt or innocence accordin to accepted rules of law. But
e7perience has de!onstrated that such ti!e is well spent. 5t is the onl+ !ethod we have of insurin the
protection of constitutional rihts and of uardin aainst oppression, 1he swift trial and punish!ent
which the !ilitar+ desires is precisel+ what the Bill of Rihts outlaws. <e would be false to our trust if we
allowed the ti!e it ta-es to ive effect to constitutional rihts to be used as the ver+ reason for ta-in
awa+ those rihts. 5t is our dut+, as well as that of the !ilitar+, to !a-e sure that such rihts are respected
whenever possible, even thouh ti!e !a+ be consu!ed.
As alread+ indicated above, it should be noted that no actual case of undue dela+s in the prosecution of cri!inal cases in
the reular civil courts has been clai!ed b+ respondents, nor has it been shown that !ilitar+ necessit+ or public daner
re0uire that petitioner be deprived of his rihts to due process and to the cold neutralit+ of an i!partial tribunal under the
6udicial process, should the reinvestiation ordered b+ the President bind hi! over for trial.
%3. 1he "olicitor*(eneral2s sub!ittal that ?the decrees and orders relatin to !ilitar+ co!!issions are now part of the law
of the land and are be+ond 0uestion? and that ?as the trial and punish!ent of civilians b+ !ilitar+ tribunals under the
circu!stances ... are valid and constitutional, ob6ections based on differences between civil and !ilitar+ courts are
i!!aterial? is constitutionall+ infir! and untenable.
1he "olicitor*(eneral2s pre!ise is that ?with the ratification of the new Constitution !artial law as proclai!ed b+ the
President beca!e part of the law of the land and now derives its validit+ fro! the new constitution?
59
and that b+ virtue of
section $ 8#: of the 1ransitor+ Provisions
6(
the decrees and orders on the !ilitar+ co!!issions are now also part of the
law of the land and be+ond 0uestion states a rather proli7 and sweepin concept that cannot be precipitatel+ sanctioned.
Martial law has not beco!e part of the law of the land and be+ond 0uestion b+ virtue of the co!in into force of the %&'$
Constitution. 5n fact, the said Constitution has precisel+ reproduced the %&$/ Constitution2s co!!ander* in*chief clause
with power to declare !artial law li!ited to e7actl+ the sa!e causes of invasion, insurrection or rebellion or i!!inent
daner and with e7actl+ the sa!e re0uire!ent that the public safet+ re0uire it.
61
(oin b+ the doctrine enunciated in
*ansang 4s. Garcia
6!
b+ a unani!ous Court, the e7istence of factual bases for the procla!ation and continuation of
!artial law !a+ under the said provision be 6udiciall+ in0uired into in order to deter!ine the constitutional sufficienc+
thereof as well as to circu!scribe the constraints thereof, in particular cases where the+ clash with an individual2s
constitutional rihts, within the bounds of necessit+ for the public ends and the public safet+, as indeed this Court did pass
on such 0uestions in the .abeas Corpus cases.
63
And as the President e7pressl+ stated at his world*wide satellite press
conference of "epte!ber $3, %&'4, the duration of !artial law is ?onl+ as lon as necessar+? as per the followin pertinent
e7cerpt of his state!ent thereonB t.ñ./0h123/
)f course the proble! here is, if +ou sa+ that !artial law leads to de!ocrac+, how lon are +ou oin to
!aintain !artial lawN 5 sa+ aain that onl+ as lon as necessar+. As the constitutionalists put it, necessit+
ave life to !artial law and !artial law cannot continue unless necessit+ allows it to live .
64

1he cited 1ransitor+ Provision, -nown as the validatin provision puts the i!pri!atur of a law upon the President2s acts
and decrees under !artial law which were not within or be+ond his allocated constitutional powers. As aptl+ stated b+
;ustice MuEo, Pal!a in her separate opinion in the .abeas Corpus cases, the people could not b+ the %&'$ Constitution
have thrown awa+ ?all their precious liberties, the sacred institutions enshrined in their Constitution, for that would be the
result if we sa+ that the people have sta!ped their approval on all the acts of the President e7ecuted after the
procla!ation of !artial law irrespective of an+ taint of in6ustice, arbitrariness, oppression, or culpable violation of the
Constitution that !a+ characteri,e such acts. "urel+, the people actin throuh their constitutional deleates could not
have written a funda!ental law which uarantees their rihts to life, libert+ and propert+, and at the sa!e ti!e in the sa!e
instru!ent provide for a weapon that could spell death to these rihts.?
1he contention that the decrees and orders on !ilitar+ co!!issions as ?part of the law of the land are be+ond 0uestion?
reall+ bes the 0uestion, for as was stressed b+ ;ustice MuEo, Pal!a, it would be ?inconruous? that while the acts of the
reular National Asse!bl+ as the ?per!anent repositor+ of leislative power? are sub6ect to 6udicial review, ?the acts of its
te!porar+ substitute, that is, the incu!bent President, such as the decrees and orders in 0uestion would be clai!ed to be
?be+ond 0uestion.?
5ndeed, the !a6orit+ resolution reconi,es that ?)f course, fro! the fact that the President has this rane of discretion, it
does not necessaril+ follow that ever+ action he !a+ ta-e, no !atter how un6ustified b+ the e7ienc+, would bear the
i!pri!atur of validit+.?
<hile the decrees and orders on !ilitar+ tribunals were !ade part of the law of the land b+ the cited 1ransitor+ Provision
8assu!in that the+ had been properl+ sub!itted for the purpose: still this eneral and transitor+ provision can in no wa+
supersede or nullif+ the specific allocation of 6urisdiction and 6udicial power to the "upre!e Court and the reular courts of
6ustice as established b+ law under Article F section % of the Constitution nor their proper e7ercise of 6urisdiction to the
e7clusion of non*6udicial aencies, under section C of Article FG55 which provides thatB t.ñ./0h123/
"EC. C. All courts e7istin at the ti!e of the ratification of this Constitution shall continue and e7ercise
their C&risdiction, &ntil other2ise pro4ided 5y la2 in accordance with this Constitution, and all cases
pendin in said courts shall be heard, tried, and deter!ined &nder the la2s then in force. 1he provisions
of the e7istin Rules of Court not inconsistent with this Constitution shall re-ain operati4e unless
a!ended, !odified, or repealed b+ the "upre!e Court or the National Asse!bl+. 8Art. FG55:
5nsofar as the 0uestioned decrees and orders encroached upon the 6urisdiction of the reular courts over the trial of
civilians, the+ !ust be dee!ed abroated b+ the cited provisions of the Constitution itself, in accordance with the
established rule that statutes as well as e7ecutive orders and reulations that are inconsistent with and transress the
provisions of a new Constitution !ust be dee!ed repealed thereb+.
As noted in the writer2s previous opinions,
65
the specific leislative powers ranted the incu!bent President in section $
8#: of the article on 1ransitor+ Provisions are li!ited to ?!odif+in, revo-in or supersedin the incu!bent President2s
validated acts and decrees done or issued prior to the proclai!ed ratification on ;anuar+ %', %&'$ of the %&'$
Constitution. No post*ratification leislative powers are therein ranted the incu!bent President and such leislative
power or !ore accuratel+ !ilitar+ power under !artial rule that has been e7ercised b+ hi! thereafter 8in the absence of a
parlia!ent: !ust rest on the law of necessit+ of preservation of the "tate and the decreein of such necessar+ !easures
as will safeuard the Republic and suppress the rebellion 8or invasion:. )n the other hand, section ' of the sa!e Article
e7pressl+ reserves to the National Asse!bl+ the power to a!end, !odif+ or repeal ?all e7istin laws not inconsistent with
this Constitution 8which: shall re!ain operative.? A!on such e7istin laws whose ?a!end!ent, !odification or repeal are
reserved to the National Asse!bl+ are the laws herein involved, vi,, the Anti*"ubversion Act, Republic Act No. %'33 and
the e7istin Rules of Court
66
with their safeuards for the rihts of an accused defendant. At an+ rate, an+ such
presidential decrees and orders cannot pre6udice the vested rihts of a defendant*accused as to pre*!artial law offenses
alleedl+ co!!itted b+ hi! nor be iven an adverse ex post facto effect aainst hi!.
%%. Respondents2 assu!ption of the validit+ of !ilitar+ trials of civilians and conclusion that ob6ections based on
differences between civil and !ilitar+ courts are i!!aterial !ust necessaril+ fail.
5t has been shown that respondents have failed to show the e7istence of so!e overpowerin factor that !a-es a
reconition of petitioner2s and other civilians2 constitutional rihts to due process inco!patible with the public safet+ as to
warrant the te!porar+ castin aside or suspension of such rihts. )n the contrar+, the issuance of the reinvestiation
order under Ad!inistrative )rder No. $// for the non*!ilitar+ "pecial Reinvestiatin Co!!ittee created thereunder to
conduct a preli!inar+ investiation of the chares aainst petitioner shows that no ele!ent of public safet+ is herein
involved.
1he vested rihts invo-ed b+ petitioner as essential ele!ents of his basic riht to due process, which are not ranted hi!
under the decrees and orders for his trial b+ respondent !ilitar+ co!!ission, are substantial and vital, 4iz. his riht to a
preli!inar+ investiation as apparentl+ reconi,ed b+ Ad!inistrative )rder No. $// 8as to the non*subversion chares:
with riht to counsel and of cross*e7a!ination of the witnesses aainst hi!, and the riht under the Anti*subversion Act to
a preli!inar+ investiation b+ the proper court of first instanceA his riht as a civilian to be tried b+ 6udicial process, b+ the
reular independent civilian courts presided b+ per!anent 6udes with tenure and with all the specific safeuards
e!bodied in the 6udicial processA and his riht to appeal in capital cases to this Court wherein a 0ualified !a6orit+ of ten
8%3: affir!ative votes for affir!ance of the death penalt+ is re0uired.
1he ordinar+ la+!an as well as practitioner are totall+ unfa!iliar with the su!!ar+ rules and procedures of !ilitar+
co!!issions as co!pared to the established procedures under the Rules of Court before the civilian courts, which per se
places the civilian on trial before a !ilitar+ co!!ission in a disadvantaeous position. A cursor+ review of the transcripts
furnished the Court shows these peculiarities that nor!all+ would not occur in civilian trials, as followsB
1he swearin in at the co!!ence!ent of the perpetuation proceedins on March $%, %&'/ of two newl+*appointed
!e!bersA
67
1he withdrawal on March %/, %&'/ of the chares aainst .u- Co!!anders Melod+ and Pusa who were oriinall+ na!ed
as co*accused principals in the four subversion chares and their utili,ation as state witnesses, which accordin to the
co!!ission2s law !e!ber ?auto!aticall+ ta-es effect. 1he !ilitar+ co!!ission cannot pass upon such withdrawal?
6'
in
contrast to the procedure in the civilian courts where the dischare of accused persons to be state witnesses !ust !eet
certain re0uire!ents in the interest of truth and 6ustice, e.. that the ?defendant 8to be dischared: does not appear to be
the !ost uilt+? and ?has not at an+ ti!e been convicted of an+ offense involvin !oral turpitude? as deter!ined in the
6ud!ent of the court
69
A and
1he !ilitar+ prosecutor 8desinated as trial counsel: acts in his own description as ?a 2(lorified Chi!o+2 of the Militar+
Co!!ission. .e acts not onl+ as Prosecutor of Militar+ Co!!ission No. # but he acts as a eneral FAC1)1@M or a MAN
FR5=AJ of this Militar+ Co!!ission. . 8and: he prepares the record of the trial.?
7(

As far as is enerall+ -nown, the !ilitar+ co!!ission at the conclusion of the trial ta-es a secret written ballot with at least
two*thirds of the !e!bers present to arrive at its su!!ar+ findins of (uilt+ or Not (uilt+, without enterin a written
decision which ?shall clearl+ and distinctl+ state the facts and the law on which it is based? as is !andatoril+ re0uired b+
the Constitution of ever+ decision of a civil court of record.
7(
0
%#. 1he transcendental constitutional issues involved in the case at bar which the !a6orit+ has resolved to decide on the
!erits despite petitioner2s withdrawal !otion call for ad6udication on the basis of enshrined principles of constitutionalis!
and the rule of law, as une0uivocabl+ espoused b+ the President hi!self. 1he case at bar asserts the riht of civilians to
the 6udicial process of civilian trials b+ the reular civil courts 8particularl+ for pre*!artial law offenses: as aainst the
e7ecutive process of trial b+ !ilitar+ tribunals and hines on this Court2s upholdin the principle that the individual in the
absence of overpowerin necessit+ or public daner, !ust be accorded his constitutional rihts as uaranteed b+ the Bill
of Rihts even in a state of !artial law. A corollar+ principle would be that the continuation of !artial law for
institutionali,ation of refor!s is not inco!patible with reconi,in the funda!ental liberties ranted in the Bill of Rihts.
1he Bill of Rihts of the Constitution specifies the powers that have been withheld fro! the overn!ent and are reserved
to the people .
71
But the freedo! uaranteed b+ it aainst the overwhel!in power of the "tate would be !eaninless
and of no use unless citi,ens could vindicate and enforce the! aainst the overn!ent officials and aencies b+ proper
procedures in the courts. As held b+ the Court in Garcia 4s. "acaraig, ?5n a s+ste! li-e ours, ever+ e7ercise of
overn!ental co!petence, whether co!in fro! the President or fro! the lowest official, !a+ be challened in court in
an appropriate leal
proceedin.?
7!

As was stressed b+ the late Chief ;ustice "tone in :&ncan, s&pra, ?e7ecutive action is not proof of its own necessit+, and
the !ilitar+2s 6ud!ent here is not conclusive that ever+ action ta-en pursuant to the declaration of !artial law was
6ustified b+ the e7ienc+. 5n the substitution of !artial law controls for the ordinar+ civil processes, 2what are the allowable
li!its of !ilitar+ discretion, and whether or not the+ have been overstepped in a particular case, are 6udicial 0uestions.2
Sterling 4. Constantin, s&pra 8#C' @" 43%, '' > ed $C', /$ " Ct %&3:.
1he Court2s 6ud!ent at bar is therefore of the ut!ost i!portance since under Article C, Civil Code, ?;udicial decisions
appl+in or interpretin the laws or the Constitution shall for! a part of the leal s+ste! of the Philippines.? As defined b+
Lnovit, ?the Constitution and the laws enacted b+ the leislatures and the 6ud!ents and orders of the courts constitute
the Rule of >aw.?
1he President has often declared that ?1he New "ociet+ loo-s to individual rihts as a !atter of para!ount concern,
re!oved fro! the vicissitudes of political controvers+ and be+ond the reach of !a6orities. <e are pleded to uphold the
Bill of Rihts and as the e7iencies !a+ so allow, we are deter!ined that each provision shall be e7ecuted to the
fullest, ....?
73

<hile stressin that ?!artial law ... is a te!porar+ constitutional e7pedient of safeuardin the Republic?
74
and ?a
te!porar+ phase in the develop!ent of our
countr+,?
75
the President has thus called for the Constitution to ?re!ain fir! and stable,? has re6ected the ?e7ercise 8of:
power that can be identified !erel+ with a revolutionar+ overn!ent? that !a-es its own law
76
and has called on ever+
citi,en to ?re!ain steadfast on the rule of law and the Constitution?, as followsB t.ñ./0h123/
. . . <hoever he !a+ be and whatever position he !a+ happen to have, whether in overn!ent or outside
overn!ent, it is absolutel+ necessar+ now that we loo- sole!nl+ and perceptivel+ into the Constitution
and tr+ to discover for ourselves what our role is in the successful i!ple!entation of that Constitution.
<ith this thouht, therefore, we can aree on one thin and that isB >et all of us ae, let all of us then pass
awa+ as a pace in the develop!ent of our countr+ but let the Constit&tion re-ain fir- and sta5le and let
institutions row in strenth fro! da+ to da+, fro! achieve!ent to achieve!ent, and so long as that
Constit&tion stands, 2hoe4er -ay the -an in po2er 5e, 2hate4er -ay his p&rpose 5e, that Constit&tion
2ill g&ide the people and no -an, ho2e4er po2erf&l he -ay 5e 2ill dare to destroy and rec? the
fo&ndation of s&ch a Constit&tion.
1hese are the reasons wh+ 5 personall+, havin proclai!ed !artial law, havin been often induced to
e7ercise power that can be identified !erel+ with a revolutionar+ overn!ent, have re!ained steadfast
on the r&le of la2 and the Constit&tion. 5 would reco!!end that if the President can do this, it the
President can restrain the e7ercise of his own powers, ever+ citi,en for his part should not find it a burden
to participate in this act of self*denial and self*abneation, as an earnest to the future of our race and our
people.
77

1his is but to state that no one should be above or below the law and to reiterate the classic dictu! that ?1he
Constitution . . . is a law for rulers and people, e0uall+ in war and in peace, and covers with the shield of its protection all
classes of !en, at all ti!es, and under all circu!stances.?
7'
5n the relativel+ recent case of !hil. 'loo-ing "ills
-ployees7 Organization 4s. !hil. 'loo-ing "ills,
79
Mr. ;ustice Ma-asiar restated for the Court certain ?basic concepts
and principles? of constitutionalis!, which bear reproducin as the+ concern the issues at bar, as followsB t.ñ./0h123/
8%: 5n a de!ocrac+, the preservation and enhance!ent of the dinit+ and worth of the hu!an personalit+
is the central core as well as the cardinal article of faith of our civili,ation. 1he inviolable character of a
!an as an individual !ust be ?protected to the larest possible e7tent in his thouhts and in his beliefs as
the citadel of his person.?
'(

8#: 1he Bill of Rihts is desined to preserve the ideals of libert+, e0ualit+ and securit+ ?aainst the
assaults of opportunis!, the e7pedienc+ of the passin hour, the erosion of s!all encroach!ents, and the
scorn and derision of those who have no patience with eneral principles.?
'1
5n the pith+ lanuae of Mr. ;ustice Robert ;ac-son, the purpose of the Bill of Rihts is to withdraw
?certain sub6ects fro! the vicissitudes of political controvers+, to place the! be+ond the reach of
!a6orities and officials, and to esta5lish the- as legal principles to 5e i-plied 5y the co&rts. )ne2s rihts
to life, libert+ and propert+, to free speech, or free press, freedo! of worship and asse!bl+, and other
f&nda-ental rights -ay not 5e s&5-itted to a 4oteD they depend on the o&tco-e of no elections.?
'!
>as-i
proclai!ed that ?the happiness of the individual, not the well*bein of the "tate, was the criterion b+ which
its behaviour was to be 6uded. .is interests, not its power, set the li!its to the authorit+ it was entitled to
e7ercise.?
'3

777 777 777
Mr. ;ustice =oulas articulated this pointed re!inderB
1he challene to our liberties co!es fre0uentl+ not fro! those who consciousl+ see- to destro+ our
s+ste! of overn!ent, but fro! !en of oodwill*ood !en who allow their proper concerns to blind the!
to the fact that what the+ propose to acco!plish involves an i!pair!ent of libert+.
... 1he !otives of these !en are often co!!endable. <hat we !ust re!e!ber, however, is that
preser4ation of li5erties does not depend on -oti4e. A s&ppression of li5erty has the sa-e effect 2hether
the s&ppressor 5e a refor-er or an o&tla2. The only protection against -isg&ided zeal is constant
alertness of the infractions of the g&arantees of li5erty contained in our Constitution. ach s&rrender of
li5erty to the de-ands of the -o-ent -a?es easier another, larger s&rrender. The 5attle o4er the 'ill of
Rights is a ne4er is a ne4er ending one.
... The li5erties of any person are the li5erties of all of &s.
... )n short, the li5erties of none are safe &nless the li5erties of all are protected.
... '&t e4en if 2e sho&ld sense no danger to o&r o2n li5erties, e4en if 2e feel sec&re 5eca&se 2e 5elong
to a gro&p that is i-portant and respected, 2e -&st recognize that o&r 'ill of Rights is a code of fair play
for the less fort&nate that 2e in all honor and good conscience -&st o5ser4e.
'4
5f as stressed above unifor!l+ b+ the President and the cited leal authorities, s&pra, the freedo!s uaranteed b+ the Bill
of Rihts are ?re!oved fro! the vicissitudes of political controvers+ 8and: be+ond the reach of !a6orities and officials? and
are established ?as leal principles to be applied b+ the courts? and ?!a+ not be sub!itted to a voteA the+ depend on the
outco!e of no elections,? then it is respectfull+ sub!itted that the principles of funda!ental public polic+ enshrined in the
Bill of Rihts that uarantee to ever+ individual due process and fair pla+, reardless of who he is and of whoever !a+ be
in power, call for the rantin of the petition and at the least for the reinvestiation of the chares aainst petitioner with
?ut!ost fairness, i!partialit+ and ob6ectivit+? as directed in Ad!inistrative )rder No. $// itself.
"&ñoz#!al-a, J., concur.;<2ph=;.ñ>t
BARRE$O, J., concurrinB
5 concur in the !ain opinion so ver+ abl+ penned for the Court b+ our distinuished colleaue, Mr. ;ustice Antonio. 5 a!
writin this separate opinion not with intent to unnecessaril+ lend force to the coent and co!pellin considerations
e7pounded therein but onl+ to articulate a few thouhts 5 entertain relative to certain aspects of this case which have
additionall+ i!pelled !e to overrule the contentions of petitioner other than his invocation of his riht to waive his
presence at the proceedins bein held aainst hi!.
At the outset, 5 would li-e to underscore the fact that this is the first decision of this Court reardin !a6or !artial law
issues wherein the !ain opinion carries the un0ualified concurrence of the re0uired nu!ber of 6ustices for doctrinal
purposes. "ince 5 have heretofore reretted )ur failure to aree on a co!!on opinion that would not be sub6ect to var+in
constructions, includin distorted and self*!otivated ones which could be peddled around for propaanda purposes b+
those who for reasons of their own cannot see an+ti!e riht in the present order, it is to !e a cause of enuine
satisfaction that at lon last the Court has been able to render the instant opinion and 6ud!ent, touchin on i!portant
and basic constitutional and leal features of the prevailin !artial law ad!inistration, in a !anner that leaves no roo! for
doubt as to the !eanin and scope of )ur pronounce!ents.
1o be !ore specific, the !ain opinion in this case and the rulins therein contained own the full support of at least eiht
!e!bers of the Court, without countin what 5 consider to be the close*enouh*to*concurrence posture of Mr. ;ustice
Fernando, which betra+s no little effort to reconcile lon cherished traditional views with the innovative and proressive
6uridical concepts e!erin fro! the i!peratives of the leal character of the presentl+ established overn!ent. 5n the
liht of the constitutional re0uire!ent of ten 8%3: votes for a declaration of invalidit+ of an+ order of the President, eiht
neative votes is !ore than i!pressive. And certainl+, all the rulins in the !ain opinion, havin as the+ do have the
support of those eiht votes, constitute authoritative doctrines, aainst which, the contrar+ views of an+ !e!ber of the bar
should have no !ore than acade!ic value. At these ti!es when it is best that the leal foundations of the e7istin
overn!ent should be securel+ solidified to better and faster achieve the ends for which !artial law has been proclai!ed,
the pronounce!ents of the Court in this case should put an end to an effort to discredit the actions of this (overn!ent as
bein founded onl+ on !iht rather than riht. 5ndeed, !+ faith is that the rule of law obtains toda+ as it has alwa+s
obtained before, arid due consideration and correspondin acco!!odation accorded to the re0uire!ents of the
e!erenc+ confrontin the nation do not detract in an+ wa+ fro! the effective supre!ac+ of the law.
%. !etitioner -otion to 2ithdra2 denied
5t is a settled rule consistent with the fittin dinit+ of 6udicial proceedins that after a case has been sub!itted for
decision, withdrawal of the sa!e fro! the 6urisdiction of the court is a !atter addressed to its sound discretion and is far
fro! bein a !atter of riht on the part of an+ of the parties. For obvious reasons, a part+ should not be allowed to
provo-e issues of far reachin interest and i!portance and hurl accusations aainst the actuations of the adverse part+,
thereb+ creatin doubts in the public !ind as to the validit+ of said actuations, and thereafter, upon bein confronted with
the defenses of his opponent and sensin perhaps probable defeat, to 6ust ta-e a retreat, without e7pressl+ ad!ittin the
infir!it+ of his position, thereb+ !a-in sure that he can with relative i!punit+ continue with his critical attitude in the
!anner suitable to his convenience and purposes. )bservance of the laudable polic+ of ter!inatin litiations at the
earliest opportunit+ !a+ not be invo-ed when the evident result is detri!ent to the !ore para!ount ob6ective of havin a
definite rulin b+ the "upre!e Court as to what the law is in reard to the !atters of vital public interest actuall+ and
properl+ brouht to it for ad6udication.
But the i!perative need to settle the i!portant issues raised in this case is not the onl+ reason 5 have for votin to den+
petitioner2s !otion. <hen petitioner was re0uired b+ the Court to a!plif+ his initial unreasoned re0uest to be allowed to
withdraw all his petitions, !otions and other incidents herein, his counsel sub!itted a letter purportedl+ co!in fro!
petitioner, wherein he vehe!entl+ cast aspertions aainst this Court, allein that he does ?not want an+thin fro! the
"upre!e Court, and that the whole thin had been desined, co!posed and orchestrated in MalacaEan? and that his
?leal battles in the "upre!e Court are now over. Mr. Marcos is the sinle enius, co!posin and directin all the
proceedins, whether in the !ilitar+ tribunal or in the civil courts,? and even oin as far as referrin to the ?"upre!e
Court as an obstacle.?
5 do not believe 2it is under an+ circu!stance proper for a "upre!e Court to leave such accusations unchallened. Most
li-el+, the+ could be !ere uncontrollable outburst of a desperate soul which are without 6udicial sinificance, but since it is
as li-el+ that petitioner2s letter would be used as propaanda !aterial not onl+ here but abroad to discredit the Philippine
(overn!ent in the e+es of the world, 5 consider it inevitable for the Court to proceed to dispose of the !erits of petitioner2s
case and thus let all and sundr+ 6ude for the!selves on the basis of the Court2s e7pressed considerations rather than on
that of petitioner2s self*servin opinion, whether or not our 6udiciar+ is what petitioner clai!s it to be. 5t is !+ considered
view that if a part+ who co!es to court has indeed an+ riht to withdraw his case therefro!, such withdrawal should not
receive the sanction of the court when the part+ tells the court that his reason for withdrawin is because he has no
confidence in its i!partialit+ and capacit+ to render 6ustice. 5n such a situation, the onl+ recourse of the court is to prove b+
actuall+ decidin the case how 6ust and i!partial it is.
5 would li-e to state here e!phaticall+ that petitioner2s apprehensions about the daners to the independence of the
6udiciar+ of the Philippines at present, particularl+ the "upre!e Court, is nothin !ore than an a priori opinion and is not
and cannot be supported b+ facts. After all, the Court does not have to necessaril+ aree with ever+one who feels that
certain acts of the (overn!ent are illeal or unconstitutional. "urel+, a propensit+ to overrule the other depart!ents of the
(overn!ent is not the true !ar- of the independence of the 6udicial branch. 5f so far, the "upre!e Court has not +et
declared an+ i!puned acts of the President or the !artial law overn!ent unconstitutional, it is not because the Court is
subservient to the President in an+ wa+, but si!pl+ because, in the honest conviction of its !e!bers, the proper case for
such a declaration has not co!e. 1hat the Court can and will stri-e down acts of the President in the appropriate
instances, there should be no doubt whatsoever. 1he people can rest assured that when the proper occasions arise, the
6ustices, individuall+ and collectivel+, will not be found wantin in wisdo! and courae to act accordinl+, reardless of
what !iht be the views and wishes of the E7ecutive andDor an+ other depart!ent of the overn!ent.
At this point, it !a+ not be a!iss to sa+ a few words respectin petitioner2s decision to resort to what is bein referred to
as a ?huner stri-e.?
Accordin to his letter afore!entioned, the initial reason for such a step was, to 0uote his own words, to ?protest aainst a
procedure intended to hu!iliate and dehu!ani,e !e, considerin that all the+ wanted was for !e to be identified as a
co!!on cri!inal and not as a political rival. 5 also said that !+ huner stri-e was not onl+ for !+self but on behalf of
!an+ other victi!s of toda+2s oppression and in6ustices.? >ater, however, the causes thereof were broadened b+ hi! thusB
t.ñ./0h123/
=espite !+ huner stri-e, or probabl+ because of it, 5 see with un!ista-able clarit+ that !+ leal battles in
the "upre!e Court are now over. Mr. Marcos is the sinle enius, co!posin and directin all the
proceedins, whether in the !ilitar+ tribunal or in the civil courts. 1his is the evil of one*!an rule at its
ver+ worst. .e has destro+ed the independence of the civil courts, abolished the leislature, controlled the
!ass !edia, curtailed our cherished liberties with the bac-in of the !ilitar+, which, ironicall+, e7ists 2for
the ood of the people.2
<ithout the "upre!e Court as an obstacle, 5 have decided to o on !+ huner stri-e and place !+ fate
and !+ life s0uarel+ in the hands of !+ accuser, prosecutor, and 6ude Mr. Marcos. 1hus the plain, na-ed
truth will be !ade clear to our people and to the rest of the world.
As 5 said, !+ huner stri-e is not for !+self alone, but for the !an+ thousands of Filipinos who are
helpless victi!s of the oppression and in6ustices of the so*called New "ociet+. 1he !eanin and thrust of
!+ strule and sacrifice transcend the li!ited 0uestion of absence or presence in the proceedins
before the !ilitar+ tribunal. 5 have therefore sole!nl+ vowed to continue !+ huner stri-e as a s+!bol of
our people2s fir! protest aainstBt.ñ./0h123/
%. 1he trial of civilians before !ilitar+ tribunals, particularl+ for offenses alleedl+
co!!itted b+ the! before !artial lawA
#. the lac- of 6udicial independence. 1rials b+ civil courts would still be a travest+ of
6ustice, especiall+ in cases where those in power, their relatives or associates, are
interested K for as lon as our 6udes re!ain ?casuals?. 1he+ should be iven
per!anent tenure, for their own ood and for the benefit of our people who have a vital
sta-e in a sound ad!inistration of 6ustice.
$. the absence of a enuine free press. "ince !artial law was proclai!ed, 5 have been
unfairl+ conde!ned and vilified b+ the controlled newspapers and tv*radio stations. 5
-now there are !an+ people who have been si!ilarl+ pilloried. But a enuine free press
is even !ore i!portant for those who are in power. 5t !a+ free the! fro! their arroance,
their pre6udices, and their pretensions, and help the! see the in6ustices the+ have
co!!itted aainst their own people.
4. the further continuation of !artial law and its evils and repressions. After all, Mr.
Marcos has alread+ announced to the world that he had actuall+ re!oved !artial law
since April, %&'4.? 8Petitioner A0uino2s letter, pp. 4*/.:
5n so far as petitioner2s ?huner stri-e? !a+ be understood as an atte!pt to sta!pede the Court to render a verdict
favorable to his views, 5 !ust state cateoricall+ that it is subversive and contu!acious, speciall+ because it is bein
ad!ittedl+ done with ?un!ista-able clarit+? of !ind and purpose. Fran-l+, 5 a! at a loss as to what -ind of procedure
would suit hi!. 5n the sa!e breadth that he professes to advocate that ever+ !an is entitled to e0ual protection of the
laws, he clai!s that he should be treated not as an ordinar+ accused but ?as a political rival?, evidentl+ !eanin, of the
President. .ow indeed is ?a political rival? of the Ad!inistrator of !artial law supposed to be prosecuted for an offense
co!!itted aainst the laws of the landN
Be that as it !a+, an+one can easil+ i!aine the un!anaeable situation and 6udicial chaos that would result should <e
create a precedent wherein the Court should +ield to the de!ands of a person under for!al chare of co!!ittin an
offense, as otherwise he would resort to a huner stri-e. Nonetheless, <e were so!ehow disposed to lean bac-wards
and rule interlocutoril+ as earl+ as <e could on the issue as to whether or not the respondent Militar+ Co!!ission was
riht in co!pellin petitioner to attend the perpetuation proceedins and thereb+ place his initial cause for the ?huner
stri-e? in its true perspective. But )ur efforts to this end were !et b+ petitioner2s Churchill li-e reaction that what <e could
possibl+ ive was ?too late and too little?, !anifested b+ his once !ore disauthori,in his law+ers fro! henceforth
spea-in for hi! and finall+ see-in the withdrawal of this case fro! our hands. 5s the Court supposed to e7tend to a
?political rival? of the President !ore than what the e7istin laws provide for othersN
As a Filipino !+self, 5 a! read+ to concede that petitioner is bein actuated b+ what he honestl+ believes to be his dut+ to
our countr+ and people. .is abidin lo+alt+ to his cause and his fir! conviction to attain his ob6ectives are to !e
ad!irable. But 5 re6ect an+ suestion that for the Court to uphold the lealit+ and constitutionalit+ of the e7istin
overn!ent is ini!ical to the national interests and ideals. 5 can see that the concept of !artial law presentl+ bein
evolved here as well as so!e features of its i!ple!entation do not confor! with certain views of the A!erican "upre!e
Court and so!e alien writers on the sub6ect, but is it i!perative that the "upre!e Court of the Philippines should adhere
to the doctrines laid down b+ alien authorities in order to be rihtN
5ncidentall+, it is beco!in increasinl+ evident that so!e reliious 0uarters as such would want their influence felt in the
resolution of the leal issues before @s. )ne does not have to di deep into the paes of histor+ to learn that nations and
peoples have also suffered where and when there was no separation of the church and state as when the+ were under
despots and autocrats. 5n an+ event, while one can co!!iserate and s+!pathi,e with petitioner for the personal
sufferins he has elected to undero, 5 cannot convince !+self that the+ are in an+wa+ co!parable with the aonies of
Christ at Calvar+, as see!inl+, 5 a! infor!ed, has been so!ehow or see!inl+ suested at a reliious atherin
so!eti!e ao of those who share convictions with petitioner. <ithal, 5 a! afraid that even the !ere atte!pt to draw such
a co!parison could be a sin of sacrilee and of havin strane ods before our onl+ .ol+ Redee!er.
B. "ilitary tri5&nals and trials for persons 2ho ha4e co--itted offenses against the o5Cecti4es of -artial la2 is a nat&ral
and logical conco-itant of -artial r&le.
1he lealistic and scholarl+ discussion in the !ain opinion of the issue of 6urisdiction of herein respondent Militar+
Co!!ission No. # needs no a!plification. 5 onl+ wish to punctuali,e a broader foundation for !+ concurrence. 5 have
alwa+s !aintained it is ele!entar+, historicall+ and leall+, that in an+ rei!e of !artial law, offenders aainst its
ob6ectives are and ouht to be tried b+ !ilitar+ tribunals in accordance with the procedure prescribed for the!. 1o feel
apprehensive than that unless the Court upholds petitioner2s contention that as a civilian he cannot be tried b+ respondent
co!!ission for the cri!es alleedl+ co!!itted prior to the procla!ation of !artial law, thousands of Filipinos run the ris-
of bein si!ilarl+ hailed before !ilitar+ courts and deprived of their constitutional rihts to due process, is to inore that
throuhout the life of all nations, when rebellions and revolutions were !ounted, no distinction has ever been drawn,
a!on those initin the uprisin which naturall+ was done before an+ declaration of !artial law, as to whether the+ are
civilians or !ilitar+ !en, for purposes of tr+in the! before the !ilitar+ courts of the leiti!ate or victorious overn!ent, at
least, whenever prosecution has to be underta-en before the hostilities were over. And in this connection, it !a+ be said
of !ore recent !ilitar+ tribunals tr+in rebels that !ore safeuards are bein adopted in order that the ele!entar+
re0uire!ents of due process !a+ be surel+ observed b+ the!. Moreover, it would be a !isconception of the true i!port of
this decision to suppose that it !a+ be ta-en advantae of b+ an+ future overn!ent, for, as 5 have e7plained in !+
concurrin opinion in the .abeas Corpus cases,
1
an+ self*restraint the Court has opted to e7ercise in its decisions so far
rendered, fro! assertin its 6udicial authorit+ to interfere with the actuations of the E7ecutive, considerin it has not found
an+ evidence of !anifest abuse of discretion or ross arbitrariness in the!, does not !ean the "upre!e Court has lost
the power to act accordinl+ in appropriate cases that !a+ co!e later. And there bein no 0uestion that Procla!ation
%3C% which established !artial law in the Philippines is
valid,
!
it necessaril+ follows that respondent !ilitar+ tribunal which has been created under it are vested with 6urisdiction to
tr+ and decide petitioner2s cases, it appearin that the chares and specifications aainst hi! are related to the causes
that ave occasion to the Procla!ation, no !atter that the offenses chared therein were co!!itted lon before the
issuance of said procla!ation. )therwise, the alternative would be to await the ter!ination of !artial law when all
passions shall have subsided and the courts could cal!l+ and without reard to the personal feelins of the 6ude as to
the !erits of the rebellion !a-e an i!partial decision, but that would !ean the continued detention of the petitioner in the
!eanti!e.
5t is insisted, however, that since the civil courts are open, it is deroative of their constitutional authorit+ to sanction
petitioner2s trial in a !ilitar+ co!!ission. "uch contention inores the funda!ental !ission of !ilitar+ courts durin !artial
law. 5n an+ !artial law situation wherein civil courts are continued, their co*e7istence with !ilitar+ tribunals ouht not to
create an+ conflict of 6urisdiction. 1he trial and punish!ent of offenders aainst the established order should as a !atter of
necessit+ be left in the hands of the !ilitar+ whereas the civil courts are supposed to aid in the preservation of nor!al
societ+ a!on the non*offenders b+ continuin the e7ercise of their 6urisdiction over all civil !atters which have no direct
relation to the i!peratives of the Procla!ation. And as ver+ well e7plained in the !ain opinion, the constitutional
re0uire!ents of due process are bein co!plied with even in the !ilitar+ tribunals.
5n leal conte!plation, there is here no di!inution !uch less a deroation of the 6udicial power vested b+ the Constitution
upon the "upre!e Court and other inferior courts established b+ law. As 5 !ade clear in !+ separate opinion in the
.abeas Corpus cases,
3
once the "upre!e Court refrains, durin a national e!erenc+, b+ virtue of the discretion
i!plicitl+ ranted to it b+ the people in the Constitution, fro! invalidatin the procla!ation of !artial law, because it is
convinced that there has been no patent arbitrariness in its issuance, which <e have actuall+ done alread+ in said cases,
there can be no leal ob6ection to the e7istence of !ilitar+ courts for the purposes 5 have 6ust indicated. And it !ust be so,
for it is entirel+ rational that !ilitar+ tribunals are peculiarl+ fit, in view of the !ore su!!ar+ and e7peditious procedure
desined for their functionin, to te!poraril+ ad!inister 6ustice in the pro!pt and unencu!berso!e !anner re0uired b+
the e7iencies of the situation. 5n other words, the theater*of*war test is not trul+ deter!inative of the constitutionalit+ of
!ilitar+ trials durin !artial law, even when !artial law is proclai!ed for the e7press purposes of si!ultaneousl+
refor!in societ+ with the suppression of the rebellion b+ causes therefore !a+ not recur. <hether or not the authorit+ of
the civil courts !a+ ive wa+ to !ilitar+ 6urisdiction should rather depend on the nature of the offenses co!!itted and its
relation to the eli!ination of the unnecessar+ hindrances or obstacles to the co!plete restoration of order and the
attain!ent of the social and political ob6ectives of the Procla!ation.
E. !etitioner7s allegation of pre#C&dg-ent, al5eit lac?ing in s&fficient C&ridical pers&asi4eness is ne4ertheless 2orthy of
serio&s consideration 5y the a&thorities 2ho can pro4ide relief.
1hat 5 a! so!ehow i!pressed b+ petitioner2s contention of supposed pre*6ud!ent of his case b+ the President who has
ordered the creation of the !ilitar+ courts and b+ who! their decisions are to be reviewed for final approval is no secret.
At the open hearin of this case before this Court on April %4 last, 5 had occasion to as- the "olicitor (eneral what
possible i!pedi!ents are there to the transfer of petitioner2s case to the civil courts, which can rihtl+ be done under the
law. But that was, of course, far fro! indicatin that 5 believe that indeed there could be such pre6ud!ent. 5 have faith
that in the dischare of his sole!n constitutionall+ prescribed oath to ?do 6ustice to ever+ !an?, President Marcos would
not be capable of wantonl+ discardin the inherent responsibilities of his hih office, -nowin as he does that he would not
be where he is were it not for the trust and confidence reposed in hi! b+ the people when the+ elected hi! as the !an
who b+ the e7ercise of the i!!ense powers iven hi! b+ the Constitution would precisel+ protect and defend the!
aainst in6ustice and oppression.
1ruth to tell, the thouht or suspicion of pre6ud!ent in !ilitar+ 6ustice durin !artial law is inevitable, for the obvious
reason that the concentration of powers in such a situation carries with it inherentl+ the spectacle of the ar!+ bein the
accuser and 6ude at the sa!e ti!e. <hen it is considered, however, that !ilitar+ courts are enerall+ colleiate, with
each !e!ber thereof bein oblied to vote secretl+ not onl+ on the issue of the uilt of the accused as to each chare
and specification but separatel+, also on the penalt+ to be i!posed, and that in i!portant cases, particularl+ capital ones
li-e so!e of those of petitioner, their decisions are auto!aticall+ sub6ect to review and reco!!endation b+ a nu!ber of
levels of authorit+, such as the Chief of "taff, the Board of Review, the "ecretar+ of National =efense etc., each with their
correspondin staff 6ude advocates, before reachin the President for the final verdict, one cannot escape the conviction
that !ore e7actin safeuards aainst an+ possibilit+ of partialit+ and pre6ud!ent !a+ not be found in the civil courts. 5t
is entirel+ wron, un6ust and unwarranted to thin- of all ar!+ !en as havin onl+ one !ind. After all, the+ are also
Filipinos li-e petitioner and counsel, and the+ cannot have less interest in and devotion to the sacred ideals for which our
co!!on countr+ and people e7ist.
Moreover, in the case at bar, the state!ents attributed to the President and which petitioner 0uotes and !aintains are
reflective of the President2s supposed pre*6ud!ent of his cases, viewed ob6ectivel+, would indicate at !ost onl+ an
offhand evaluation of the evidence then on hand, without reard to the other evidence now in possession of the
prosecution, and without countin those which petitioner will present on his behalf, and does not necessaril+ a!ount to a
pronounce!ent of uilt. As such, therefore, the+ do not sufficientl+ prove what the 6ud!ent of the President would be
after the whole evidence of petitioner2s cases shall have been e7a!ined and evaluated b+ hi!. 5n other words, fro! the
strictl+ leal point of view of petitioner2s pose about denial of due process to hi! b+ reason of pre6ud!ent lac-s
persuasiveness.
>eal standards aside, however, it is i!!ensel+ reassurin that the President has announced that as soon as the present
perpetuation proceedins are ter!inated, he will consider the advisabilit+ of transferrin the cases in 0uestion to the civil
courts. "hould that be done, and 5 have no reason for believin that it will not be so done, it will not onl+ be that petitioner
will be relieved of a reat deree of !ental torture, but, as i!portantl+ if not !ore so, the President shall have iven the
nation elo0uent proof not so !uch of his nobilit+ as of his deter!ination not to allow the decision in the cases of petitioner
to be in an+ !anner tainted b+ the slihtest suspicion of an+ personal feelin or opinion on his part. And 5 have no fears at
all that others who are also si!ilarl+ chared before !ilitar+ co!!issions will de!and the sa!e treat!ent, thereb+
subvertin the whole s+ste! of cri!e prosecution under !artial law 5 have earlier adverted to, for in the particular case of
petitioner, there is the sinular circu!stances that the President has !ade state!ents which have so!e relevance to his
cases, which it does not appear has been done in those of the others. Besides, under (eneral )rder No. 4&, the
President has alread+ transferred the !ass of the cases aainst civilians to the civil courts. Briefl+ then, while 5 hold that
there is nothin constitutionall+ wron with havin petitioner tried b+ a !ilitar+ tribunal, it is !+ conviction that it is
preferable fro! all other points of view that his cases be transferred to the civil courts, and not because in fact he will not
et 6ustice fro! the for!er, but because he will have !ore peace of !ind in the latter and the people will be spared ever+
doubt as to whether or not the slihtest ele!ent of partialit+ or bias has crept into one of the !ost i!portant trials in the
current histor+ of our countr+. But, of course, it is not within the a!bit of the authorit+ of even the Court itself, !uch less
this writer, to direct the President2s e7ercise of the powers vested in hi! b+ the ConstitutionA so, all that 5 can do is to voice
the faith and hope that the President !a+ not encounter an+ further obstacle to his actuall+ orderin the transfer of
petitioner2s cases to the civil courts in accordance with his affor!entioned public announce!ent, the sooner the better.
F. !etitioner has the right to 2ai4e his presence at the perpet&ation proceedings 5efore the respondent Co--ission.
As 5 stated earlier, what reall+ see!s to have initiall+ provo-ed petitioner2s decision to o on so!e -ind of a huner*stri-e
was the respondent Co!!ission2s turnabout in reard to the issue of whether or not he can waive his presence durin the
perpetuation proceedins before it. After rulin at first that he had such riht, subse0uentl+, upon !otion for
reconsideration of the prosecution, the Co!!ission reversed itself and ruled that his presence is indispensable and can
thus be secured co!pulsoril+. But if such action of the respondent co!!ission is the cause of petitioner2s huner stri-e,
as he had stated at the beinnin, he !a+ now desist fro! continuin with his rather perilous posture. All the !e!bers of
the Court participatin in this case are areed that the rulin in !eople 4s. A4anceña
4
relied upon b+ the prosecution
should be at least !odified, if not co!pletel+ overturned. "i7 of us, na!el+, ;ustices Fernando, 1eehan-ee, Antonio,
MuEo, Pal!a, A0uino and this writer are of the view that petitioner, althouh under detention and chared with a capital
offense, has the riht to absent hi!self at an+ stae of the trial, while the other five ;ustices, na!el+, ;ustices Castro,
Ma-asiar, Esuerra, Concepcion ;r. and Martin, believe also that that riht e7ists sub6ect however to the 0ualification that
it cannot be invo-ed whenever his presence is needed for identification purposes. Accordinl+, it is entirel+ up to the
petitioner whether or not to attend the perpetuation proceedins now oin on e7cept when he is to be identified b+ the
witnesses on the stand and onl+ for 6ust the ti!e needed for that e7clusive purpose.
"pea-in for !+self, 5 find e!inent !erit in the contention of petitioner that even for identification purposes he cannot be
!ade to be present at the trial aainst his will. "ince under the Constitution, trial of cri!inal cases in the absence of the
accused is allowed, when after the arrain!ent and in spite of due notice he fails to appear without 6ustification, pursuant
to "ection %& of the Bill of Rihts or Article 5G, 5 cannot see wh+ an accused who does not want to undero the e7perience
of bein repeatedl+ pointed to and of bein the taret of the curious e+es of the public, cannot elect to leave the defense
of his case and of his rihts to his counsel in his absence or even put hi!self co!pletel+ at the !erc+ of the court, secure
in the thouht that it is an+wa+ the inescapable dut+ of the 6ude not to allow an+thin illeal or inhu!an to be done to
hi!.
5 can understand wh+ an accused has to be present at the arrain!ent and at the readin of the sentence. 5n the for!er, it
has to be -nown to the court that he is indeed the person chared and that he personall+ understands the accusation
aainst hi!. More i!portantl+, the plea !ust be entered b+ hi! personall+ to avoid an+ !isconstruction or
!isrepresentation, innocent or otherwise. 5n the latter, it is essential that the accused hi!self should be aware fro!
personal -nowlede what is the verdict of the court, and if it be conviction, what is the penalt+ to be served b+ hi!. 1hese
are !atters too personal to per!it deleation. At the sa!e ti!e, his presence !a-es it si!pler in the public interest for the
authorities to enforce e7ecution of an+ adverse 6ud!ent. But 5 cannot see wh+ an accused should be co!pelled to be
present at the trial when he prefers perhaps the solitude of his cell to pra+ either for foriveness, if he -nows he is uilt+,
or, if he is innocent, for (od to illu!ine the court so there would be unerrin 6ustice in his case.
M+ understandin is that the proble! of identification of an accused !a+ be ade0uatel+ solved without violatin the
6ustified wishes of the accused to be left alone. 1o start with, if he is referred to b+ the witnesses of the prosecution b+
na!e, the court !a+ presu!e that the accused who has ac-nowleded his true na!e at the arrain!ent is the one
indicated. 1his Court ruled une0uivocall+ !ore than si7t+*five +ears ao in 8.S. 4s. Adolfo, %# Phil. #&9, and reiterated it in
!eople 4s. Santos, /$ Phil. C9$, twent+ +ears later, and there has been no contrar+ opinion since then, that the rebuttable
presu!ption of identit+ of person is applicable not onl+ in civil cases but also to the identification of the accused in cri!inal
cases. 1o !+ !ind, there is absolutel+ no need that the accused be personall+ identified b+ the court while the inculpatin
witness is testif+in, where the accused voluntaril+ waives his presence and even suests to the court, as petitioner has
done, to avail of the leall+ presu!ption 6ust !entioned. 8"ee "ec. / 8w:, Rule %$%.:
)f course, it is to be underscored that the presu!ption is C&ris tant&-. 1hus, the waiver of the presence of the accused at
the trial does not preclude hi! fro! presentin evidence to overco!e the presu!ption. 5 ad!it that the ensuin situation
!a+ pose proble!s for the prosecution, but where in the de!ocratic world is the accused supposed to lend his hand in
order to !a-e it that !uch easier for the court to convict hi!. )ur funda!ental law, no less than the rudi!entar+ rules of
fair pla+, e7pressl+ en6oins that the accused !a+ not be co!pelled to incri!inate hi!self. 5 ta-e such in6unction to be
consistent with !an2s inalienable riht to be treated with the dinit+ of a hu!an bein and it therefore e7tends to an+ and
all for!s of !a-in the accused aid the prosecution in provin its case.
5t is clai!ed that the state has the un0uestionable riht and dut+ to see to it that the accused is not convicted unless he is
dul+ identified. 1o the wisdo! and nobilit+ of such proposition, 5 !ust sa+ a!en. But 5 !aintain that it is an inconruit+ in
principle to predicate on such a 6ust pre!ise the conclusion that the state !a+ co!pel the accused to assist it b+
e7hibitin hi!self for purposes of identification. 5 a! aware of precedents to the effect that the co!pulsion aainst self*
incri!ination prohibited b+ the Bill of Rihts does not conte!plate acts re0uired of the accused which do not involve the
e!plo+!ent of his intellect. 5n other words, he cannot be !ade to produce evidence aainst hi!self, but he can be
co!pelled to perfor! !echanical acts conducive to that end. But 5 do not see an+ analo+ between the facts in those
precedents and the case at bar, and, in an+ event, 5 do not see the 6ustice and fairness of those precedents. As far as 5 a!
concerned, the prosecution !ust prove its ease b+ its own effort and within own resources and should not be per!itted to
depend on the accused for an+thin that will help it secure his conviction. 5 -now that the Constitution has placed
e!phasis on the duties and obliations of persons in the Philippines e0uall+ with the Bill of Rihts, but nowhere in those
pertinent provisions in Article G do 5 discern an+ dut+ or obliation on the part of an accused to help the prosecution in
havin hi!self identified b+ the witnesses of the state.
After havin been in continuous practice at the bar for !ore than three decades before 6oinin the Court, 5 should -now
that the al!ost invariable procedure practiced in the identification of accused persons at the trial is in a sense i!practical,
if not farcical. As the cases are called fro! the calendar, the accused are !ade to stand and evidence their presence
within the view of ever+bod+ in the courtroo! includin the witnesses of the prosecution. Rare is the occasion when
necessar+ precautions are ta-en at the initiative of !eticulous defense law+ers to prevent the witnesses fro! seein the
accused as the+ answer the callin of the calendar. M+ point is that an+ 0uibblin about the proper identification of the
accused b+ co!pellin his presence at the trial !a+ not be worth the irreparable in6ur+ to hu!an dinit+ that can be
caused b+ bodil+ and forcibl+ ta-in the accused fro! his place of confine!ent to the place of trial in the event he insists
on his pose that he is areeable an+wa+ that the presu!ption on identities 5 have referred to be applied to his case.
5n the precedents relied on b+ the prosecution, it is held that inas!uch as the accused is under detention, his person is
sub6ect to the disposition of the court before who! he is chared. 5 disaree. M+ position on this point is that his detention
is onl+ for the purpose of securin the e7ecution of the 6ud!ent in the eventualit+ of conviction and for no other purpose
deroative of his freedo! to waive his personal rihts related to the procedure of his trial. .is constitutional rihts ?to be
heard b+ hi!self or counsel, to be infor!ed of the nature and cause of the accusation aainst hi!, to have a speed+ and
public trial, to !eet the witnesses face to face and to have co!pulsor+ process to secure the attendance of witnesses and
the production of witnesses on his behalf? 8"ection %&, Art. 5G: includin those not to be ?co!pelled to be a witness
aainst hi!self ... to re!ain silent? and not to be sub6ected to ?force, violence, threat, inti!idation, or an+ other !eans
which vitiates 8his: free will? 8"ec. #3, id.: and even that of not bein ?twice put in 6eopard+ of punish!ent for the sa!e
offense? 8"ec. ##, id.: !a+ be waived b+ hi! provided the waiver is !ade properl+. As 5 see it, the riht to be present at
the trial is !ore or less the co!posite of these rihts 5 have enu!erated. "ince all of the! separatel+ are waivable, wh+
!a+ not the waiver of all of the! be done wholesale, so to spea-, as lon as the waiver is clearl+ and voluntaril+
!anifested to the court. Above all, 5 consider the riht of an accused to hu!an dinit+ to be !ore precious than all his
other rihts, hence 5 cannot see the point in co!pellin the accused to sacrifice his hu!an dinit+ for the sa-e of enablin
the prosecution to identif+ hi! in person when the sa!e end can as well be leall+ attained without e7actin fro! hi!
such sacrifice.
"ustainin as 5 do sustain the riht of petitioner to absent hi!self at the trial proper, it is unnecessar+ for !e to discuss
whether or not the perpetuation proceedins constitute part of the trial. 5 !ust !a-e it clear, however, than even if <e
were to hold that the+ are part of the trial proper, 5 insist that if the witnesses who have testified or will testif+ at the
perpetuation proceedins should be available when the trial actuall+ ta-es place it is the riht of the accused to have the!
recalled and to be e7a!ined further and even anew in the sound discretion of the trial court. Presidential =ecree $#C,
pararaph #, a!endin subpararaph 4 b 8': of Presidential =ecree No. $& is to be so construed, in the interest of
fairness and 6ustice.
As 5 close this concurrence, two thouhts continuousl+ recurrin in !+ !ind durin its preparation -eep urin articulation.
1he first is that to co!!it suicide is prohibited b+ the laws of (od and !an. No one has the riht to ta-e his life for an+
reason. <ithal, leadership in an+ field of hu!an endeavor creates a responsibilit+ that -nows no surcease for an+ -ind of
convenience. Perseverance of purpose to be of real sinificance and worth re0uires one2s survival. 1he future is
inscrutable the hand of fate uides onl+ those who bide their ti!e and do not despair before the desined !o!ent co!es.
1hus, it could +et be a cri!e also aainst the interests of our countr+ and people to indule in self*destruction when one
-nows that he has talents and attributes that can be offered for the attain!ent of the national destin+.
1he second concerns the "upre!e Court whose independence of conviction it is the bounden dut+ of ever+ Filipino to
-eep unsullied. 1he un-indest thin of all is for those to who! +ou concede the loftiest of !otives to i!pun rec-lessl+
+our own. 1he unceasin 0uest for the achieve!ent of the national oal naturall+ divides !en in all de!ocracies into
roups each co!posed of those sharin co!!on views and feelins as to how to !a-e the countr+ succeed earlier in
reali,in its ideals. "uch disparit+, however, cannot produce disunit+, as lon as ever+one involved because of official dut+
or choice trusts the ood faith of the other.
For the !e!bers of the Court to happen to coincide in leal views with the E7ecutive is not servilit+. Neither should it be
considered evidence of an+ !easure of orchestration or co!!on plannin. As a !atter of fact, there has never been an+
such thin. 1he best proof is that, as 5 have e!phasi,ed at the outset, this is the first !artial law case in which the
re0uired !a6orit+ for doctrinal purposes has been attained. <here then is the alleed orchestrationN And how could the
chare have basis in the face of the undeniable happenstance that no !artial law or constitutional decision has +et co!e
out fro! the Court without viorous and e7tensive dissents of notable consistenc+. 5ndeed, occasions there have been
when one or two !ore votes beca!e i!perative for a !ore effective and conclusive rulin, and no one can sa+ that
an+bod+ concerned received dictation as to what to do. )f !+ own -nowlede, 5 bear witness that not even a finer has
been lifted in an+ !anner aainst an+ of the dissenters. As of now, the Court has not found enouh cause to hold an+ of
the President2s actuations sub!itted for )ur scrutin+ to have overstepped constitutional bounds. 5t is evident that due care
is bein ta-en to avoid fault in this respect. 5 can i!aine no reason wh+ and no occasion when such effort will ever be
rela7ed at all. More so in the earnest viil b+ the "upre!e Court.
MUNO3 PALMA, J., dissentinB
5 concur with the dissentin )pinion of ;ustice Claudio 1eehan-ee with additional e7planation for !+ vote.
%. )n the Motion to withdraw Petition K
Fro! a letter of Benino A0uino, ;r. of April %4, %&'/, addressed to his wife, children, relatives, and friends sub!itted to
the Court and now part of the record of the case 8see pae ' of ;ustice 1eehan-ee2s dissentin opinion:, 5 a! convinced
that petitioner no loner desires to see- redress or relief fro! this Court. .e would rather !a-e of his pliht 8his continued
detention fro! "epte!ber #$, %&'#, in a !ilitar+ ca!p and trial before a Militar+ Co!!ission for cri!es alleedl+
co!!itted before the procla!ation of Martial >aw: a !atter of conscience between hi!self and the President of the
Republic, and offer his life for what he believes is a rihtful cause. <ho a! 5 to stand on the wa+ of this !an who offers
hi!self in supre!e sacrifice, and is read+ to consin his fate to his Ma-er, for his countr+ and his peopleN
#. )n the !erits of the Case K
5 vote to rant the Petition for Prohibition because, brushin aside the personalities of the parties involved, that is, the fact
that Benino A0uino, ;r. was a !e!ber of the "enate and a -nown leader of the )pposition at the ti!e !artial law was
proclai!ed and that President Ferdinand E. Marcos believes in the Rule of >aw not withstandin !artial rule, 5 a! called
upon at this !o!ent to la+ down a principle of law which will decide the fate, not onl+ of the present eneration but also
that of Filipinos still to be born. For the !ain 0uestion now at sta-e K whether or not !ilitar+ tribunals can tr+ and render
a verdict on ci4ilians for offenses alleedl+ co!!itted before or even durin !artial rule, notwithstandin the fact that civil
authorit+ is supre!e and civil courts are e7istin and functionin is supre!e and civil courts are e7istin and functionin
under the Constitution K raises before !+ e+es the rueso!e spectre of one, a hundred, a thousand civilian Filipinos
bein draed b+ the !iht+ ar! of the !ilitar+ before its own created and !anned tribunals, co!!issions, etc., for
offenses, real or i!ainar+, and tried and sentenced without the constitutional safeuards attendant to a trial b+ civil courts
8see paes %%*%$ of ;ustice 1eehan-ee2s )pinion for these safeuards:. 1rue it is, that the picture 5 con6ure before !e
!a+ not ta-e place at all under the present dispensation because President Ferdinand E. Marcos, as Co!!ander*in*
Chief of the Ar!ed Forces, is co!!itted to uphold the Constitution and, as 0uoted b+ ;ustice 1eehan-ee, believes in the
protection of the Bill of Rihts 8see pae $# of ;ustice 1eehan-ee2s )pinion:. But what about to!orrow, and the da+ after
to!orrow, when we shall all be one and the political at!osphere differentN >eal precepts which are to protect the basic
funda!ental rihts and liberties of an individual !ust be laid down not onl+ for the present but for all ti!es and for all
conditions. 1he Bill of Rihts !ust re!ain fir!, indestructible, and un+ieldin to all for!s of pressure, for li?e "o&nt Sinai
of "oses it can 5e the only ref&ge of a people in any cr&ci5le they -ay s&ffer in the co&rse of their destiny.


S)*a+a,) O*-%-o%.
CASTRO, J., concurrin and dissentinB
5 a! constrained to write this concurrin and dissentin opinion because 8a: althouh 5 substantiall+ aree with ;ustice
Feli7 M. Antonio2s forthriht discussion and learned resolution of the inescapable issues posed b+ the petition and the
supple!ental petitions filed b+ the petitioner Benino ". A0uino, ;r., 5 disaree with his approbation of the ?riht? of total
waiver clai!ed b+ the petitioner, and 8b,: 5 desire to e7press !+ views on !atters which, althouh in a sense peripheral
and not s0uarel+ in issue, are nevertheless coent and pertinent to the central issues at bar.
%. At the threshold, 5 !ust state that 5 voted to den+ the petitioner A0uino2s !otion to withdraw his petitions and all related
!otions and incidents, for the self*sa!e reasons that i!pelled !+ vote to den+ ;ose <. =io-no2s !otion to withdraw his
petition in the Martial >aw cases 8A0uino, et al. vs. Enrile, et al., >*$//49, and other allied cases.*: >i-e in the cases 6ust
adverted to, there are in the case at bar considerations and issues of transcendental and rave i!port, and 5 apprehend
that reat disservice !a+ be caused to the national interest if these are not resolved on the !erits.
#. 5 a! hard put to understand how and wh+ the petitioner2s counsels con6ured the aru!ent that under the Bill of Rihts
the ?due process? accorded to persons accused in cri!inal cases conte!plates onl+ 6udicial process. 1his aru!ent runs
s0uarel+ athwart the ti!e*honored doctrine in the Philippines as well as in the @nited "tates K a doctrine that the
petitioner2s counsels !ust surel+ be aware of that due process in cri!inal trials !a+ co!prehend not onl+ 6udicial process,
but also e7ecutive process 8and even leislative process in the proper cases:.
$. Corollaril+ to this contention of the petitioner, the further thesis is advanced that his trial b+ a !ilitar+ co!!ission denies
hi! due process because he is deprived of the riht of appeal. 5t see!s rather ele!entar+ that the riht of appeal, unless
the Constitution e7pressl+ uarantees such riht, is !erel+ statutor+ and !a+ be withdrawn, !odified or altered at an+
ti!e K a principle that his counsels -now onl+ too well. Even an appeal to an inter!ediate colleiate appellate court or to
the "upre!e Court is not a riht under the Constitution unless an e7plicit uarantee can be found in the words thereof.
And as far as appeal is concerned, it is apparent that the petitioner2s counsels are not aware of the nu!ber of the levels of
review of a decision of conviction b+ a !ilitar+ co!!ission in our 6urisdiction. Four levels of review 8e0uivalent to four
levels of auto!atic appeal: are provided, na!el+B the first review b+ the "taff ;ude Advocate of the Chief of "taff 8who
appoints the !ilitar+ co!!ission:A the second review b+ a Board of Review of not less than three senior officers, of the
;ude Advocate (eneral2s "erviceA the third review b+ a Board of Review of not less than three senior officers of the
;ude Advocate (eneral2s "erviceA the third review b+ a Board of Militar+ Review actin for the "ecretar+ of National
=efense and consistin of not less than two law+er*officers of at least field ran-A and the fo&rth and final review b+ the
"ecretar+ of ;ustice for the President of the Philippines as Co!!ander*in Chief. 1hese four reviews are co!pulsor+A none
of the! !a+ be b+passed or dispensed with. And even if the "taff ;ude Advocate, the Board of Review, and the Board of
Militar+ Review all concur in the 6ud!ent of conviction and the sentence i!posed b+ the !ilitar+ co!!ission, the
"ecretar+ of ;ustice !a+ +et, if in his opinion the evidence so warrants, reco!!end to the President the ac0uittal or
e7oneration of the accused. "o that fro! arrain!ent b+ a !ilitar+ co!!ission to final action b+ the President, a !ini!u!
of thirteen presu!ptivel+ responsible individuals in different capacities are involved in the entire processB a !ilitar+
co!!ission of not less than five !e!bers, a "taff ;ude Advocate, a Board of Review of not less than three officers a
Board of Militar+ Review of not less than two officers, the "ecretar+ of ;ustice, and the President. 5 cannot accept the
petitioner2s inferential conclusion that all the twelve persons involved 8before the President ta-es final action: can be
dictated to, assu!in that the President is !inded to influence the!. 1he petitioner !a+ not be aware what the !ilitar+
co!!ission now e7istin have ac0uitted !an+ who have been accused before the!, and that convictions have been
reversed or !odified upon the reco!!endation of the reviewin officers and boards of officers
4. 1he petitioner !a-es the indict!ent that the !ilitar+ tribunals and the entire ;udiciar+ are, to paraphrase hi!, well
under the thu!b of the President of the Philippines. 5 0uote his e7act wordsB ?Mr. Marcos is the sinle enius, co!posin
and directin all the proceedins, whether in the !ilitar+ tribunal or in the civil courts... HandI has destro+ed the
independence of the civil courts..... 1rials b+ civil courts would still be a travest+ of 6ustice....? 1his accusation is doubtless
ver+ serious, but 5 sa+ that it is a ravel+ irresponsible one. 1o declare or i!pl+ that the entire ;udiciar+, fro! the Chief
;ustice and Associate ;ustices of the "upre!e Court down to the last !unicipal 6ude, is under dictation b+ the President,
is an indict!ent that can co!e onl+ fro! a person who does not -now whereof he spea-s. 5f the petitioner has no faith in
!ilitar+ 6ustice and at the sa!e ti!e professes absolute lac- of faith in the ;udiciar+, does this !ean that the petitioner is
so !aicall+ endowed that onl+ he and he alone is capable of !etin out 6ustice in this countr+N 1he over*all wor-load of
all the courts in the Philippines has increased i!!easurabl+. 5f this does not indubitabl+ indicate the faith of the people in
the ;udiciar+ then 5 do not -now what does. 5f the petitioner does not share the faith of the people in the ;udiciar+, we !ust
loo- to reasons other than the ostensible ones for his irresponsible and reprehensible state!ents. 1o !+ !ind these
reasons are obvious and need not be belabored.
/. )n the !atter of whether the petitioner has what he clai!s is a ?riht of total waiver? of his presence in the proceedins
before the !ilitar+ co!!ission, 5 confess that the basis for such view escapes !e. 1he trouble with the advocac+ of the
so*called ?riht? of total waiver is that it places undue and inordinate stress on the ?rihts? of the individual and co!pletel+
refuses to reconi,e that the "tate, too, has its own rihts and duties. 5 do not believe that there can be an+ debate on the
riht and obliation of the "tate to ad!inister 6ustice properl+. Part and parcel of this riht and obliation is the riht of a
tribunal, whether 6udicial or e7ecutive, to satisf+ itself that the person who! it !a+ later convict upon the evidence is the
accused pointed to b+ the e+e*witnesses for the prosecution. Because if the witnesses point to F, and the accused
actuall+ happens to be J, the court of tribunal has, in conscience, no recourse but to absolve J. For, the proper
identification of the accused is the ver+ 1&intessence and sine 1&a non of an+ valid prosecution, is the ver+ f&nda-ental
of d&e process in an+ cri!inal trial. "urel+, if the co!!ission is to dischare its burden conscientiousl+, it cannot be
denied the riht to deter!ine for itself the proper identit+ of the person who stands accused before it. 1his riht has
absolute pri!ac+ over what the petitioner calls his ?riht? of total waiver of his presence.
)f course, in this particular case of the petitioner, it could be arued that he is a national fiure and therefore is -nown b+
ever+bod+. But 5 challene the correctness of this postulate. For can it not possibl+ happen that a !e!ber of the tr+in
tribunal !a+ have heard of Benino ". A0uino, ;r., the for!er (overnor of 1arlac and for!er "enator, but !a+ have never
actuall+ seen hi! beforeN 5dentification is essentiall+ one of perception of siht and not a process of inference or strained
deductive reasonin. 5t !a+ be correct to infer fro! the declarations in court of witnesses for the prosecution who refer to
a Benino ". A0uino, ;r., for!er (overnor of 1arlac and for!er "enator, that the person referred to is the petitioner, but
this cannot thereb+ foreclose the petitioner fro! later challenin the validit+ of his conviction 8if he is convicted: upon the
round that not one of the prosecution witnesses pointed to hi! as the indicted Benino ". A0uino, ;r.
M+ understandin of the provisions of the new Constitution on waiver of presence in cri!inal proceedins is that such
waiver !a+ be validl+ i!plied principall+ in cases where the accused has 6u!ped ban or has escaped, but certainl+ !a+
not he asserted as a !atter of absolute riht in cases where the accused is in custod+ and his identification is needed in
the course of the proceedins.
And what of the reviews to be conducted b+ the "taff ;ude Advocate of the Chief of "taff, the Board of Review, the Board
of Militar+ Review, and the "ecretar+ of ;usticeN 5s it not the bounden dut+ of these individuals, sinl+ and collectivel+, to
satisf+ the!selves be+ond cavil at the outset of review that the person convicted b+ the co!!ission is the accused
na!ed in the chares and that he was identified properl+ b+ the e+ewitnesses for the prosecutionN
1hus, 5 voted for 1&alified 2ai4erB the accused !a+ valve his presence in the cri!inal proceedins e7cept at the staes
where identification of his person b+ the prosecution witnesses is necessar+. 5 !iht aree to the proposition of ?total?
waiver in an+ case 2here the acc&sed agrees explicitly and &ne1&i4ocally in 2riting signed 5y hi- or personally -anifests
clearly and ind&5ita5ly in open co&rt and s&ch -anifestation is recorded, that whenever a prosecution witness !entions a
na!e b+ which the accused is -nown, the witness is referrin to hi! and to no one else.
<hat is disturbin is that because si7 ;ustices voted for ?total? waiver and onl+ five ;ustices voted for 0ualified waiver, the
6udes of all inferior courts would now be at a loss to deter!ine, in an+ iven situation, whether to ta-e the ?total? waiver
position or follow the 0ualified waiver doctrine K unless it be conceded that because the Court is divided and the ?total?
waiver theor+ fails to co!!and the assent of eiht ;ustices, the 0ualified waiver theor+ !ust be rearded as doctrinal law.
)therwise, each 6ude should be left to deter!ine, accordin to his conscience and the !ilieu of each case, what to do in
order to ad!inister 6ustice properl+.
Ac0uittal on a !ista-en identit+ basis has occurred in nu!berless instances all over the world. <hile it is true that the
Rules of Court provide that identit+ of na!e !eans identit+ of person, it is a well*-nown fact in this countr+ that there are
na!es so co!!on that !an+ persons carr+ the sa!e na!e. Especiall+ considerin that our population has bureoned
considerabl+, no one can den+ that there are !an+ persons b+ the na!e ;ose Cru,, !an+ b+ the na!e ;ose "antos,
!an+ b+ the na!e ;ose Re+es, ad infinit&-** 8which is ood enouh reason wh+ the President of the 5nterated Bar,
retired "upre!e Court ;ustice ;ose B.>. Re+es, has found it necessar+ to put the letters ?B? and ?>? between the na!es
?;ose? and ?Re+es,? and wh+ 5 have used the na!e ?Rui,? in !+ na!e in order that !+ identit+ will not be confused with
those of two other persons who are -nown b+ the na!e Fred Castro:.
9. =urin the deliberations on this case, there ca!e to the attention of the Court ru!ors and a!orphous bits of news to
the effect that the petitioner was on the vere of death because of his ?huner stri-e.? Curiousl+ and oddl+ enouh, none
of those who purve+ed the ru!ors ever thouht of sub!ittin to the Court a state!ent fro! the "ecretar+ of National
=efense as to the state of health of the petitioner. And because of this, there was a feelin on the part of the !e!bers of
the Court that the+ were bein sta!peded into decidin this case on the basis of the petitioner2s ?huner stri-e.? As far as
5 a! concerned, 5 did not thin- it advisable for the Court to re0uest the "ecretar+ of National =efense for such state!ent,
because 5 assu!ed that if the petitioner were indeed in a state where his death was i!!inent, his counsels would have
co!e forward with alacrit+ to infor! the Court accordinl+ and this, inspite of the petitioner2s !otion to withdraw which, at
the ti!e the ru!ors reached the Court, was still unresolved. 1o arue that because the petitioner had alread+ filed his
!otion to withdraw there was no !ore need for his counsels to ive the Court infor!ation reardin his supposedl+
deterioratin health, is to assu!e erroneousl+ that the Court would rant his !otion.
'. 5 here !a-e of record !+ considered view that the petitioner has deliberatel+ and calculatinl+ tried to utili,e the Court
as a foru! for his propaanda. First he said he preferred trial b+ the civil courts to trial b+ an+ !ilitar+ tribunal, but in the
ne7t breath he denounced the civil courts as ?lac-in in independence.? 1hen he filed a petition with the Court to stop the
proceedins before the !ilitar+ tribunalA shortl+ thereafter he !oved to withdraw it, sa+in that his re!edies had co!e
?too little and too late.? Ne7t he renounced the services of all his counsels, civilian and !ilitar+, +et his law+ers continued
to file pleadins in his behalf with the Court, visit hi! in his 0uarters, and assist hi! in the perpetuation proceedins
before the !ilitar+ co!!ission. 1hen his law+ers filed a !anifestation with the Court clai!in that the !ilitar+
co!!ission2s decision to co!pel hi! to appear was for the purpose of ?dehu!ani,in and hu!iliatin? hi!A but when the
Court, actin on his !anifestation, restrained the !ilitar+ co!!ission, he directed his law+ers to withdraw his petitions
before the Court, includin his pra+er for a te!porar+ restrainin order. .e infor!ed the newspapers that his ?huner
stri-e? was a protest aainst his co!pelled presence in the perpetuation proceedins, but when si7 ;ustices of the Court
voted for his ?riht? to ?total? waiver of his presence, he announced that he would attend the proceedins. All of these
develop!ents could indeed be read to !ean one or both of two thinsB that his ?huner stri-e? was, after all, perhaps not
0uite what it purported to be andDor that he has been triflin and continues to trifle with the !ilitar+ co!!ission and with
the Court.
C. 5f 5 were the petitioner, and 5 -now 5 a! innocent, there would appear to be no reason for !e not to face the
proceedins frontall+ and establish !+ innocence. 1his is not to i!pl+ that the petitioner is uilt+ of the charesA it is
!erel+ to stress that his behavior is hardl+ what perceptive people would e7pect fro! a !an who professes innocence. 5f
it is propaanda that is in the bac- of the head of the petitioner, 5 would thin- that the hihest*0ualit+ propaanda in his
favor is to establish his innocence of the chares soonest possible.
&. 5 would li-e to add !+ own e!phasis to the opinion written b+ ;ustice Antonio, b+ statin in capsule !+ considered
viewsB 8%: the President of the Philippines, b+ virtue of his procla!ation of !artial law 8 in sens& strictiore@, which the Court
has alread+ upheld as within the a!bit of his powers under the %&$/ and %&'$ Constitutions, has li-ewise the power to
orani,e !ilitar+ co!!issions in order to carr+ out the ob6ectives and purposes of !artial ruleA 8#: the !ilitar+
co!!issions created b+ authorit+ of the pertinent presidential decrees are leal as well as constitutional, as the said
presidential decrees have been e7pressl+ !ade part of the law of the land b+ the transitor+ provisions of the %&'$
ConstitutionA 8$: b+ tradition and histor+ as well as b+ the e7plicit provisions of the said valid presidential decrees, the
!ilitar+ co!!issions so created have 6urisdiction to tr+ civilians for offenses necessaril+ connected with the ob6ectives of
!artial law, whether these offenses were co!!itted prior to the institution of !artial rule or subse0uent thereto and this
inspite of the fact that the civil courts are open and functioninA 84: the clai! of the petitioner that because the offenses
with which he is chared were, in point of ti!e, alleedl+ co!!itted prior to the declaration of !artial law the+ !a+ not be
ta-en coni,ance of b+ a !ilitar+ co!!ission, inores one inescapable basic fact, and this is that the cri!es i!puted to
hi! are a!on the cri!es that ave cause for the institution of !artial ruleA 8/: the aru!ent of the petitioner that the
Constitution, in providin for due process in cri!inal trials, can !ean onl+ trial b+ 6udicial courts, not onl+ de!onstrates the
petitioner2s !isunderstandin or !isreadin of !ilitar+ traditions in civili,ed countries throuhout the aes but as well
foists an interpretation of the Constitution not warranted b+ its phraseolo+ A 89: well*i!bedded in our 6urisprudence is the
reconition that 6ustice can be ad!inistered fairl+ b+ !ilitar+ tribunalsA and 8': the power of the "upre!e Court to review
death sentences does not include the power to review death sentences i!posed b+ !ilitar+ tribunals.
%3. 5n view, of all that 5 have above stated, and especiall+ in the liht of !+ considered opinion that the !ilitar+
co!!issions now in e7istence have 6urisdiction to tr+ civilians, 6udicial restraint effectivel+ precludes !e fro! e7pressin
!+ views on whether the President should transfer the case of the petitioner to a civil court for trial. Finall+, it is !+ abidin
conviction that the President will do, within the intend!ent of his sacred oath of office, what he believes is 6ust for the
petitioner and, loicall+, also for ever+one else si!ilarl+ situated.
"a?asiar, sg&erra, Concepcion, Jr. and "artin, JJ., conc&r.;<2ph=;.ñ>t
#ERNAN$O, J., concurrin and dissentinB
As was !ade, clear at the openin of the learned and co!prehensive, abl+*penned decision of the Court throuh ;ustice
Antonio, 5 a! for the rantin of petitioner2s !otion for withdrawal. M+ brethren had thouht otherwise and conse0uentl+
did proceed to discuss the !erits of the issues raised. <hile aain 5 would vote for the transfer of the cri!inal chares
aainst petitioner to civil courts, it does not !ean that 5 a! in total disaree!ent. Nonetheless, there !a+ be a need for a
brief e7pression of opinion on !+ part as a !ere for!al concurrence on so!e of the points discussed !a+ for so!e i!pl+
an identit+ of thouht lur-in dor!ant and concealed. 5t is better to avoid an+ !isunderstandin. Moreover, at least to !+
!ind, it would !a-e even !ore apparent the truth that there can be no such thin as co!plete ob6ectivit+ in constitutional
law, a field where there are no absolutes, ever+ constitutional 0uestion involvin a balancin of co!petin values. 5t !a+
also serve, hopefull+, to illustrate that orthodo7+ in 6uridical thouht is not per se antithetical to the professed ai!s of an
innovative leal order. 5t ives !e an opportunit+ li-ewise to ac-nowlede the neat and loical pattern to the decision that
strenthens its plausibilit+. 1he principles of law announced flow fro! the basic pre!ise of the stern necessities of !artial
law. <hat bothers !e is that fro! the standpoint of tried and tested concepts in constitutional law, there would see! to be
a need for further refine!ent as to the scope of such doctrines and for clarif+in differentiation. 1hat, for !e at least,
would have been desirable. 1he apprehension is entertained that as worded in a rather all*enco!assin !anner, the+
!a+ +ield the i!pression of a total surrender to the pressure of events and the de!ands of the ti!es. Candor thouh
co!pels the ad!ission that in the final anal+sis 6uridical theories cannot afford to be insensible to political and social
realities. Now for the rounds of !+ concurrence and !+ dissent.
%. 5n the belief that petitioner2s !otion to withdraw should be ranted, 5 a! co!pelled to dissent. 1his is with due
reconition of the principle that the Court is vested with discretion to rant or refuse such a plea. 1his notwithstandin, 5
a! full+ persuaded that the !ore appropriate response is one of accedin to petitioner2s pra+er that all cases filed on his
behalf in this Court be ter!inated. 1he assu!ption !ust be that before he did arrive at such a conclusion, he had weihed
with care and circu!spection all the relevant aspects of the situation. 5t could ver+ well be that he was pro!pted to ta-e
such a !ove to avoid further an7iet+ and worr+ on his part, considerin that the ulti!ate outco!e could belie e7pectations
and frustrate hopes. At an+ rate, with his !ind thus !ade up and without an+ co!pellin reason, in !+ !ind, for the Court
to -eep the case in the doc-et, the discretion should be e7ercised in his favor. Nor does the fact that he used rather harsh
lanuae in the reasons iven b+ hi! for his !otion of withdrawal !ilitate aainst his plea. 1here !ust be !ore
understandin shown for the state of his ph+sical and !ental health after this lon period of confine!ent, and of late of his
deprivin hi!self of the dail+ sustenance. <hat is !ore, the cuttin ede of his sharp and pointed words !a+ be blunted
b+ the perfor!ance of this Court, which in the ulti!ate anal+sis is the ulti!ate criterion as to whether or not it has
ade0uatel+ dischared its responsibilities or lived up to the trust reposed in it. 1he 6ud!ent is for the entire constituenc+
of infor!ed and concerned citi,ens, not of petitioner alone. As for an+ individual ;ustice, 5 would assu!e that what !atters
!ost is the verdict of his conscience.
#. Now as to the nature of !+ concurrence which has to be further 0ualified. Riht at the outset, !a+ 5 !a-e clear that 5
6oin !+ brethren onl+ to the e7tent that the conclusion arrived at b+ the! confor!s to what 5 had previousl+ e7pressed in
!+ separate opinions in A1&ino 4. !once nrile
1
and A1&ino 4. Co--ission on lections.
!
5t follows that where the
opinion of the Court reflects the stand 5 too-, 5 a! in aree!ent. More specificall+, on the 0uestion of the scope of the
co!petence of a !ilitar+ co!!ission, 5 would predicate !+ vote on the constitutional provision that affi7es to (eneral
)rders Nos. C, %#, and $& the status of bein ?part of the law of the land.?
3
<ith due reconition of the vior with which
counsel for petitioner had pressed the point that such a character cannot be i!pressed on the aforesaid eneral orders if
found in conflict with the present Constitution, 5 still find difficult+ in accordin co!plete acceptance to such a view. 1o do
so in !+ opinion would !ean closin one2s e+es to what was intended b+ the %&'% Constitutional Convention insofar as it
did provide for the continued e7istence of a !ilitar+ co!!ission with such powers as were then e7ercised. 1his is not to
i!pl+ thouh that in no case !a+ a Presidential procla!ation, order, decree, or instruction be challened in appropriate
suits for lac- of confor!it+ to a specific provision found in the present Constitution.
$. 5t is to be stressed further that were it not for the above !andate of the 1ransitor+ Provisions, the sub!ission of
petitioner as to a !ilitar+ co!!ission bein devoid of 6urisdiction over civilians elicits approval. 1he controllin principle, to
!+ !ind, is that supplied in the opinion of the @nited "tates "upre!e Court in :&ncan 4. 9ahana-o?&,
4
a decision
i!pressed with the reatest relevance inas!uch as it interpreted the specific section found in the .awaiian )ranic Act,
5
which was also a feature of the Philippine Autono!+ Act,
6
the source of the !artial law provision in the %&$/ Constitution.
7
As set forth in the :&ncan opinion penned b+ ;ustice Blac-B ?)ur 0uestion does not involve the well established power of
the !ilitar+ to e7ercise 6urisdiction over !e!bers of the ar!ed forces, those directl+ connected with such forces, or
ene!+ bellierents, prisoners of war, or others chared with violatin the laws of war. <e are not concerned with the
reconi,ed power of the !ilitar+ to tr+ civilians in tribunals established as a part of a te!porar+ !ilitar+ overn!ent over
occupied ene!+ territor+ or territor+ reained fro! an ene!+ where civilian overn!ent cannot and does not function. For
.awaii since anne7ation has been held b+ and lo+al to the @nited "tates. Nor need we here consider the power of the
!ilitar+ si!pl+ to arrest and detain civilians interferin with a necessar+ !ilitar+ function at a ti!e of turbulence and
daner fro! insurrection or war. And finall+, there was no speciali,ed effort of the !ilitar+, here, to enforce orders which
related onl+ to !ilitar+ functions, such as, for illustration, curfew rules or blac-outs.?
'
5 see nothin in "oyer 4. !ea5ody 9
that in an+ wa+ runs counter to the above su!!ar+ of the scope of the power of !ilitar+ tribunals. 1hat was an action, as
pointed out b+ ;ustice .ol!es, ?brouht b+ the plaintiff in error aainst the for!er overnor of the state of Colorado, the
for!er ad6utant eneral of the national uard of the sa!e state, and a captain of a co!pan+ of the national uard, for an
i!prison!ent of the plaintiff b+ the! while in office.?
1(
1hen ca!e this portion of the opinionB ?1he co!plaint allees that
the i!prison!ent was continued fro! the !ornin of March $3, %&34, to the afternoon of ;une %/, and that the
defendants 6ustified under the Constitution of Colorado, !a-in the overnor co!!ander in chief of the state forces, and
ivin hi! power to call the! out to e7ecute laws, suppress insurrection, and repel invasion. 5t allees that his
i!prison!ent was without probable cause, that no co!plaint was filed aainst the plaintiff, and that 8in that sense: he was
prevented fro! havin access to the courts of the state, althouh the+ were open durin the whole ti!e but it sets out
proceedins on habeas corpus, instituted b+ hi! before the supre!e court of the state, in which that court refused to
ad!it hi! to bail and ulti!atel+ dischared the writ. $/ Colo. %/4, &% Pac. '$C, and $/ Colo %/&, %# >.R.A. 8N.".: &'&,
%%' A!. "t. Rep. %C&, C/ Pac. %&3. 5n those proceedins it appeared that the overnor, had declared a count+ to be in a
state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff should be arrested as
a leader of the outbrea-, and should be detained until he could be dischared with safet+, and that then he should be
delivered to the civil authorities, to be dealt with accordin to law.?
11
Plaintiff in error would hold the (overnor liable for his
order of detention in the course of suppressin an insurrection. As the case was dis!issed on de!urrer b+ the Circuit
Court, it was elevated to the @nited "tates "upre!e Court. 5n affir!in the 6ud!ent, ;ustice .ol!es cateoricall+ statedB
?<hen it co!es to a decision b+ the head of the state upon a !atter involvin its life, the ordinar+ rihts of individuals
!ust +ield to what he dee!s the necessities of the !o!ent. Public daner warrants the substitution of e7ecution process
for 6udicial process. "ee Leel+ v. "anders, && @.". 44%, 449, #/ >. ed. $#', $#C. 1his was ad!itted with reard to -illin
!en in the actual clash of ar!sA and we thin- it obvious, althouh it was disputed, that the sa!e is true of te!porar+
detention to prevent apprehended har!.?
1!
5t does appear to !e then, and this 5 sa+ with due respect, that it is a rather
forced interpretation to e7tract fro! the above e7plicit declaration of ;ustice .ol!es the !eanin that !ilitar+ tribunals are
vested with 6urisdiction over civilians. <hat was involved was a detention, not a trial. @nder the view 5 entertain that
:&ncan 4. 9ahana-o?& supplies the applicable principle under the %&$/ Constitution, the citations fro! 6inthrop and
Fair-an found in the opinion of the Court are, for !e, less than persuasive.
13
<hat co!pels concurrence on !+ part, to
repeat, is ?the law of the land? section found in the 1ransitor+ Provisions. Absent that provision, 5 would be unable to +ield
to the conclusion reached b+ !+ brethren on the 0uestion of 6urisdiction.
4. 1he reconition i!plicit in the above constitutional precept as to the co!petence of a !ilitar+ co!!ission to conduct
cri!inal trials of certain specified offenses, to !+ !ind, carries with it the dut+ to respect all the constitutional rihts of an
accused. 5t is fro! that perspective that a discussion of the due process uarantee ains sinificance. 5t has a connotation
both substantive and procedural. As to the latter aspect, it is true that it has at its core, to follow the classic for!ulation of
<ebster, the re0uire!ent of a hearin before conde!nation and a process of rational in0uir+, but it has a !uch wider
radiation e7tendin to all the leal safeuards en6o+ed b+ a person indicted for an offense. "o it has co!e to be in the
@nited "tates, where it is dee!ed to include the riht to be free fro! unreasonable searches and sei,ures and to have
e7cluded fro! cri!inal trials an+ evidence illeall+ sei,edA
14
the riht to be free of co!pelled self*incri!ination,
15
the riht
to counsel,
16
the riht to a speed+
17
and public
1'
trial, to confrontation of opposin witnesses,
19
to co!pulsor+ process for
obtainin witnesses,
!(
the riht to a 6ur+ trial,
!1
and the riht aainst double 6eopard+.
!!
"uch an approach is not
unconenial in our 6urisdiction.
!3
A related !atter is the 0uestion of due process and preli!inar+ investiation. 5 have !+
reservations as to the tone of certitude in the opinion of the court concernin the latter2s bein bereft of an+ constitutional
sinificance. 5t was the rulin in !eople 4. Sierra
!4
that ?the principle uninterruptedl+ adhered to HisI that onl+ where an
accused is held to answer a cri!inal offense in an arbitrar+ or oppressive !anner is there a disreard thereof. 1he
re0uire!ent of the proceedin not bein un6ust or unreasonable !ust be !et. 1his is not to rule out cases where such
infir!it+ could be predicated on a showin that the disreard of this procedural safeuard did infect the prosecution with
unfairness. 5n that sense, what was held in !eople 4. "onton as to such a failin nullif+in the proceedin because of the
due process protection could still be conceivabl+ relied
upon.?
!5
1hus we co!e to what for !e is the crucial issue posed, labeled ?the principal 0uestion? in the !e!orandu! of
petitioner. .e would invo-e the hihl+*pri,ed ideal in ad6udication announced in G&tierrez, li-ewise a due process
re0uire!ent, that a part+ to a trial ?is entitled to nothin less than the cold neutralit+ of an i!partial 6ude.?
!6
.is fears, not
devoid of plausibilit+, proceed fro! respondent Co!!ission havin been ?created b+ the President2s )rder and sub6ect to
his control and direction? bein unable to inore his characteri,ation that the evidence aainst petitioner was ?not onl+
stron HbutI overwhel!in.?
!7
5t is to that i!placable tenet of ob6ectivit+ and neutralit+, one of constitutional di!ension, that
appeal is !ade. For G&tierrez has been followed subse0uentl+ in an unbro-en line of decisions with an i!pressive
concord of opinion.
!'
1hat for petitioner is to buttress a stand that !irrors the realities, to reinforce the solidit+ of his
position. For was it not "toessiner who pointed out that there !a+ be at ti!es a tendenc+ difficult to resist in subordinate
!ilitar+ aencies to view !atters in the liht supplied b+ previous pronounce!ents of those hiher up in the ran-s and to
respond to situations less on the basis of e!pirical evidence but !ore on that of confor!it+ to a position officiall+ ta-en. 5
do not have to o that far. 1here is acceptance on !+ part that, as the opinion of the Court states, respondent !ilitar+
co!!ission !a+ be trusted to be fair and that at an+ rate there are still various appeals in the offin. 1hus there are built*
in defenses aainst an+ erroneous or unfair 6ud!ent. 1here is, however, this other point to consider. For the G&tierrez
rulin as now interpreted does not onl+ uard aainst the realit+ but li-ewise the appearance of partialit+. 1hat would
arue stronl+ for the transfer of the trial of the cri!inal chares aainst petitioner to civil courts. Nor would he be the onl+
one thereb+ benefited. Respondent Co!!ission would be spared fro! proceedin with a case where fro! the start, in
view of the peculiar circu!stances, its 5ona fides had been open to 0uestion, althouh ad!ittedl+ lac-in factual
foundation. 1he President li-ewise would be absolved fro! an+ adverse, if unfounded, criticis!. 1he reatest ain of
course would be for the ad!inistration of 6ustice. 1here is relevance to this e7cerpt fro! !alang 4. AosaB
!9
?1his voluntar+
inhibition b+ respondent ;ude is to be co!!ended. .e has lived up to what is e7pected of occupants of the bench. 1he
public faith in the i!partial ad!inistration of 6ustice is thus reinforced. 5t is not enouh that the+ decide cases without bias
and favoritis!. 5t does not suffice that the+ in fact rid the!selves of pre*possessions. 1heir actuation !ust inspire that
belief. 1his is an instance where appearance is 6ust as i!portant as the realit+. >i-e Caesar2s wife, a 6ude !ust not onl+
be pure but be+ond suspicion. At least, that is an ideal worth strivin for. <hat is !ore, there is deference to the due
process !andate.?
3(
Necessaril+ then, there is co!plete acceptance on !+ part of the thouht e7pressed in the opinion of
the Court that the President is not precluded fro! pursuin further a notion previousl+ e7pressed b+ hi! concernin the
possible transfer of the proceedins aainst petitioner to the civil courts.
9. A few words !ore. 5t is to be ad!itted that in copin with the urencies of the ti!es, in accordance with what is
ordained b+ the funda!ental law and thus have its pro!ise fulfilled, this Court is co!pelled to enter a do!ain !uch less
clearl+ !apped out than before. 5t has to find its wa+ as best it can with the liht supplied b+ applicable precedents and
the pro!ptins of reason at ti!es rendered obscure b+ the clouds of the e!erenc+ conditions. Moreover, there !ust be
an awareness that the co!ple7ities of an era !a+ not +ield to the si!plicities of a constitutional funda!entalis! as well as
of the pitfalls of !erel+ doctrinaire interpretations. 5t cannot appl+ precepts with infle7ible riidit+ to fast*chanin
situations. 1he notion of law in flu7 carries it far indeed fro! a fi7ed !oorin in certaint+. 1here !ust be, it cannot be
denied, reater sensitivit+ to the shifts in approach called for b+ the troubled present. Nonetheless, to paraphrase
Cardo,o, care is to be ta-en lest ti!e*tested doctrines !a+ shrivel in the effulence of the overpowerin ra+s of !artial
rule. 1here !ust be an effort to re!ain consistent with the old althouh relevant to the new. 5t is !+ view that thereb+
there is fidelit+ to the concept of the Constitution not onl+ as a broad charter of powers to resolve conflictin issues and
social proble!s, a !eans of orderin the life of the nation in ti!es of nor!alc+ as well as of crisis, but also as a citadel of
civil liberties.
TEE"AN/EE, J, dissentinB
1his opinion for the rantin of petitioner2s withdrawal !otion and in view of its denial, for the rantin of the writ of
prohibition aainst respondent !ilitar+ co!!ission as pra+ed for in the petition, is issued pursuant to the Court2s
Resolution of April #/,%&'/, which ruled as followsB t.ñ./0h123/
... 1he Court, b+ a vote of seven to three, Resolved to =ENJ petitioner2s !otion for withdrawal of the
petition and of all !otions and incidents related thereto. Castro, Barredo, Antonio, Esuerra, A0uino,
Concepcion, ;r. and Martin, ;;., voted to den+ the !otionA Fernando, 1eehan-ee and MuEo, Pal!a, ;;.,
voted to rant the !otion.
1here bein no sufficient votes to declare that the respondent Militar+ Co!!ission is without 6urisdiction
over the pendin cri!inal cases filed aainst the petitioner and that it acted with rave abuse of discretion
in conductin the perpetuation of testi!on+ proceedins, the Court Resolved to lift, effective i!!ediatel+,
the restrainin order issued on April C, %&'/. 1eehan-ee and MuEo, Pal!a, ;;., voted to !aintain the
restrainin order.
)n the 0uestion of waiver of the presence of the petitioner in the perpetuation of testi!on+ proceedins,
Fernando, 1eehan-ee, Barredo, Antonio, MuEo, Pal!a and A0uino, ;;., voted in favor of upholdin the
petitioner2s riht of total waiver of his presenceA Castro, Esuerra, Concepcion, ;r. and Martin, ;;., voted
in favor of 0ualified waiver, that is, that the accused could waive his presence e7cept in the instances
where such presence is needed for his identification b+ the prosecution witnesses.
1he e7tended reasoned resolution or decision and the separate e7tended reasoned concurrin andDor
dissentin opinions will be released ne7t wee-.
Ma-alintal, C.;., too- no part for bein a part+ respondent.A Ma-asiar. ;., is on leave.
5. 5 vote for the rantin of petitioner2s !otion to withdraw his petition and all other pendin !otions and !atters. 1o
paraphrase and cite the Chief ;ustice2s reasons in castin a vote for rantin a si!ilar !otion for withdrawal of petition
filed b+ for!er ;ose <. =io-no in the .abeas Corpus cases
1
8which was also defeated for lac- of necessar+ votes:, such
withdrawal would not e!asculate the ?issues of para!ount public interest? that need to be resolved 8as invo-ed b+ the
!a6orit+: for the+ !a+ be dul+ resolved in the other cases which re!ain pendin, such as the earlier and urent lead case
of G&-a&a 4s. spino and "ilitary Co--ission ,o. B
!
which raises the sa!e funda!ental 0uestion of whether !ilitar+
tribunals have 6urisdiction to tr+ civilians 8wherein petitioner was sentenced on March %9, %&'$ to death b+ firin s0uad,
which sentence was affir!ed on "epte!ber #&, %&'$ b+ the President and which has lon been pendin decision:A and
since it is petitioner A0uino2s life and libert+ that are at sta-e, his choice to renounce his own petition 0uestionin the
6urisdiction of respondent !ilitar+ co!!ission to tr+ the cases filed aainst hi! and the subse0uent incidents and to
re!ove the case fro! this Court2s coni,ance should be respected ?reardless of the fact that 8one: disareed with !an+
of his reasons for so doin? since one ?could not escape a sense of iron+ in this Court2s turnin down the plea to
withdraw .... and then rulin adversel+ to hi! on the !erits of his petition.? 5t !a+ be added that since the !a6orit+ who
voted to den+ the withdrawal !otion nu!bers onl+ seven out of ten ;ustices ta-in part in the deliberations as of the date
of issuance of the Court2s Resolution of April #/, %&'/ which denied the !otion
3
the !a6orit+ opinion would fall short of the
re0uired nu!ber of eiht ;ustices to render a decision on the !erits.
4
1he "olicitor (eneral2s rounds for opposin
withdrawal are not persuasive. 5n his first opposition of April %4, %&'/ where he notes that petitioner ?has chosen to
dra!ati,e his protest b+ stain a huner stri-e. Petitioner2s !otion is thus silentl+ elo0uent in its avoidance of the
reasons for 8withdrawal:,? his pra+er that ?if the petitioner2s !otion is ranted, it should be with pre6udice,? is inconsistent
with his posture that the petition is pre!ature and with the fact that the chares aainst petitioner are still pendin
reinvestiation as ordered b+ the President. 5n his second opposition of April %9, %&'/, he avers that the (overn!ent
?see-s onl+ to present the evidence supportin the chares of !urder, illeal possession of firear!s and subversion
aainst the petitioner,? and if this be so, petitioner2s withdrawal of his petition at bar precisel+ clears the wa+ of all 6udicial
obstacles for the prosecution to do so.
Petitioner2s withdrawal should be properl+ ranted in pursuance of the established principle that the 6udicial power is
e7ercised onl+ when necessar+ for the resolution of an actual case and controvers+, particularl+ in view of the
respondents2 stand in their answer that the petition has been pre!aturel+ filed.
;udicial abstention then would provide the Court with ti!e and opportunit+ to ponder and deliberate on the basic
constitutional 0uestions involved and their ra!ifications which concern inter alia the supre!ac+ of civilian authorit+ over
the !ilitar+, the riht of civilians to 6udicial process as aainst the e7ecutive process of !ilitar+ tribunals, the upholdin of
;udicial Power as vested b+ the Constitution in the "upre!e Court and in such inferior courts as !a+ be established b+
law and the reconition of the individual2s liberties as uaranteed b+ the Bill of Rihts even in a state of !artial law.
55. "ince the !a6orit+ has nevertheless resolved to o into the !erits of the case and the transcendental constitutional
issues, a brief state!ent of the factual bac-round is re0uired for the proper consideration of the issues on the !erits.
Petitioner 8after havin been served on Auust %% and %C, %&'$ at his detention 0uarters with copies of the si7 cri!inal
chares filed aainst hi! with respondent !ilitar+ co!!ission: filed on Auust #$, %&'$ his oriinal petition at bar for
prohibition 0uestionin the 6urisdiction of !ilitar+ tribunals in the absence of a state of war or bellierenc+ over civilians
li-e hi! particularl+, for civil offenses alleedl+ co!!itted before the procla!ation of !artial law and co!plainin of
violation of his constitutional rihts in that he was deprived of due process and the vested riht to preli!inar+ investiation
as provided b+ law and the assistance of counsel with riht to cross*e7a!ine the witnesses aainst hi!.
Petitioner further alleed that the !ilitar+ tribunals are !ere instru!ents and sub6ect to the control of the President as
created b+ hi! under the (eneral )rders issued b+ hi! as Co!!ander*in*Chief of the Ar!ed Forces of the Philippines,
5
and that he had alread+ been publicl+ indicted and ad6uded uilt+ b+ the President of the chares in a nationwide press
conference held on Auust #4, %&'%, followin the Pla,a Miranda bo!bin of Auust #%, %&'% and the suspension of the
privilee of the writ of habeas corpus under Procla!ation No. CC& on Auust #$, %&'%.
1he Court set an urent preli!inar+ hearin on Auust #9, %&'$ 8a "unda+: on the 0uestion of whether with its
!e!bership then on onl+ nine 8&: ;ustices, it had the re0uired 1&or&- to ta-e coni,ance of the petition. No further action
was ta-en b+ the Court for followin petitioner2s refusal to participate in the arrain!ent and trial set on Auust #', %&'$,
the President issued on Auust #C, %&'$ Ad!inistrative )rder No. $//, creatin a special five*!e!ber co!!ittee to
?reinvestiate the chares aainst Benino ". A0uino, ;r. and others,? co!posed of a retired "upre!e Court ;ustice to be
desinated b+ the Chief ;ustice as chair!an and four !e!bers to be desinated respectivel+, b+ the accused*petitioner
hi!self, the president of the 5nterated Bar of the Philippines, the "ecretar+ of ;ustice and the "ecretar+ of National
=efense, with the proviso that ?should the accused decline to desinate a representative to the co!!ittee, the Chief
;ustice shall desinate so!eone in his stead and e7pressl+ statin the followin pre!ises and ob6ectivesB t.ñ./0h123/
<.EREA", Benino ". A0uino, ;r. and his Counsel have repeatedl+ co!plained, orall+ and in writin that
the accused has been denied his constit&tional right to d&e process and have openl+ 0uestioned the
reularit+ and fairness of the application to hi! of the established procedure sanctioned b+ law and
practiceA
<.EREA", althouh the Prosecution "taff is assu!ed to have conducted a fair and i-partial initial
in4estigation, it is desirable to reassure the accused that he contin&es to enCoy his constit&tional right to
d&e process and to re-o4e any do&5t whatsoever in the !ind of an+bod+ that onl+ after findin a pri-a
facie case aainst hi! were chares filedA
<.EREA", it is necessar+ for the above purpose that a Co!!ittee be created to conduct a re*
investiation of said chares to de!onstrate that ever+thin is bein done to ins&re &t-ost fairness,
i-partiality and o5Cecti4ity in the prosecution of the chares aainst the accused and to deter-ine
2hether really there is reasona5le gro&nd to 5elie4e that the offenses charged 2ere in fact co--itted
and the acc&sed is pro5a5ly g&ilty thereof.
777 777 777
1he Co!!ittee shall convene i!!ediatel+, conduct the preli!inar+ investiation in the !ost e7peditious
!anner and sub!it its findins to the "ecretar+ of ;ustice.
1o prevent a failure or dela+ of 6ustice, an+ testi!onial evidence presented before the Co!!ittee !a+ be
used in an+ proceedin or action before an+ court or tribunal, civil or !ilitar+, without need of presentin
the witness or witnesses who testified in case such witness or witnesses ha4e died or left the co&ntry or
5eco-e &na5le to testify.
6
1he chares aainst petitioner and his co*accused were thus brouht bac- to the stae of preli!inar+ investiation. )n
Auust $3, %&'$, respondent !ilitar+ co!!ission !et and ordered that the hearin of the cases be postponed indefinitel+
to await the outco!e of the re*investiation ordered under the said Ad!inistrative )rder.
1he "ecretaries of ;ustice and of National =efense desinated their representatives. 1he Chief ;ustice as-ed retired
;ustice ;. B. >. Re+es, but the latter on Auust $%, %&'$ declined the desination and also declined as 5BP president to
desinate a representative to the special co!!ittee, on rounds of illealit+ of the order. Petitioner li-ewise declined to
desinate his representative.
Petitioner filed on "epte!ber /, %&'$ his first supple!ental petition to include these develop!ents and to insist that he be
ranted his riht to preli!inar+ investiation as prescribed b+ statutor+ law, to be conducted b+ the court of first instance
as far as the four chares of subversion under R.A. %'33 are concerned. 8)n )ctober $%, %&'$, Presidential =ecree No.
$#C a!endin P.=. No. $& prescribin the rules of procedure for !ilitar+ tribunals under !artial law was issued, providin
for the perpetuation of testi!on+ in cases pendin before !ilitar+ tribunals.:
No action was ta-en b+ the Court on this supple!ental petition until ;ul+ %%, %&'4 when it issued a resolution re0uirin an
answer thereto which was filed b+ the "olicitor (eneral on Auust #%, %&'4. )n )ctober $%, %&'4, petitioner filed a
second supple!ental petition citin the President2s state!ents to the world press on April %/, %&'4 and Auust %&, %&'4
on the ?actual re!oval? of !artial law and that ?technicall+ and leall+, !artial law was lifted with the ratification of the
Constitution last +ear 8%&'$:.? 1he "olicitor (eneral filed his answer thereto on =ece!ber %%, %&'4.
Me!oranda were filed b+ petitioner2s counsel and b+ the "olicitor (eneral on March #%, %&'/ and March %%, %&'/,
respectivel+.
Meanwhile, on March %3, %&'/, respondent !ilitar+ co!!ission issued ex parte its order rantin the prosecution2s
!otion of March ', %&'/ ?to e7a!ine and ta-e the deposition of its witnesses? on March $%, and April % * 4, %&'/ until
ter!inated for perpetuation purposes on the bare alleation that ?81:he petitions of the accused Benino ". A0uino, ;r.
pendin in the "upre!e Court will ta-e ti!e to resolve resultin in the dela+ of the perpetuation of the testi!onies of the
prosecution witnesses....?
Petitioner2s counsel filed on March #4, %&'/ an urent !otion to restrain respondent !ilitar+ co!!ission fro! holdin the
perpetuation proceedins on the rounds a!on others that the ver+ issue of its 6urisdiction to ta-e coni,ance of civil
offenses alleedl+ co!!itted before !artial law b+ civilians li-e petitioner was pendin with this Court and that such
proceedins would ?short*circuit? the "pecial Reinvestiatin Co!!ittee created under Ad!inistrative )rder No. $// even
before such co!!ittee has co!!enced its dut+ to deter!ine the e7istence of ?reasonable round to believe that the
offenses chared were in fact co!!itted and the accused is probabl+ uilt+ thereof? and ?whether or not petitioner should
be held for trial.?
7
)n April %, %&'/, this Court, then co!posed of ten !e!bers issued its resolution that it lac-ed the ?necessar+ 0uoru! to
act on petitioner2s said urent !otion.
)n April ', %&'/, petitioner2s counsel filed an urent !anifestation averrin that this Court without a 0ualified 0uoru!
could issue the te!porar+ restrainin order pra+ed for so as not to render the case !oot and apprisin this Court that
after respondent !ilitar+ co!!ission had on April %, %&'/ held, consistentl+ with lago 4s. !eople
'
that the perpetuation
proceedins are not a part of the trial and ranted petitioner2s re0uest to be returned to his detention 0uarters, rulin that
he could refuse to be present at the proceedins since he had e7pressl+ waived his presence, as allowed in P.=. No. $#C,
it reversed itself at the !ilitar+ prosecutor2s instance on April 4, %&'/ and now ruled that the perpetuation proceedins are
part of the trial and that petitioner !ust be present at the proceedins 8which would ta-e two to three !onths accordin to
the !ilitar+ prosecutor2s !anifestation: and that petitioner !ust be ph+sicall+ present throuhout the proceedins even
aainst his will.
Petitioner2s counsel further !anifested that petitioner2s re0uest to respondent !ilitar+ co!!ission to suspend the
proceedins for seven da+s to allow his counsel ti!e and opportunit+ to see- appropriate relief fro! this Court was
su!!aril+ denied and petitioner then delivered his state!ent that if denied this ?last basic riht of a hu!an bein ... to be
let alone? he would have no alternative ?but to o on a huner stri-e, as a for! of silent protest aainst a procedure that is
intended to hu!iliate and dehu!ani,e !e.?
1he perpetuation of testi!on+ proceedins thus co!!enced on April 4, %&'/ and continued on succeedin da+s with the
!ilitar+ prosecutor presentin as the first state witness Ben6a!in M. Bie, ;r. alias .u- Co!!ander Melod+, and with
petitioner bein co!pelled to be present throuhout the proceedins. 1his witness, Bie toether with another listed
witness Ben6a!in "anu+o alias .u- Co!!ander Pusa were oriinall+ co*accused with petitioner in four subversion
chares but the chares aainst the! were withdrawn under a ?nolle prose0ui? order issued b+ the "ecretar+ of National
=efense dated March %/, %&'/.
)n April C, %&'/, the Court ordered the issuance of a te!porar+ restrainin order en6oinin respondent !ilitar+
co!!ission fro! further proceedin with the perpetuation proceedins until the !atter is heard and further orders and set
petitioner2s urent !otion and related incidents for hearin on April %4, %&'/. 5t was at this hearin that petitioner2s
counsel presented the si!ple !otion to withdraw the petition and all other pendin !otions in co!pliance with the
petitioner2s e7press wish. 5n co!pliance with the Court2s instruction at the hearin to in0uire into petitioner2s reasons for
his withdrawal !otion, his counsel on the ne7t da+, April %/, %&'/, filed their !anifestation sub!ittin therewith petitioner2s
9* pae letter of April %4, %&'/ addressed to his wife, !other, relatives and friends statin his reasons therefor and for
continuin the huner stri-e? 8he: bean ten da+s ao,? inter alia, that ?8he: felt that the case 8he: had filed since %&'$ in
the "upre!e Court had beco!e !eaninlessA that he has decided to ?place 8his: fate and 8his: life s0uarel+ in the hands
of ... Mr. MarcosA? that ?1he !eanin and thrust of 8his: absence or presence, in the proceedins before the !ilitar+
tribunal? and he has sole!nl+ vowed to continue his huner stri-e as a protest aainstB ?%. the trial of civilians before
!ilitar+ tribunals . .A #. the lac- of 6udicial independence . . for as lon as our 6udes re!ain casuals2. .A $. the absence of a
enuine free press ... A 8and: 4. the further continuance of !artial law and its evils and repressions....?
555. 1he transcendental character of the constitutional issues raised, dealin as the+ do with the individual2s funda!ental
liberties as uaranteed b+ the Bill of Rihts even in a state of !artial law which concededl+ is ?not a !ilitar+ ta-eover of
civil overn!ent functions? 9 and reconi,ed under the %&'$ Constitution to which all have pleded lo+alt+ and wherein
we are now called upon to dischare the 6udiciar+2s reat burden of definin its constitutional boundaries, co!pels !+
vote on the !erits which 5 cast for the rantin of the writ of prohibition pra+ed for aainst respondent !ilitar+ co!!ission
for the reasons and considerations which are hereinbelow respectfull+ sub!itted.
%. Civilians li-e petitioner placed on trial for civil offenses under eneral law are entitled to trial b+ 6udicial process, not b+
e7ecutive or !ilitar+ process. ;udicial power is vested b+ the Constitution e7clusivel+ in the "upre!e Court and in such
inferior courts as are dul+ established b+ law.
1(
;udicial power e7ists onl+ in the courts, which have ?e7clusive power to
hear and deter!ine those !atters which affect the life or libert+ or propert+ of a citi,en.?
11

Militar+ co!!ission or tribunals are ad!ittedl+ not courts and do not for! part of the 6udicial s+ste!. As further ad!itted
b+ the "olicitor (eneral in his answer
1!
, ?!ilitar+ co!!issions are authori,ed to e7ercise 6urisdiction over t2o classes of
offenses, whether co!!itted b+ ci4ilians or b+ -ilitary personnel either 8a: in the ene-y7s co&ntry d&ring its occ&pation b+
an ar!+ and while it re!ains under -ilitary go4ern-ent or 8b: in the localit+, not within the ene!+2s countr+, in which
-artial la2 has been established b+ co!petent authorit+. 1he classes of offenses are 8a: 4iolation of the la2s and
c&sto-s of 2ar and 8b: ci4il cri-es, which 5eca&se the ci4il co&rts are closed or their functions suspended or li!ited,
cannot be ta-en coni,ance of b+ the ordinar+ tribunals.?
"ince we are not ene!+*occupied territor+ nor are we under a !ilitar+ overn!ent and even on the pre!ise that !artial
law continues in force, the !ilitar+ tribunals cannot tr+ and e7ercise 6urisdiction over civilians for civil offenses co!!itted
b+ the! which are properl+ coni,able b+ the civil courts that have re!ained open and have been reularl+ functionin.
13
5n the leadin case of :&ncan 4s. 9ahana-o?&,
14
the @.". "upre!e Court held in settin aside the prison sentences
i!posed on two civilians b+ !ilitar+ tribunals that the placin of .awaii under !artial law 8after the ;apanese Pearl .arbor
attac- on =ece!ber ', %&4%: under the .awaiian )ranic Act
15
did not include the power on the part of the !ilitar+
overnor to supplant civilian laws b+ !ilitar+ orders and to supplant civil courts b+ !ilitar+ tribunals, where conditions were
not such as to prevent the enforce!ent of the laws b+ the courts.
1he late ;ustice Fran- Murph+ in his concurrin opinion therein repudiated the overn!ent2s appeal to abandon the ?open
courts? rule on the alleed round of its unsuitabilit+ to ?!odern warfare conditions where all the territories of a warrin
nation !a+ be in Co!bat ,ones or i!!inentl+ threatened with lon rane attac- even while civil courts are operatin? as
see-in ?to 6ustif+ !ilitar+ usurpation of civilian authorit+ to punish cri!e without reard to the potenc+ of the Bill of
Rihts,? and observin that ?Constitutional rihts are rooted deeper than the wishes and desires of the !ilitar+.?
And in Toth 4s. (&arles
16
the @.". "upre!e Court further stressed that ?the assertion of !ilitar+ authorit+ over civilians
cannot rest on the President2s power as Co!!ander*in*Chief or on an+ theor+ of !artial law.?
1hus, the President has filled up vacancies in the 6udiciar+ and ?alla+ed effectivel+ the fears e7pressed durin the initial
da+s of !artial law that the rule of the !ilitar+ would prevail because other countries under !artial law had dispensed with
civilian courts of 6ustice? and stressed the supre!ac+ of the Constitution at the $Cth anniversar+ rites of the AFP when he
told the Ar!ed Forces that ?1he !ilitar+ is the force that enforces the law, but the civil overn!ent is the rulin power in
our countr+,? and that ?we have stuc- to the Constitution. <e have pleded lo+alt+ to that Constitution.?
17

#. Even assu!in that !ilitar+ tribunals could validl+ e7ercise 6urisdiction over offenses alleedl+ co!!itted b+ civilians
not withstandin the absence of a state of war or bellierenc+ and the uni!paired functionin of the reular courts of
6ustice, such 6urisdiction could not enco!pass civil offenses 8defined b+ the eneral civil law as per the Revised Penal
Code and Republic Act %'33 -nown as the Anti*"ubversion Act: alleed to have been co!!itted b+ civilians li-e petitioner
in %&9/, %&9', %&9&, %&'3 and %&'%, lon 5efore the declaration of !artial law as of "epte!ber #%, %&'#.
1he @.". "upre!e Court aptl+ pointed out in Toth 4s. (&arles, s&pra in rulin that dischared ar!+ veterans 8esti!ated to
nu!ber !ore than ##./ !illion: could not be rendered ?helpless before so!e latter*da+ revival of old !ilitar+ chares?
1'
and sub6ected to !ilitar+ trials for offenses co!!itted while the+ were in the !ilitar+ service prior to their dischare, that
?the presidin officer at a court !artial is not a 6ude whose ob6ectivit+ and independence are protected b+ tenure and
undi!inished salar+ and nurtured b+ the 6udicial tradition, but is a !ilitar+ law officer. "ubstantiall+ different rules of
evidence and procedure appl+ in !ilitar+ trials. Apart fro! these differences, the suestion of the possibilit+ of influence
on the actions of the court*!artial b+ the officer who convenes it, selects its !e!bers and the counsel on both sides, and
who usuall+ has direct co!!and authorit+ over its !e!bers is a pervasive one in !ilitar+ law, despite strenuous efforts to
eli!inate the daner.?
1he late ;ustice Blac- spea-in for that Court added that ?8A: Court*Martial is not +et an independent instru!ent of 6ustice
but re!ains to a sinificant deree a speciali,ed part of the over*all !echanis! b+ which !ilitar+ discipline is preserved,?
and that e7*service!en should be iven ?the benefits of a civilian court trial when the+ are actuall+ civilians .... Free
countries of the world have tried to restrict !ilitar+ tribunals to the narrowest 6urisdiction dee!ed absolutel+ essential to
!aintainin discipline a!on troops in active service.?
More so then should !ilitar+ trials be not sanctioned for civil offenses alleedl+ co!!itted b+ civilians li-e petitioner lon
before the declaration of !artial law and for which the+ could have been chared then as well as now before the civil
courts which have alwa+s re!ained open and their process and functions unobstructed.
1he "olicitor (eneral2s contention that !ilitar+ tribunals have ?co!petence to tr+ civil cri!es relatin to the causes
6ustif+in the procla!ation of !artial law?
19
in a veiled reference to the subversion chares aainst petitioner does not
!eet the essential re0uire!ent of the e7istence of overpowerin necessit+ or e!erenc+ to 6ustif+ the trial of petitioner, a
civilian, for the said civil offenses b+ respondent !ilitar+ co!!ission.
)n the contrar+, the President2s issuance of Ad!inistrative )rder No. $// on Auust #C, %&'$ for the reinvestiation of the
chares aainst petitioner b+ a non*!ilitar+ special co!!ittee establishes per se that no serious rounds of overpowerin
necessit+ or considerations of national securit+ or e!erenc+ stand in the wa+ of reconi,in petitioner2s riht to a civilian
trial should the results of the civilian reinvestiation prove adverse to hi!.
As stated b+ the present ;ude Advocate (eneral in his treatise on !artial law, ?,ecessity li!its both the extent of powers
that !a+ be e7ercised under !artial law, and the d&ration of its e7ercise. No life !a+ be ta-en, no individual arrested or
confined, or held for trial, no propert+ destro+ed, or appropriated, no rihts of the individual !a+ be curtailed or suspended
e7cept where necessit+ 6ustifies such interference with the person or the propert+. An+ action on the part of the !ilitar+
that is not founded on the reasonable de!ands of necessit+ is a gross &s&rpation of po2er, illeal, un6ustified, and
i!proper. 1he broad !antle of !artial law cannot cover acts illeal because not 6ustified b+ necessit+, nor proper under
the circu!stances. 1his principle is based not onl+ upon the funda!ental precepts of constit&tionalis-, but rests on sound
reason K that where the action of the !atter is not necessar+ for the public ends of the state the+ are illeal, and the
-ere fact that -artial la2 exists will not be a round for their 6ustification.?
!(

$. Petitioner !a+ not be deprived of his constitutional riht to due process b+ !eans of the proceedins instituted aainst
hi! before respondent*!ilitar+ co!!ission, vi,B
8a: 1he su!!ar+ ex parte investiation b+ the chief prosecution staff of the ;A() of the chares filed aainst hi!
deprived hi! of his riht to be infor!ed of the chares aainst hi! and of his riht to counsel as e7pressl+ reconi,ed
now b+ section #3 of the Bill of Rihts of the %&'$ Constitution.
!1

8b: he would be deprived of his vested statutor+ riht to a preli!inar+ investiation of the subversion chares aainst hi!
before the proper court of first instance as re0uired under section / of the Anti*"ubversion Act, Republic Act %'33
!!
and of
the other chares aainst hi! before the proper civilian officials and to confront and cross*e7a!ine the witnesses aainst
hi! under Republic Act /%C3A 8at the least, the special reinvestiatin co!!ittee created under Ad!inistrative )rder No.
$// should be activated in order to dischare its assined tas- of conductin the preli!inar+ investiation and deter!inin
whether or not the petitioner should be held for trial:A 8c: he would be deprived of the riht to be tried b+ 6udicial process,
b+ the reular, independent courts of 6ustice, with all the specific constitutional, statutor+ and procedural safeuards
e!bodied in the 6udicial process and presided over not b+ !ilitar+ officers 8?trained and oriented alon strict rules of
discipline and riid countenance 8althouh: the+ are hu!an beins with hu!an hearts?
!3
who are not law+ers 8e7cept the
law !e!ber:, but b+ 6udes of at least ten +ears e7perience in the practice of law whose ob6ectivit+ and independence are
protected b+ tenure uaranteed b+ the Constitution and are nurtured b+ the 6udicial traditionA and
8d: .e would be deprived of the riht to appeal to the reular appellate courts and to 6udicial review b+ this Court, in the
event of conviction and i!position of a sentence of death or life i!prison!ent which the chares carr+.
!4
Article F, section
% of the %&'$ Constitution e7pressl+ provides that the National Asse!bl+ 8which is vested with the power to define,
prescribe and allocate the 6urisdiction of the various courts: !a+ not deprive this Court of its 6urisdiction over such serious
cases, a!on others. 1his Court in the e7ercise of such 6urisdiction has consistentl+ e7acted the cardinal rule that the
prosecution !ust prove the uilt of the accused be+ond a reasonable doubt and re0uired a 0ualified !a6orit+ of ten 8%3:
votes for affir!ance of the death penalt+ 8which re0uire!ent is of course not found in the Co!!ander*in*Chief2s review of
the decisions of !ilitar+ tribunals:.
For the !ilitar+ tribunal to tr+ petitioner under these circu!stances is to den+ petitioner due process of law as uaranteed
under section % of the Bill of Rihts as well as under section %' which further specificall+ ordains that ?No person shall be
held to answer for a cri!inal offense without due process of law.? 1he eli!ination b+ subse0uent decrees of his riht to
preli!inar+ investiation 8with riht of counsel and of cross*e7a!ination: of the subversion chares before the proper
court of first instance under Republic Act %'33 and of other rihts vested in hi! at the ti!e of the alleed co!!ission of
the offense which were all !eant to provide the accused with a!ple lawful protection in the enforce!ent of said Act, such
as the basic riht to be tried b+ 6udicial process and the riht of 6udicial review b+ this Court would further offend the
Constitutional in6unction aainst the enact!ent of ex post facto laws which would render it easier to convict an accused
than before the enact!ent of such law.
!5

<ith all such constitutional safeuards, the Court throuh Mr. ;ustice Castro in its decision in !eople 4s. Ferrer
!6
rendered
after the procla!ation of !artial law, nevertheless en6oined that ?even as we uphold the validit+ of the Anti*subversion Act,
we cannot overe!phasi,e the need for prudence and circu!spection in its enforce!ent, operatin as it does in the
sensitive area of freedo! of e7pression and belief,? and set specific basic uidelines to be observed in an+ prosecution
under the Act. .ence, the prohibition aainst ex post facto laws laws has been aptl+ described as ?a warnin aainst
leislative oppression or t+rann+? and a provision that ?would !ini!i,e if not eradicate the possibilit+ of the leislature
itself discreditin the state with its palpable disreard of a basic ob6ective, that 6ustice be dispensed with an even hand
throuh the dul+ established orans with a special fitness for the tas-.?
!7

Petitioner has thus cited the President2s announce!ent on =ece!ber %%, %&'4 that the persons chared with
assassination atte!pts aainst hi! will be tried before the civil courts althouh the chares were filed with the !ilitar+
tribunals
!'
and the President2s recent issuance on March 9, %&'/ of >etter of 5nstruction No. ##/ creatin a special five*
!e!ber panel to conduct an investiation to re*evaluate the evidence aainst the therein accused and to deter!ine
whether an offense has been co!!itted and whether the+ are probabl+ uilt+ thereof and if probable cause is found, to
file the appropriate chares.
!9

4. Petitioner2s plea that his trial b+ a !ilitar+ tribunal created b+ the President and co!posed of the President2s own
!ilitar+ subordinates without tenure and of non*law+ers 8e7cept the law !e!ber: and of whose decision the President is
the final reviewin authorit+ as Co!!ander*in*Chief of the Ar!ed Forces deprives hi! of a basic constitutional riht to be
heard b+ a fair and i!partial tribunal, considerin that the President has publicl+ declared the evidence aainst petitioner
?not onl+ stron 8but: overwhel!in? and in petitioner2s view thereb+ pre6uded and predeter!ined his uilt !erits
consideration.
5n petitioner2s view, he has been publicl+ indicted and his uilt pre6uded b+ the President when in a nation*wide press
conference on Auust #4, %&'% followin the Pla,a Miranda bo!bin three da+s earlier of the >iberal Part+ procla!ation
!eetin, the President chared hi! and disclosed evidence in the possession of the overn!ent lin-in petitioner to
so!e illeal and subversive activities, in %&9/*%&'%, which are virtuall+ the sa!e chares now filed aainst hi! before
respondent !ilitar+ co!!ission, and declared the evidence aainst petitioner ?not onl+ stron 8but: overwhel!in.? 1he
President e7plained on the sa!e occasion that in not actin aainst petitioner, he had ?erred on the side of enerosit+ as
well as of liberalit+ hopin that ood sense !a+ so!eda+ catch up with hi!? since petitioner was ?the onl+ opposition
senator left in the "enate? after the bo!bin, but that he did not -now ?what will happen later on, because, of course, the
!ilitar+ insist that we !ust not !a-e an+ e7ceptions to the eneral rule.?
3(

<hile one !a+ aree that the President as Co!!ander*in*Chief would dischare his dut+ as the final reviewin authorit+
with fealt+ to his oath ?to do 6ustice to ever+ !an,? particularl+ because of his renowned leal saacit+ and e7perience, still
under the environ!ental facts where the !ilitar+ appears to have been i!pressed b+ the President2s appraisal of the
evidence and without castin an+ reflection on the interit+ of the !e!bers of respondent !ilitar+ co!!ission which
petitioner hi!self ac-nowledes, the doctrine consistentl+ held b+ the Court that ?ele!entar+ due process re0uires a
hearin before an i!partial and disinterested tribunal?
31
arid that ?All suitors ... are entitled to nothin short of the cold
neutralit+ of an independent, wholl+ free, disinterested and i!partial
tribunal?
3!
calls for application in the present case.
1his Court in all its 6urisprudence on dis0ualification and inhibition of 6udes has invariabl+ cited as ?a salutar+ nor! ... that
he 8the 6ude: reflect on the probabilit+ that a losin part+ !iht nurture at the bac- of his !ind the thouht that the 6ude
had un!eritoriousl+ tilted the scales of 6ustice aainst hi!? and applied the +ardstic- that when the basis has been laid for
?the possibilit+ of a trial*bein tainted b+ partialit+, this Court can step in to assure respect for the de!ands of due
process? which it has e7tended pri!aril+ for the peace of !ind and protection of the accused.
33

Respondents2 citin of +a-ashita 4s. Styer
34
as 6ustif+in the prosecution and trial of civilians b+ !ilitar+ co!!issions is in
error as that case involved the ?trial and punish!ent of war cri!inals 8which: is an aspect of wain war.? Neither is the
creation of the People2s Court after the last war to tr+ those chared with treason in point, for said court as well as si!ilar
courts li-e the Circuit Cri!inal Courts which were created b+ Conress pursuant to its authorit+ under the Constitution and
vested with special 6urisdiction over certain cri!es, were created as C&dicial courts and part of the 6udicial s+ste! whose
decisions were and are sub6ect to review b+ the appellate courts, unli-e !ilitar+ co!!issions.
/. Prescindin fro! the issue of respondent !ilitar+ co!!ission2s lac- of 6urisdiction over the chares aainst the
petitioner, the e7a!ination of the prosecution witnesses and the perpetuation of their testi!on+ should properl+ be held
before the "pecial Reinvestiatin Co!!ittee created under Ad!inistrative )rder No. $// for the si!ple reason that all
proceedins before respondent !ilitar+ co!!ission were dee!ed suspended b+ virtue of the reinvestiation ordered b+
the President to deter!ine whether there ?reall+ is reasonable round? to hold petitioner for trial and the perpetuation of
testi!on+ iven before the said Co!!ittee is e7pressl+ provided for in the Ad!inistrative )rder.
5t was precisel+ ?to reassure the 8petitioner: that he continues to en6o+ his constitutional riht to due process? and ?to
insure ut!ost fairness, i!partialit+ and ob6ectivit+? and ?to deter!ine whether realit+ there is reasonable round to believe
that the offenses chared were in fact co!!itted and the 8petitioner: is probabl+ uilt+ thereof2 that the President created
under Ad!. )rder No. $// on Auust #C, %&'$ a special five* !e!ber co!!ittee ?to conduct the preli!inar+
investiation? of the chares aainst petitioner.
5t !a+ be seen fro! the above*stated pre!ises and ob6ectives that the ad!inistrative order was issued b+ the President
pursuant to his ?orientation towards the protection of the Bill of Rihts 8and: the 6udicial process.? As the President hi!self
declared in the sa!e nationwide press conference of Auust #4, %&'%B t.ñ./0h123/
5 a! a law+er, !+ trainin is oriented towards the protection of the Bill of Rihts, because if +ou will
re!e!ber, 5 have repeatedl+ said, that if it were not for the Bill of Rihts 5 would not be here now. 5f it
were not for the 6udicial process, 5 would not be President of the Republic of the Philippines....
35

5n petitioner2s urent !otion of March #4, %&'/ for a restrainin order aainst the holdin of perpetuation of testi!on+
proceedins before respondent !ilitar+ co!!ission, he precisel+ co!plained that such proceedins would pree!pt and
render !oot the pre6udicial 0uestion raised b+ hi! in the case at bar challenin the co!!ission2s 6urisdiction to ta-e
coni,ance of the chares aainst hi! and would ?short*circuit? the reinvestiation ordered b+ the President under Ad!.
)rder No. $// ?even before the said co!!ittee has perfor!ed its dut+ to deter!ine whether or not petitioner should be
held for trial? and notwithstandin that ?there is no indication co!in fro! the President of the Philippines that it has
outlived its usefulness K functus oficio K or that it is not fit to ad!inister 6ustice to the petitioner.?
36

<hile petitioner insisted on his riht to a preli!inar+ investiation of the subversion chares b+ the court of first instance
as prescribed b+ Republic Act %'33, he nevertheless propounded in his March #%, %&'/ !e!orandu! that retired ;ustice
;. B. >. Re+es2 havin declined to act as chair!an of the co!!ittee and to desinate a representative of the 5nterated
Bar did not !ean that the co!!ittee ?cannot be !ade to function 8since: in the absence of 6udicial writ or process, there is
nothin to prevent the desination of another retired 6ustice of the "upre!e Court as chair!an, and nothin to prevent the
inco!in president of the 5nterated Bar to desinate a representative to the co!!ittee.?
37
As to petitioner2s havin
declined to desinate his representative, it has alread+ been pointed out, s&pra,
3'
that the said order e7pressl+ provides
that in such event ?the Chief ;ustice shall desinate so!eone in his stead ?
5t is evident then that under the said order, the Chief ;ustice was called upon to fill at least the two vacancies b+ !a-in
the substitute desinations as therein provided, which would have enabled the co!!ittee to dischare its function with a
co!position of four !e!bers 8while awaitin the desination of the fifth !e!ber b+ the 5BP president: but that he
refrained fro! doin so as the !atter was s&5 C&dice because of the pendenc+ of the supple!ental petition at bar
0uestionin the validit+ of the order on the round that it deprived petitioner of his riht to investiation b+ the court of first
instance on the principal chares of subversion.
<ith the Court2s dis!issal of the petitions 8and petitioner2s withdrawal thereof: nothin stands in the wa+ now of activatin
the said "pecial Reinvestiatin Co!!ittee and its discharin its assined tas- of ?conductin the preli!inar+
investiation? and deter!inin whether petitioner should be held for trial in i!ple!entation of the order2s e7press
ob6ectives of reassurin petitioner of ?his constitutional riht to due process? and ?insurin ut!ost fairness, i!partialit+ and
ob6ectivit+ in the prosecution of the chares aainst 8petitioner:.?
"uch preli!inar+ investiation b+ the "pecial Reinvestiatin Co!!ittee with its diverse !e!bership and e!phasis that
those desinated !ust !eet the 0ualifications of bein ?learned in the law, reputed for probit+, interit+, i!partialit+,
incorruptibilit+ and fairness and !ust have had no previous connection in this !atter either as counsel or investiator? is
certainl+ far !ore desirable than the present situation where such rave chares were su!!aril+ filed with the !ilitar+
co!!ission aainst petitioner without his havin been previousl+ infor!ed of the chares aainst hi! nor iven the
benefit of an+ preli!inar+ investiation.
(oin b+ the ver+ standards of ?ut!ost fairness, i!partialit+ and ob6ectivit+? set b+ the President in the Ad!inistrative
)rder, and prescindin fro! the unsettled 0uestion of whether petitioner would have throuh counsel the riht of cross*
e7a!ination of the witnesses presented aainst hi!, it will be readil+ appreciated that in such preli!inar+ investiation b+
a non*!ilitar+ special co!!ittee wholl+ co!posed of civilians, petitioner !a+ then fairl+ and properl+ be represented b+
e7perienced counsel who can co!petentl+ handle his defense and at least present ti!el+ ob6ections to the ad!ission of
inco!petent or inad!issible evidence, not to !ention that the five !en ?learned in the law? co!posin the co!!ittee
would !ost li-el+ -ot& propio rule out an+ such inad!issible evidence. 1his would be in contrast to the perpetuation
proceedins in the !ilitar+ tribunal where petitioner has dischared all his counsels, civilian and !ilitar+, because of the
lac- of 6urisdiction, in his view, 8as well as per this opinion: of the !ilitar+ co!!ission over civilians li-e hi! for alleed
pre*!artial law civil offenses and the nullit+ of the proceedins therein and thus has been deprived, althouh b+ his own
act, of indispensable leal representation and assistance in the proceedins where his ver+ life, libert+ and honor are at
sta-e.
1he ob6ective of the perpetuation proceedins !a+ properl+ be achieved b+ the "pecial Reinvestiatin Co!!ittee before
who! the testi!onial evidence souht to be perpetuated should be presented in the dischare of its assined tas- to
conduct a preli!inar+ investiation to deter!ine whether or not the chares aainst petitioner should stand and petitioner
!ade to face trial. .oldin the perpetuation proceedins before the co!!ittee would dispose of the leal re0uire!ents
under P.=. No. $#C itself that the proceedins be had before a !ilitar+ tribunal with 6urisdiction and ?before which a case is
pendin.? Even thouh technicall+, as contended b+ respondents, the cases are still pendin with the !ilitar+ tribunal, it
see!s obvious fro! the ver+ ter!s of Ad!inistrative )rder No. $// that the chares are in fact dee!ed withdrawn fro!
the !ilitar+ tribunal and the latter cannot hold an+ proceedins for as lon as the co!!ittee has not co!pleted its
preli!inar+ investiation and deter!ined thereafter the e7istence of a pri-a facie case sufficient to let the chares re!ain
and to re0uire petitioner to face trial. 1he Ad!inistrative )rder thus e7pressl+ provides for the perpetuation of ?an+
testi!onial evidence presented before the Co!!ittee? and for its use in an+ proceedin? before an+ court or tribunal, ci4il
or -ilitary, without need of presentin the witness or witnesses who testified in case such witness or witnesses have died
or left the co&ntry or 5eco-e &na5le to testify.?
3'
0
9. Assu!in nevertheless that the perpetuation of testi!on+ proceedins could be properl+ conducted before respondent
!ilitar+ co!!ission, petitioner2s ph+sical presence at the proceedins could not be co!pelled b+ virtue of his e7press
waiver thereof as e7plicitl+ allowed b+ the Constitution and b+ P.=. No. $#C itself.
)n April %, %&'/, respondent !ilitar+ co!!ission had reconi,ed petitioner2s riht to waive his presence at the
proceedins and ranted his re0uest to be returned to his detention 0uarters. But on April 4, %&'/, it reversed itself at the
!ilitar+ prosecutor2s instance and ruled instead that petitioner2s presence at ever+ stae of the proceedin is
indispensable on the round, as stated b+ the "olicitor (eneral, that ?the chares aainst petitioner involve capital
offenses and petitioner is in custod+ and petitioner had clai!ed in this case that proceedins for the perpetuation of
testi!on+ were actuall+ a part of
trial.?
39
Petitioner2s sub!ittal that he cannot be co!pelled to be present at the proceedins even aainst his will b+ virtue
of his e7press waiver is !eritorious. <hereas previousl+ such riht of waiver of the accused2s presence in cri!inal
proceedins was enerall+ reconi,ed
4(
save in capital cases
4
1 leadin to the suspension of trial whenever the accused
was at lare: or where the accused was in custod+ althouh for a non*capital offense, the %&'$ Constitution now
un0ualifiedl+ per!its trial in a5sentia even of capital cases, and provides that ?after arrain!ent, trial !a+ proceed
notwithstandin the absence of the accused provided that he has been dul+ notified and his failure to appear is
un6ustified,?
4!
thus reconi,in the riht of an accused to waive his presence. P.=. No. $#C under which the perpetuation
proceedins are bein conducted in !ilitar+ co!!issions 8as the counterpart rule for si!ilar proceedins before the
reular civil courts, as provided in Rule %%&, section ' of the Rules of Court: e7plicitl+ provides that after reasonable notice
to an accused to attend the perpetuation proceedins, the deposition b+ 0uestion and answer of the witness !a+ proceed
in the accused2s absence and the failure or refusal to attend the e7a!ination or the ta-in of the deposition shall be
considered a waiver.?
43
1hus, an accused2s riht of total waiver of his presence either e7pressl+ or i!pliedl+ b+ un6ustified
failure or refusal to attend the proceedins is now e7plicitl+ reconi,ed and he cannot be co!pelled to be present as
aainst his e7press waiver.
Even as a!on the !e!bers of the Court who voted as per the April #/, %&'/ resolution in favor of 0ualified waiver, i.e.
that the accused2s presence could be re0uired in the instances where his presence is needed for his identification b+ the
prosecution witness, the view was e7pressed that such presence could be dispensed with if his waiver e7pressl+ included
an ad!ission of his identification b+ na!e b+ the witnesses*deponents. 5t should be noted that such an additional
re0uire!ent would be superfluous because of the total waiver as well as because of the disputable presu!ption
44
established b+ the rule of evidence of ?identit+ of person fro! identit+ of na!e?
45
, aside fro! the !an+ pro!inent public
positions occupied b+ petitioner throuh which his identification is !ade b+ the prosecution witnesses as noted fro! their
affidavits as sub!itted b+ the "olicitor*(eneral.
'. Petitioner2s ob6ection to the perpetuation proceedins, particularl+ if the+ were to be considered part of the trial, since
the ver+ 0uestion at issue in the case at bar on !ilitar+ co!!issions2 lac- of 6urisdiction over pre*!artial law civil offenses
alleedl+ co!!itted b+ civilians li-e petitioner would be pree!pted and rendered !oot b+ the proceedins should have
been iven due consideration b+ said co!!ission, instead of bein used b+ it to re0uire his presence aainst his will.
5t should be noted that the "olicitor (eneral2s second round for 6ustif+in respondent co!!ission2s reversal order
re0uirin petitioner2s presence was that ?petitioner had clai!ed in this case that proceedins for the perpetuation of
testi!on+ were actuall+ a part of trial?, without however statin respondents2 own stand.
1he prevailin doctrine, as enunciated b+ the Court in !eople 4s. lago
46
appears 0uite clear that ?5t is not a trial where
the defendant has to introduce his evidence. 5t is onl+ ta-in down the state!ents of the witnesses for the prosecution
with opportunit+ on the part of the defendant to cross*e7a!ine the!.?
47
1he Court, citin Rule %%% 8e: of the %&43 Rules of
Court 8now reproduced in Rule %%/ 8f: of the Revised Rules of Court:
4'
and the reat weiht of 6udicial authorities aainst
the ad!ission of a deposition or previous testi!on+ of a witness who is present in court or is available at the actual trial,
set aside the appellate court2s decision affir!in conviction therein and ruled that the trial court and the appellate court
?co!!itted reversible error? in ad!ittin the perpetuated testi!onies or depositions of the two A!erican prosecution
witnesses when the+ were actuall+ present in court at the ti!e of trial.
1he Court thus held thatB t.ñ./0h123/
5t is clear fro! the rule ... that the testi!on+ or deposition of a witness !a+ be read or sub!itted in
evidence only when the deponent is dead or incapacitated to testif+ or cannot 5e fo&nd in the Philippines.
5f he was present in court, there is no need for introducin his deposition in evidence because his
testi-ony is the 5est e4idence especiall+ in a case li-e the present where the deponent in ivin his
deposition had not 5een cross#exa-ined b+ the defendant, althouh of course, said failure to cross
e7a!ine !a+ not be laid at the door of the prosecution.
49

1he !ost that can be said then is that the perpetuation proceedins !a+ be conditionally considered part of the trial only
when the deponent*witness is at the ti!e of trial dead or incapacitated to testif+ or cannot with due dilience be found in
the Philippines. Absent an+ of these conditions, it is not a part of the trial and the witnesses !ust ive their testi!on+
ane2 8not their previous or perpetuated deposition: as the best evidence sub6ect to the crucible of cross*e7a!ination.
.ence, petitioner had cause to co!plain aainst the !ilitar+ prosecutor2s a!bivalent posture that ?5n the first da+ he
arued we !ust proceed 8notwithstandin the pendenc+ before this Court of the petition 0uestionin the co!!ission2s
lac- of 6urisdiction: because this is not part of the trial. Now, the rulin adversel+ was handed down 8allowin petitioner2s
waiver of his presence:, but this is a part of the trial, he
sa+s.?
5(
C. <ithal, these 0uestions presented serious, if not difficult, 0uestions of law, and particularl+, the petitioner2s riht to totall+
waive his presence at the proceedins presented an i!portant new 0uestion that re0uired an authoritative rulin fro! this
Court because of the new provisions of the %&'$ Constitution involved.
1he rantin of petitioner2s urent pleas on April 4, %&'/ to be iven a period of at !ost seven da+s to file a written !otion
for reconsideration of the co!!ission2s reversal order of the sa!e date re0uirin his presence at ever+ stae of the
proceedins 8esti!ated to last fro! two to three !onths, accordin to the !ilitar+ prosecutor
51
: and to see- relief fro! this
Court, instead of +ieldin to the stubborn insistence of the !ilitar+ prosecutor that the perpetuation be ?done i!!ediatel+?
on the ratuituous assertion that ?precisel+ because if the round is dela+, the witnesses whose testi!onies are souht to
be presented would have been lon dead if perpetuation is held up?
5!
and su!!aril+ den+in petitioner2s ?repeated
appeals . . as fast as the+ were presented? as raphicall+ reported b+ the press
53
would have averted trierin off the
huner stri-e co!!enced on the sa!e date b+ petitioner who felt that he was un6ustl+ denied his riht of waiver and the
?last basic riht of a hu!an bein . . to be left alone.?
"uch an urent serious plea to be iven a reasonable ti!e and opportunit+ to see- recourse fro! this Court would have
been readil+ acceded to b+ a reular court in line with established 6udicial usae and procedure. 1he "olicitor (eneral2s
repl+ of April %%, %&'/ after this Court2s issuance of the restrainin order of April C, %&'/ suspendin further proceedins
b+ the co!!ission*in contrast to the !ilitar+ prosecutor2s un+ieldin stand inconruousl+ brandin the filin with this Court
of the petition at bar and of the supple!ental petitions as ?dela+in tactics? and ?dilator+ !oves?
54
K e7pressl+
?welco!e8d: an+ rulin b+ this Court whether under Presidential =ecree No. $#C the presence of the accused is
necessar+ or indispensable.? 1he decision of this Court upholdin petitioner2s riht of waiver vindicates petitioner2s
assertion before respondent !ilitar+ co!!ission of his riht ?to -eep silent ... to sta+ alone ... not to participate. .?
55
2 a
riht which is his to e7ercise or not.
&. Respondents have utterl+ failed to show the e7istence of ?public daner 8that: warrants the substitution of e7ecutive
process for the 6udicial process? and the settin aside of the constitutional !andate that lodes 6udicial power in the
reular courts of law and not in !ilitar+ tribunals and uarantees civilians the benefits of a civilian court trial. 1o sub6ect
civilians to !ilitar+ trial 6ust li-e !ilitar+ personnel and troops and ene!+ bellierents rather than to civilian trial b+ the
reular civil courts is to neate the cardinal principle and state polic+ of supre!ac+ at all ti!es of civilian authorit+ over the
!ilitar+.
55
0
5n see-in to 6ustif+ the substitution of the e7ecutive or !ilitar+ process b+ !ilitar+ co!!issions for the 6udicial process of
preli!inar+ investiation and trial b+ the reular civil courts with riht of appeal to the "upre!e Court invo-ed b+ petitioner
as his constitutional riht, the "olicitor (eneral in his !e!orandu! has !ade a nu!ber of bare assertions without even
an+ factual aver!ents or alleations in support thereof, as followsBt.ñ./0h123/
5ndeed, civil courts !a+ be open and undisturbed in the e7ecution of their functions and +et !a+ be
wholl+ inco!petent to avert a threatened daner, or to punish, with ade0uate pro!ptitude and certaint+,
the uilt+ conspirators. 5n ti!es of rebellion it !a+ often happen that the 6udes are in active s+!path+
with the rebels, and courts their !ost efficient allies. 8E7 parte Millian, 4 <all. %C>. Ed. #C%, #&& HChase,
C.;., concurrin.I:
1here !a+ be other reasons 6ustif+in the creation of !ilitar+ tribunals. ;udes !a+ be unwillin to tr+ the
rebels out of fear or other !otives.
777 777 777
5n our case, stud+ shows that Co!!unist subversion and propaanda ai! at the paral+,ation of the will
and the terroris! of the population and the overn!ent functionar+. 5n !an+ parts of the countr+ the
rebels succeeded in inti!idatin and silencin not onl+ the offended parties and their witnesses but even
the 6udes.
777 777 777
"till another reason for trial b+ !ilitar+ tribunals is the possibilit+ that the accused !a+ e7ploit procedural
advantaes available in the civil courts and render !ilitar+ operations aainst the rebellion difficult. 8Citin
a <est Girinia case 8%&#%: where the court therein reasoned that ?Participants 8in an insurrection:
arrested and co!!itted to the ci4il a&thorities could easil+ find !eans of dela+in trial, and li5erated on
5ail return to the insurrectionar+ ca!p and continue to render aid 8and: the civil tribunals... are wholl+
inade0uate to the exigencies of a state of 2ar, incident to an in4asion or ins&rrection.?:
56

1hese reflections on the co!petence of the civil courts find no 6ustification in the facts of public notice and -nowlede, to
witB
A nu!ber of 6udes of courts of first instance have been re!oved with the acceptance of their resinations but there is not
a sinle recorded case where the ?6udes 8were: in active s+!path+ with the rebels, and courts their !ost efficient allies?A
1here is not a sinle -nown case since the !artial law procla!ation of ?6udes 8bein: unwillin to tr+ the rebels out of
fear or other !otives? or of the 6udes, co!plainants and witnesses havin been inti!idated and silenced b+ rebelsA
Neither is there a sinle -nown instance of an accused rebel havin ?e7ploited procedural advantaes available in the civil
courts and renderin !ilitar+ operations aainst the rebellion difficult since those suspected of participation or conspirac+
in the co!!unist rebellion have been arrested without riht to bailA (eneral )rder No. 4& issued b+ the President on
)ctober 4, %&'4 restored to the civil courts a lare nu!ber of cri!inal cases that were transferred to !ilitar+ tribunals
upon the procla!ation of !artial law on the e7press pre!ises that ?positive steps have been ta-en to revitali,e the
ad!inistration of 6ustice and the new Constitution authori,es the reorani,ation of the courts? and ?althouh there still
e7ist areas of active rebellion in the countr+, on the whole there has been such an i!prove!ent in the eneral conditions
obtainin in the countr+ and in the ad!inistration of 6ustice as to warrant the return of so!e of the cri!inal cases to the
6urisdiction of civil courts?A and
1hese pre!ises of (.). No. 4& are borne out b+ the data and published reports. 1he twent+ 8#3: !ilitar+ co!!issions 8%4
a!bulator+ and 9 reional co!!issions:
57
hearin cases fro! ti!e to ti!e in !arathon hearins as the pressures of the
!ilitar+ service allow the !ilitar+ co!!issions to convene could not conceivabl+ !atch the wor- and cases disposition of
around three hundred and twent+ 8$#3: courts of first instance and circuit cri!inal courts all over the countr+ wor-in
continuousl+ and reularl+ throuhout the +ear.
1he aru!ent of procedural dela+s in the civil courts and need of pro!pt and certain punish!ent has been lon cut down
b+ the late ;ustice Fran- Murph+ in his concurrin opinion in :&ncan
5'
when he stressed that ?civil liberties and !ilitar+
e7pedienc+ are often irreconcilable and that ?the swift trial and punish!ent which the !ilitar+ desires is precisel+ what the
Bill of Rihts outlaws. <e would be false to our trust if we allowed the ti!e it ta-es to ive effect to constitutional rihts to
be used as the ver+ reason for ta-in awa+ those constitutional rihts,? as followsB t.ñ./0h123/
=ela+s in the civil courts and slowness in their procedure are also cited as an e7cuse for shearin awa+
their cri!inal 6urisdiction, althouh lac- of -nowlede of an+ undue dela+s in the .awaiian courts is
ad!itted. 5t is said that the !ilitar+ 2cannot broo- a dela+2 and that 2the punish!ent !ust be swiftA there is
an ele!ent of ti!e in it, and we cannot afford to let the trial liner and be protracted.2 1his !ilitar+ attitude
toward constitutional processes is not novel. Civil liberties and !ilitar+ e7pedienc+ are often
irreconcilable. 5t does ta-e ti!e to secure a rand 6ur+ indict!ent, to allow the accused to procure and
confer with counsel, to per!it the preparation of a defense, to for! a petit 6ur+, to respect the ele!entar+
rules of procedure and evidence and to 6ude uilt or innocence accordin to accepted rules of law. But
e7perience has de!onstrated that such ti!e is well spent. 5t is the onl+ !ethod we have of insurin the
protection of constitutional rihts and of uardin aainst oppression, 1he swift trial and punish!ent
which the !ilitar+ desires is precisel+ what the Bill of Rihts outlaws. <e would be false to our trust if we
allowed the ti!e it ta-es to ive effect to constitutional rihts to be used as the ver+ reason for ta-in
awa+ those rihts. 5t is our dut+, as well as that of the !ilitar+, to !a-e sure that such rihts are respected
whenever possible, even thouh ti!e !a+ be consu!ed.
As alread+ indicated above, it should be noted that no actual case of undue dela+s in the prosecution of cri!inal cases in
the reular civil courts has been clai!ed b+ respondents, nor has it been shown that !ilitar+ necessit+ or public daner
re0uire that petitioner be deprived of his rihts to due process and to the cold neutralit+ of an i!partial tribunal under the
6udicial process, should the reinvestiation ordered b+ the President bind hi! over for trial.
%3. 1he "olicitor*(eneral2s sub!ittal that ?the decrees and orders relatin to !ilitar+ co!!issions are now part of the law
of the land and are be+ond 0uestion? and that ?as the trial and punish!ent of civilians b+ !ilitar+ tribunals under the
circu!stances ... are valid and constitutional, ob6ections based on differences between civil and !ilitar+ courts are
i!!aterial? is constitutionall+ infir! and untenable.
1he "olicitor*(eneral2s pre!ise is that ?with the ratification of the new Constitution !artial law as proclai!ed b+ the
President beca!e part of the law of the land and now derives its validit+ fro! the new constitution?
59
and that b+ virtue of
section $ 8#: of the 1ransitor+ Provisions
6(
the decrees and orders on the !ilitar+ co!!issions are now also part of the
law of the land and be+ond 0uestion states a rather proli7 and sweepin concept that cannot be precipitatel+ sanctioned.
Martial law has not beco!e part of the law of the land and be+ond 0uestion b+ virtue of the co!in into force of the %&'$
Constitution. 5n fact, the said Constitution has precisel+ reproduced the %&$/ Constitution2s co!!ander* in*chief clause
with power to declare !artial law li!ited to e7actl+ the sa!e causes of invasion, insurrection or rebellion or i!!inent
daner and with e7actl+ the sa!e re0uire!ent that the public safet+ re0uire it.
61
(oin b+ the doctrine enunciated in
*ansang 4s. Garcia
6!
b+ a unani!ous Court, the e7istence of factual bases for the procla!ation and continuation of
!artial law !a+ under the said provision be 6udiciall+ in0uired into in order to deter!ine the constitutional sufficienc+
thereof as well as to circu!scribe the constraints thereof, in particular cases where the+ clash with an individual2s
constitutional rihts, within the bounds of necessit+ for the public ends and the public safet+, as indeed this Court did pass
on such 0uestions in the .abeas Corpus cases.
63
And as the President e7pressl+ stated at his world*wide satellite press
conference of "epte!ber $3, %&'4, the duration of !artial law is ?onl+ as lon as necessar+? as per the followin pertinent
e7cerpt of his state!ent thereonB t.ñ./0h123/
)f course the proble! here is, if +ou sa+ that !artial law leads to de!ocrac+, how lon are +ou oin to
!aintain !artial lawN 5 sa+ aain that onl+ as lon as necessar+. As the constitutionalists put it, necessit+
ave life to !artial law and !artial law cannot continue unless necessit+ allows it to live .
64

1he cited 1ransitor+ Provision, -nown as the validatin provision puts the i!pri!atur of a law upon the President2s acts
and decrees under !artial law which were not within or be+ond his allocated constitutional powers. As aptl+ stated b+
;ustice MuEo, Pal!a in her separate opinion in the .abeas Corpus cases, the people could not b+ the %&'$ Constitution
have thrown awa+ ?all their precious liberties, the sacred institutions enshrined in their Constitution, for that would be the
result if we sa+ that the people have sta!ped their approval on all the acts of the President e7ecuted after the
procla!ation of !artial law irrespective of an+ taint of in6ustice, arbitrariness, oppression, or culpable violation of the
Constitution that !a+ characteri,e such acts. "urel+, the people actin throuh their constitutional deleates could not
have written a funda!ental law which uarantees their rihts to life, libert+ and propert+, and at the sa!e ti!e in the sa!e
instru!ent provide for a weapon that could spell death to these rihts.?
1he contention that the decrees and orders on !ilitar+ co!!issions as ?part of the law of the land are be+ond 0uestion?
reall+ bes the 0uestion, for as was stressed b+ ;ustice MuEo, Pal!a, it would be ?inconruous? that while the acts of the
reular National Asse!bl+ as the ?per!anent repositor+ of leislative power? are sub6ect to 6udicial review, ?the acts of its
te!porar+ substitute, that is, the incu!bent President, such as the decrees and orders in 0uestion would be clai!ed to be
?be+ond 0uestion.?
5ndeed, the !a6orit+ resolution reconi,es that ?)f course, fro! the fact that the President has this rane of discretion, it
does not necessaril+ follow that ever+ action he !a+ ta-e, no !atter how un6ustified b+ the e7ienc+, would bear the
i!pri!atur of validit+.?
<hile the decrees and orders on !ilitar+ tribunals were !ade part of the law of the land b+ the cited 1ransitor+ Provision
8assu!in that the+ had been properl+ sub!itted for the purpose: still this eneral and transitor+ provision can in no wa+
supersede or nullif+ the specific allocation of 6urisdiction and 6udicial power to the "upre!e Court and the reular courts of
6ustice as established b+ law under Article F section % of the Constitution nor their proper e7ercise of 6urisdiction to the
e7clusion of non*6udicial aencies, under section C of Article FG55 which provides thatB t.ñ./0h123/
"EC. C. All courts e7istin at the ti!e of the ratification of this Constitution shall continue and e7ercise
their C&risdiction, &ntil other2ise pro4ided 5y la2 in accordance with this Constitution, and all cases
pendin in said courts shall be heard, tried, and deter!ined &nder the la2s then in force. 1he provisions
of the e7istin Rules of Court not inconsistent with this Constitution shall re-ain operati4e unless
a!ended, !odified, or repealed b+ the "upre!e Court or the National Asse!bl+. 8Art. FG55:
5nsofar as the 0uestioned decrees and orders encroached upon the 6urisdiction of the reular courts over the trial of
civilians, the+ !ust be dee!ed abroated b+ the cited provisions of the Constitution itself, in accordance with the
established rule that statutes as well as e7ecutive orders and reulations that are inconsistent with and transress the
provisions of a new Constitution !ust be dee!ed repealed thereb+.
As noted in the writer2s previous opinions,
65
the specific leislative powers ranted the incu!bent President in section $
8#: of the article on 1ransitor+ Provisions are li!ited to ?!odif+in, revo-in or supersedin the incu!bent President2s
validated acts and decrees done or issued prior to the proclai!ed ratification on ;anuar+ %', %&'$ of the %&'$
Constitution. No post*ratification leislative powers are therein ranted the incu!bent President and such leislative
power or !ore accuratel+ !ilitar+ power under !artial rule that has been e7ercised b+ hi! thereafter 8in the absence of a
parlia!ent: !ust rest on the law of necessit+ of preservation of the "tate and the decreein of such necessar+ !easures
as will safeuard the Republic and suppress the rebellion 8or invasion:. )n the other hand, section ' of the sa!e Article
e7pressl+ reserves to the National Asse!bl+ the power to a!end, !odif+ or repeal ?all e7istin laws not inconsistent with
this Constitution 8which: shall re!ain operative.? A!on such e7istin laws whose ?a!end!ent, !odification or repeal are
reserved to the National Asse!bl+ are the laws herein involved, vi,, the Anti*"ubversion Act, Republic Act No. %'33 and
the e7istin Rules of Court
66
with their safeuards for the rihts of an accused defendant. At an+ rate, an+ such
presidential decrees and orders cannot pre6udice the vested rihts of a defendant*accused as to pre*!artial law offenses
alleedl+ co!!itted b+ hi! nor be iven an adverse ex post facto effect aainst hi!.
%%. Respondents2 assu!ption of the validit+ of !ilitar+ trials of civilians and conclusion that ob6ections based on
differences between civil and !ilitar+ courts are i!!aterial !ust necessaril+ fail.
5t has been shown that respondents have failed to show the e7istence of so!e overpowerin factor that !a-es a
reconition of petitioner2s and other civilians2 constitutional rihts to due process inco!patible with the public safet+ as to
warrant the te!porar+ castin aside or suspension of such rihts. )n the contrar+, the issuance of the reinvestiation
order under Ad!inistrative )rder No. $// for the non*!ilitar+ "pecial Reinvestiatin Co!!ittee created thereunder to
conduct a preli!inar+ investiation of the chares aainst petitioner shows that no ele!ent of public safet+ is herein
involved.
1he vested rihts invo-ed b+ petitioner as essential ele!ents of his basic riht to due process, which are not ranted hi!
under the decrees and orders for his trial b+ respondent !ilitar+ co!!ission, are substantial and vital, 4iz. his riht to a
preli!inar+ investiation as apparentl+ reconi,ed b+ Ad!inistrative )rder No. $// 8as to the non*subversion chares:
with riht to counsel and of cross*e7a!ination of the witnesses aainst hi!, and the riht under the Anti*subversion Act to
a preli!inar+ investiation b+ the proper court of first instanceA his riht as a civilian to be tried b+ 6udicial process, b+ the
reular independent civilian courts presided b+ per!anent 6udes with tenure and with all the specific safeuards
e!bodied in the 6udicial processA and his riht to appeal in capital cases to this Court wherein a 0ualified !a6orit+ of ten
8%3: affir!ative votes for affir!ance of the death penalt+ is re0uired.
1he ordinar+ la+!an as well as practitioner are totall+ unfa!iliar with the su!!ar+ rules and procedures of !ilitar+
co!!issions as co!pared to the established procedures under the Rules of Court before the civilian courts, which per se
places the civilian on trial before a !ilitar+ co!!ission in a disadvantaeous position. A cursor+ review of the transcripts
furnished the Court shows these peculiarities that nor!all+ would not occur in civilian trials, as followsB
1he swearin in at the co!!ence!ent of the perpetuation proceedins on March $%, %&'/ of two newl+*appointed
!e!bersA
67
1he withdrawal on March %/, %&'/ of the chares aainst .u- Co!!anders Melod+ and Pusa who were oriinall+ na!ed
as co*accused principals in the four subversion chares and their utili,ation as state witnesses, which accordin to the
co!!ission2s law !e!ber ?auto!aticall+ ta-es effect. 1he !ilitar+ co!!ission cannot pass upon such withdrawal?
6'
in
contrast to the procedure in the civilian courts where the dischare of accused persons to be state witnesses !ust !eet
certain re0uire!ents in the interest of truth and 6ustice, e.. that the ?defendant 8to be dischared: does not appear to be
the !ost uilt+? and ?has not at an+ ti!e been convicted of an+ offense involvin !oral turpitude? as deter!ined in the
6ud!ent of the court
69
A and
1he !ilitar+ prosecutor 8desinated as trial counsel: acts in his own description as ?a 2(lorified Chi!o+2 of the Militar+
Co!!ission. .e acts not onl+ as Prosecutor of Militar+ Co!!ission No. # but he acts as a eneral FAC1)1@M or a MAN
FR5=AJ of this Militar+ Co!!ission. . 8and: he prepares the record of the trial.?
7(

As far as is enerall+ -nown, the !ilitar+ co!!ission at the conclusion of the trial ta-es a secret written ballot with at least
two*thirds of the !e!bers present to arrive at its su!!ar+ findins of (uilt+ or Not (uilt+, without enterin a written
decision which ?shall clearl+ and distinctl+ state the facts and the law on which it is based? as is !andatoril+ re0uired b+
the Constitution of ever+ decision of a civil court of record.
7(
0
%#. 1he transcendental constitutional issues involved in the case at bar which the !a6orit+ has resolved to decide on the
!erits despite petitioner2s withdrawal !otion call for ad6udication on the basis of enshrined principles of constitutionalis!
and the rule of law, as une0uivocabl+ espoused b+ the President hi!self. 1he case at bar asserts the riht of civilians to
the 6udicial process of civilian trials b+ the reular civil courts 8particularl+ for pre*!artial law offenses: as aainst the
e7ecutive process of trial b+ !ilitar+ tribunals and hines on this Court2s upholdin the principle that the individual in the
absence of overpowerin necessit+ or public daner, !ust be accorded his constitutional rihts as uaranteed b+ the Bill
of Rihts even in a state of !artial law. A corollar+ principle would be that the continuation of !artial law for
institutionali,ation of refor!s is not inco!patible with reconi,in the funda!ental liberties ranted in the Bill of Rihts.
1he Bill of Rihts of the Constitution specifies the powers that have been withheld fro! the overn!ent and are reserved
to the people .
71
But the freedo! uaranteed b+ it aainst the overwhel!in power of the "tate would be !eaninless
and of no use unless citi,ens could vindicate and enforce the! aainst the overn!ent officials and aencies b+ proper
procedures in the courts. As held b+ the Court in Garcia 4s. "acaraig, ?5n a s+ste! li-e ours, ever+ e7ercise of
overn!ental co!petence, whether co!in fro! the President or fro! the lowest official, !a+ be challened in court in
an appropriate leal
proceedin.?
7!

As was stressed b+ the late Chief ;ustice "tone in :&ncan, s&pra, ?e7ecutive action is not proof of its own necessit+, and
the !ilitar+2s 6ud!ent here is not conclusive that ever+ action ta-en pursuant to the declaration of !artial law was
6ustified b+ the e7ienc+. 5n the substitution of !artial law controls for the ordinar+ civil processes, 2what are the allowable
li!its of !ilitar+ discretion, and whether or not the+ have been overstepped in a particular case, are 6udicial 0uestions.2
Sterling 4. Constantin, s&pra 8#C' @" 43%, '' > ed $C', /$ " Ct %&3:.
1he Court2s 6ud!ent at bar is therefore of the ut!ost i!portance since under Article C, Civil Code, ?;udicial decisions
appl+in or interpretin the laws or the Constitution shall for! a part of the leal s+ste! of the Philippines.? As defined b+
Lnovit, ?the Constitution and the laws enacted b+ the leislatures and the 6ud!ents and orders of the courts constitute
the Rule of >aw.?
1he President has often declared that ?1he New "ociet+ loo-s to individual rihts as a !atter of para!ount concern,
re!oved fro! the vicissitudes of political controvers+ and be+ond the reach of !a6orities. <e are pleded to uphold the
Bill of Rihts and as the e7iencies !a+ so allow, we are deter!ined that each provision shall be e7ecuted to the
fullest, ....?
73

<hile stressin that ?!artial law ... is a te!porar+ constitutional e7pedient of safeuardin the Republic?
74
and ?a
te!porar+ phase in the develop!ent of our
countr+,?
75
the President has thus called for the Constitution to ?re!ain fir! and stable,? has re6ected the ?e7ercise 8of:
power that can be identified !erel+ with a revolutionar+ overn!ent? that !a-es its own law
76
and has called on ever+
citi,en to ?re!ain steadfast on the rule of law and the Constitution?, as followsB t.ñ./0h123/
. . . <hoever he !a+ be and whatever position he !a+ happen to have, whether in overn!ent or outside
overn!ent, it is absolutel+ necessar+ now that we loo- sole!nl+ and perceptivel+ into the Constitution
and tr+ to discover for ourselves what our role is in the successful i!ple!entation of that Constitution.
<ith this thouht, therefore, we can aree on one thin and that isB >et all of us ae, let all of us then pass
awa+ as a pace in the develop!ent of our countr+ but let the Constit&tion re-ain fir- and sta5le and let
institutions row in strenth fro! da+ to da+, fro! achieve!ent to achieve!ent, and so long as that
Constit&tion stands, 2hoe4er -ay the -an in po2er 5e, 2hate4er -ay his p&rpose 5e, that Constit&tion
2ill g&ide the people and no -an, ho2e4er po2erf&l he -ay 5e 2ill dare to destroy and rec? the
fo&ndation of s&ch a Constit&tion.
1hese are the reasons wh+ 5 personall+, havin proclai!ed !artial law, havin been often induced to
e7ercise power that can be identified !erel+ with a revolutionar+ overn!ent, have re!ained steadfast
on the r&le of la2 and the Constit&tion. 5 would reco!!end that if the President can do this, it the
President can restrain the e7ercise of his own powers, ever+ citi,en for his part should not find it a burden
to participate in this act of self*denial and self*abneation, as an earnest to the future of our race and our
people.
77

1his is but to state that no one should be above or below the law and to reiterate the classic dictu! that ?1he
Constitution . . . is a law for rulers and people, e0uall+ in war and in peace, and covers with the shield of its protection all
classes of !en, at all ti!es, and under all circu!stances.?
7'
5n the relativel+ recent case of !hil. 'loo-ing "ills
-ployees7 Organization 4s. !hil. 'loo-ing "ills,
79
Mr. ;ustice Ma-asiar restated for the Court certain ?basic concepts
and principles? of constitutionalis!, which bear reproducin as the+ concern the issues at bar, as followsB t.ñ./0h123/
8%: 5n a de!ocrac+, the preservation and enhance!ent of the dinit+ and worth of the hu!an personalit+
is the central core as well as the cardinal article of faith of our civili,ation. 1he inviolable character of a
!an as an individual !ust be ?protected to the larest possible e7tent in his thouhts and in his beliefs as
the citadel of his person.?
'(

8#: 1he Bill of Rihts is desined to preserve the ideals of libert+, e0ualit+ and securit+ ?aainst the
assaults of opportunis!, the e7pedienc+ of the passin hour, the erosion of s!all encroach!ents, and the
scorn and derision of those who have no patience with eneral principles.?
'1
5n the pith+ lanuae of Mr. ;ustice Robert ;ac-son, the purpose of the Bill of Rihts is to withdraw
?certain sub6ects fro! the vicissitudes of political controvers+, to place the! be+ond the reach of
!a6orities and officials, and to esta5lish the- as legal principles to 5e i-plied 5y the co&rts. )ne2s rihts
to life, libert+ and propert+, to free speech, or free press, freedo! of worship and asse!bl+, and other
f&nda-ental rights -ay not 5e s&5-itted to a 4oteD they depend on the o&tco-e of no elections.?
'!
>as-i
proclai!ed that ?the happiness of the individual, not the well*bein of the "tate, was the criterion b+ which
its behaviour was to be 6uded. .is interests, not its power, set the li!its to the authorit+ it was entitled to
e7ercise.?
'3

777 777 777
Mr. ;ustice =oulas articulated this pointed re!inderB
1he challene to our liberties co!es fre0uentl+ not fro! those who consciousl+ see- to destro+ our
s+ste! of overn!ent, but fro! !en of oodwill*ood !en who allow their proper concerns to blind the!
to the fact that what the+ propose to acco!plish involves an i!pair!ent of libert+.
... 1he !otives of these !en are often co!!endable. <hat we !ust re!e!ber, however, is that
preser4ation of li5erties does not depend on -oti4e. A s&ppression of li5erty has the sa-e effect 2hether
the s&ppressor 5e a refor-er or an o&tla2. The only protection against -isg&ided zeal is constant
alertness of the infractions of the g&arantees of li5erty contained in our Constitution. ach s&rrender of
li5erty to the de-ands of the -o-ent -a?es easier another, larger s&rrender. The 5attle o4er the 'ill of
Rights is a ne4er is a ne4er ending one.
... The li5erties of any person are the li5erties of all of &s.
... )n short, the li5erties of none are safe &nless the li5erties of all are protected.
... '&t e4en if 2e sho&ld sense no danger to o&r o2n li5erties, e4en if 2e feel sec&re 5eca&se 2e 5elong
to a gro&p that is i-portant and respected, 2e -&st recognize that o&r 'ill of Rights is a code of fair play
for the less fort&nate that 2e in all honor and good conscience -&st o5ser4e.
'4
5f as stressed above unifor!l+ b+ the President and the cited leal authorities, s&pra, the freedo!s uaranteed b+ the Bill
of Rihts are ?re!oved fro! the vicissitudes of political controvers+ 8and: be+ond the reach of !a6orities and officials? and
are established ?as leal principles to be applied b+ the courts? and ?!a+ not be sub!itted to a voteA the+ depend on the
outco!e of no elections,? then it is respectfull+ sub!itted that the principles of funda!ental public polic+ enshrined in the
Bill of Rihts that uarantee to ever+ individual due process and fair pla+, reardless of who he is and of whoever !a+ be
in power, call for the rantin of the petition and at the least for the reinvestiation of the chares aainst petitioner with
?ut!ost fairness, i!partialit+ and ob6ectivit+? as directed in Ad!inistrative )rder No. $// itself.
"&ñoz#!al-a, J., concur.;<2ph=;.ñ>t
BARRE$O, J., concurrinB
5 concur in the !ain opinion so ver+ abl+ penned for the Court b+ our distinuished colleaue, Mr. ;ustice Antonio. 5 a!
writin this separate opinion not with intent to unnecessaril+ lend force to the coent and co!pellin considerations
e7pounded therein but onl+ to articulate a few thouhts 5 entertain relative to certain aspects of this case which have
additionall+ i!pelled !e to overrule the contentions of petitioner other than his invocation of his riht to waive his
presence at the proceedins bein held aainst hi!.
At the outset, 5 would li-e to underscore the fact that this is the first decision of this Court reardin !a6or !artial law
issues wherein the !ain opinion carries the un0ualified concurrence of the re0uired nu!ber of 6ustices for doctrinal
purposes. "ince 5 have heretofore reretted )ur failure to aree on a co!!on opinion that would not be sub6ect to var+in
constructions, includin distorted and self*!otivated ones which could be peddled around for propaanda purposes b+
those who for reasons of their own cannot see an+ti!e riht in the present order, it is to !e a cause of enuine
satisfaction that at lon last the Court has been able to render the instant opinion and 6ud!ent, touchin on i!portant
and basic constitutional and leal features of the prevailin !artial law ad!inistration, in a !anner that leaves no roo! for
doubt as to the !eanin and scope of )ur pronounce!ents.
1o be !ore specific, the !ain opinion in this case and the rulins therein contained own the full support of at least eiht
!e!bers of the Court, without countin what 5 consider to be the close*enouh*to*concurrence posture of Mr. ;ustice
Fernando, which betra+s no little effort to reconcile lon cherished traditional views with the innovative and proressive
6uridical concepts e!erin fro! the i!peratives of the leal character of the presentl+ established overn!ent. 5n the
liht of the constitutional re0uire!ent of ten 8%3: votes for a declaration of invalidit+ of an+ order of the President, eiht
neative votes is !ore than i!pressive. And certainl+, all the rulins in the !ain opinion, havin as the+ do have the
support of those eiht votes, constitute authoritative doctrines, aainst which, the contrar+ views of an+ !e!ber of the bar
should have no !ore than acade!ic value. At these ti!es when it is best that the leal foundations of the e7istin
overn!ent should be securel+ solidified to better and faster achieve the ends for which !artial law has been proclai!ed,
the pronounce!ents of the Court in this case should put an end to an effort to discredit the actions of this (overn!ent as
bein founded onl+ on !iht rather than riht. 5ndeed, !+ faith is that the rule of law obtains toda+ as it has alwa+s
obtained before, arid due consideration and correspondin acco!!odation accorded to the re0uire!ents of the
e!erenc+ confrontin the nation do not detract in an+ wa+ fro! the effective supre!ac+ of the law.
%. !etitioner -otion to 2ithdra2 denied
5t is a settled rule consistent with the fittin dinit+ of 6udicial proceedins that after a case has been sub!itted for
decision, withdrawal of the sa!e fro! the 6urisdiction of the court is a !atter addressed to its sound discretion and is far
fro! bein a !atter of riht on the part of an+ of the parties. For obvious reasons, a part+ should not be allowed to
provo-e issues of far reachin interest and i!portance and hurl accusations aainst the actuations of the adverse part+,
thereb+ creatin doubts in the public !ind as to the validit+ of said actuations, and thereafter, upon bein confronted with
the defenses of his opponent and sensin perhaps probable defeat, to 6ust ta-e a retreat, without e7pressl+ ad!ittin the
infir!it+ of his position, thereb+ !a-in sure that he can with relative i!punit+ continue with his critical attitude in the
!anner suitable to his convenience and purposes. )bservance of the laudable polic+ of ter!inatin litiations at the
earliest opportunit+ !a+ not be invo-ed when the evident result is detri!ent to the !ore para!ount ob6ective of havin a
definite rulin b+ the "upre!e Court as to what the law is in reard to the !atters of vital public interest actuall+ and
properl+ brouht to it for ad6udication.
But the i!perative need to settle the i!portant issues raised in this case is not the onl+ reason 5 have for votin to den+
petitioner2s !otion. <hen petitioner was re0uired b+ the Court to a!plif+ his initial unreasoned re0uest to be allowed to
withdraw all his petitions, !otions and other incidents herein, his counsel sub!itted a letter purportedl+ co!in fro!
petitioner, wherein he vehe!entl+ cast aspertions aainst this Court, allein that he does ?not want an+thin fro! the
"upre!e Court, and that the whole thin had been desined, co!posed and orchestrated in MalacaEan? and that his
?leal battles in the "upre!e Court are now over. Mr. Marcos is the sinle enius, co!posin and directin all the
proceedins, whether in the !ilitar+ tribunal or in the civil courts,? and even oin as far as referrin to the ?"upre!e
Court as an obstacle.?
5 do not believe 2it is under an+ circu!stance proper for a "upre!e Court to leave such accusations unchallened. Most
li-el+, the+ could be !ere uncontrollable outburst of a desperate soul which are without 6udicial sinificance, but since it is
as li-el+ that petitioner2s letter would be used as propaanda !aterial not onl+ here but abroad to discredit the Philippine
(overn!ent in the e+es of the world, 5 consider it inevitable for the Court to proceed to dispose of the !erits of petitioner2s
case and thus let all and sundr+ 6ude for the!selves on the basis of the Court2s e7pressed considerations rather than on
that of petitioner2s self*servin opinion, whether or not our 6udiciar+ is what petitioner clai!s it to be. 5t is !+ considered
view that if a part+ who co!es to court has indeed an+ riht to withdraw his case therefro!, such withdrawal should not
receive the sanction of the court when the part+ tells the court that his reason for withdrawin is because he has no
confidence in its i!partialit+ and capacit+ to render 6ustice. 5n such a situation, the onl+ recourse of the court is to prove b+
actuall+ decidin the case how 6ust and i!partial it is.
5 would li-e to state here e!phaticall+ that petitioner2s apprehensions about the daners to the independence of the
6udiciar+ of the Philippines at present, particularl+ the "upre!e Court, is nothin !ore than an a priori opinion and is not
and cannot be supported b+ facts. After all, the Court does not have to necessaril+ aree with ever+one who feels that
certain acts of the (overn!ent are illeal or unconstitutional. "urel+, a propensit+ to overrule the other depart!ents of the
(overn!ent is not the true !ar- of the independence of the 6udicial branch. 5f so far, the "upre!e Court has not +et
declared an+ i!puned acts of the President or the !artial law overn!ent unconstitutional, it is not because the Court is
subservient to the President in an+ wa+, but si!pl+ because, in the honest conviction of its !e!bers, the proper case for
such a declaration has not co!e. 1hat the Court can and will stri-e down acts of the President in the appropriate
instances, there should be no doubt whatsoever. 1he people can rest assured that when the proper occasions arise, the
6ustices, individuall+ and collectivel+, will not be found wantin in wisdo! and courae to act accordinl+, reardless of
what !iht be the views and wishes of the E7ecutive andDor an+ other depart!ent of the overn!ent.
At this point, it !a+ not be a!iss to sa+ a few words respectin petitioner2s decision to resort to what is bein referred to
as a ?huner stri-e.?
Accordin to his letter afore!entioned, the initial reason for such a step was, to 0uote his own words, to ?protest aainst a
procedure intended to hu!iliate and dehu!ani,e !e, considerin that all the+ wanted was for !e to be identified as a
co!!on cri!inal and not as a political rival. 5 also said that !+ huner stri-e was not onl+ for !+self but on behalf of
!an+ other victi!s of toda+2s oppression and in6ustices.? >ater, however, the causes thereof were broadened b+ hi! thusB
t.ñ./0h123/
=espite !+ huner stri-e, or probabl+ because of it, 5 see with un!ista-able clarit+ that !+ leal battles in
the "upre!e Court are now over. Mr. Marcos is the sinle enius, co!posin and directin all the
proceedins, whether in the !ilitar+ tribunal or in the civil courts. 1his is the evil of one*!an rule at its
ver+ worst. .e has destro+ed the independence of the civil courts, abolished the leislature, controlled the
!ass !edia, curtailed our cherished liberties with the bac-in of the !ilitar+, which, ironicall+, e7ists 2for
the ood of the people.2
<ithout the "upre!e Court as an obstacle, 5 have decided to o on !+ huner stri-e and place !+ fate
and !+ life s0uarel+ in the hands of !+ accuser, prosecutor, and 6ude Mr. Marcos. 1hus the plain, na-ed
truth will be !ade clear to our people and to the rest of the world.
As 5 said, !+ huner stri-e is not for !+self alone, but for the !an+ thousands of Filipinos who are
helpless victi!s of the oppression and in6ustices of the so*called New "ociet+. 1he !eanin and thrust of
!+ strule and sacrifice transcend the li!ited 0uestion of absence or presence in the proceedins
before the !ilitar+ tribunal. 5 have therefore sole!nl+ vowed to continue !+ huner stri-e as a s+!bol of
our people2s fir! protest aainstBt.ñ./0h123/
%. 1he trial of civilians before !ilitar+ tribunals, particularl+ for offenses alleedl+
co!!itted b+ the! before !artial lawA
#. the lac- of 6udicial independence. 1rials b+ civil courts would still be a travest+ of
6ustice, especiall+ in cases where those in power, their relatives or associates, are
interested K for as lon as our 6udes re!ain ?casuals?. 1he+ should be iven
per!anent tenure, for their own ood and for the benefit of our people who have a vital
sta-e in a sound ad!inistration of 6ustice.
$. the absence of a enuine free press. "ince !artial law was proclai!ed, 5 have been
unfairl+ conde!ned and vilified b+ the controlled newspapers and tv*radio stations. 5
-now there are !an+ people who have been si!ilarl+ pilloried. But a enuine free press
is even !ore i!portant for those who are in power. 5t !a+ free the! fro! their arroance,
their pre6udices, and their pretensions, and help the! see the in6ustices the+ have
co!!itted aainst their own people.
4. the further continuation of !artial law and its evils and repressions. After all, Mr.
Marcos has alread+ announced to the world that he had actuall+ re!oved !artial law
since April, %&'4.? 8Petitioner A0uino2s letter, pp. 4*/.:
5n so far as petitioner2s ?huner stri-e? !a+ be understood as an atte!pt to sta!pede the Court to render a verdict
favorable to his views, 5 !ust state cateoricall+ that it is subversive and contu!acious, speciall+ because it is bein
ad!ittedl+ done with ?un!ista-able clarit+? of !ind and purpose. Fran-l+, 5 a! at a loss as to what -ind of procedure
would suit hi!. 5n the sa!e breadth that he professes to advocate that ever+ !an is entitled to e0ual protection of the
laws, he clai!s that he should be treated not as an ordinar+ accused but ?as a political rival?, evidentl+ !eanin, of the
President. .ow indeed is ?a political rival? of the Ad!inistrator of !artial law supposed to be prosecuted for an offense
co!!itted aainst the laws of the landN
Be that as it !a+, an+one can easil+ i!aine the un!anaeable situation and 6udicial chaos that would result should <e
create a precedent wherein the Court should +ield to the de!ands of a person under for!al chare of co!!ittin an
offense, as otherwise he would resort to a huner stri-e. Nonetheless, <e were so!ehow disposed to lean bac-wards
and rule interlocutoril+ as earl+ as <e could on the issue as to whether or not the respondent Militar+ Co!!ission was
riht in co!pellin petitioner to attend the perpetuation proceedins and thereb+ place his initial cause for the ?huner
stri-e? in its true perspective. But )ur efforts to this end were !et b+ petitioner2s Churchill li-e reaction that what <e could
possibl+ ive was ?too late and too little?, !anifested b+ his once !ore disauthori,in his law+ers fro! henceforth
spea-in for hi! and finall+ see-in the withdrawal of this case fro! our hands. 5s the Court supposed to e7tend to a
?political rival? of the President !ore than what the e7istin laws provide for othersN
As a Filipino !+self, 5 a! read+ to concede that petitioner is bein actuated b+ what he honestl+ believes to be his dut+ to
our countr+ and people. .is abidin lo+alt+ to his cause and his fir! conviction to attain his ob6ectives are to !e
ad!irable. But 5 re6ect an+ suestion that for the Court to uphold the lealit+ and constitutionalit+ of the e7istin
overn!ent is ini!ical to the national interests and ideals. 5 can see that the concept of !artial law presentl+ bein
evolved here as well as so!e features of its i!ple!entation do not confor! with certain views of the A!erican "upre!e
Court and so!e alien writers on the sub6ect, but is it i!perative that the "upre!e Court of the Philippines should adhere
to the doctrines laid down b+ alien authorities in order to be rihtN
5ncidentall+, it is beco!in increasinl+ evident that so!e reliious 0uarters as such would want their influence felt in the
resolution of the leal issues before @s. )ne does not have to di deep into the paes of histor+ to learn that nations and
peoples have also suffered where and when there was no separation of the church and state as when the+ were under
despots and autocrats. 5n an+ event, while one can co!!iserate and s+!pathi,e with petitioner for the personal
sufferins he has elected to undero, 5 cannot convince !+self that the+ are in an+wa+ co!parable with the aonies of
Christ at Calvar+, as see!inl+, 5 a! infor!ed, has been so!ehow or see!inl+ suested at a reliious atherin
so!eti!e ao of those who share convictions with petitioner. <ithal, 5 a! afraid that even the !ere atte!pt to draw such
a co!parison could be a sin of sacrilee and of havin strane ods before our onl+ .ol+ Redee!er.
B. "ilitary tri5&nals and trials for persons 2ho ha4e co--itted offenses against the o5Cecti4es of -artial la2 is a nat&ral
and logical conco-itant of -artial r&le.
1he lealistic and scholarl+ discussion in the !ain opinion of the issue of 6urisdiction of herein respondent Militar+
Co!!ission No. # needs no a!plification. 5 onl+ wish to punctuali,e a broader foundation for !+ concurrence. 5 have
alwa+s !aintained it is ele!entar+, historicall+ and leall+, that in an+ rei!e of !artial law, offenders aainst its
ob6ectives are and ouht to be tried b+ !ilitar+ tribunals in accordance with the procedure prescribed for the!. 1o feel
apprehensive than that unless the Court upholds petitioner2s contention that as a civilian he cannot be tried b+ respondent
co!!ission for the cri!es alleedl+ co!!itted prior to the procla!ation of !artial law, thousands of Filipinos run the ris-
of bein si!ilarl+ hailed before !ilitar+ courts and deprived of their constitutional rihts to due process, is to inore that
throuhout the life of all nations, when rebellions and revolutions were !ounted, no distinction has ever been drawn,
a!on those initin the uprisin which naturall+ was done before an+ declaration of !artial law, as to whether the+ are
civilians or !ilitar+ !en, for purposes of tr+in the! before the !ilitar+ courts of the leiti!ate or victorious overn!ent, at
least, whenever prosecution has to be underta-en before the hostilities were over. And in this connection, it !a+ be said
of !ore recent !ilitar+ tribunals tr+in rebels that !ore safeuards are bein adopted in order that the ele!entar+
re0uire!ents of due process !a+ be surel+ observed b+ the!. Moreover, it would be a !isconception of the true i!port of
this decision to suppose that it !a+ be ta-en advantae of b+ an+ future overn!ent, for, as 5 have e7plained in !+
concurrin opinion in the .abeas Corpus cases,
1
an+ self*restraint the Court has opted to e7ercise in its decisions so far
rendered, fro! assertin its 6udicial authorit+ to interfere with the actuations of the E7ecutive, considerin it has not found
an+ evidence of !anifest abuse of discretion or ross arbitrariness in the!, does not !ean the "upre!e Court has lost
the power to act accordinl+ in appropriate cases that !a+ co!e later. And there bein no 0uestion that Procla!ation
%3C% which established !artial law in the Philippines is
valid,
!
it necessaril+ follows that respondent !ilitar+ tribunal which has been created under it are vested with 6urisdiction to
tr+ and decide petitioner2s cases, it appearin that the chares and specifications aainst hi! are related to the causes
that ave occasion to the Procla!ation, no !atter that the offenses chared therein were co!!itted lon before the
issuance of said procla!ation. )therwise, the alternative would be to await the ter!ination of !artial law when all
passions shall have subsided and the courts could cal!l+ and without reard to the personal feelins of the 6ude as to
the !erits of the rebellion !a-e an i!partial decision, but that would !ean the continued detention of the petitioner in the
!eanti!e.
5t is insisted, however, that since the civil courts are open, it is deroative of their constitutional authorit+ to sanction
petitioner2s trial in a !ilitar+ co!!ission. "uch contention inores the funda!ental !ission of !ilitar+ courts durin !artial
law. 5n an+ !artial law situation wherein civil courts are continued, their co*e7istence with !ilitar+ tribunals ouht not to
create an+ conflict of 6urisdiction. 1he trial and punish!ent of offenders aainst the established order should as a !atter of
necessit+ be left in the hands of the !ilitar+ whereas the civil courts are supposed to aid in the preservation of nor!al
societ+ a!on the non*offenders b+ continuin the e7ercise of their 6urisdiction over all civil !atters which have no direct
relation to the i!peratives of the Procla!ation. And as ver+ well e7plained in the !ain opinion, the constitutional
re0uire!ents of due process are bein co!plied with even in the !ilitar+ tribunals.
5n leal conte!plation, there is here no di!inution !uch less a deroation of the 6udicial power vested b+ the Constitution
upon the "upre!e Court and other inferior courts established b+ law. As 5 !ade clear in !+ separate opinion in the
.abeas Corpus cases,
3
once the "upre!e Court refrains, durin a national e!erenc+, b+ virtue of the discretion
i!plicitl+ ranted to it b+ the people in the Constitution, fro! invalidatin the procla!ation of !artial law, because it is
convinced that there has been no patent arbitrariness in its issuance, which <e have actuall+ done alread+ in said cases,
there can be no leal ob6ection to the e7istence of !ilitar+ courts for the purposes 5 have 6ust indicated. And it !ust be so,
for it is entirel+ rational that !ilitar+ tribunals are peculiarl+ fit, in view of the !ore su!!ar+ and e7peditious procedure
desined for their functionin, to te!poraril+ ad!inister 6ustice in the pro!pt and unencu!berso!e !anner re0uired b+
the e7iencies of the situation. 5n other words, the theater*of*war test is not trul+ deter!inative of the constitutionalit+ of
!ilitar+ trials durin !artial law, even when !artial law is proclai!ed for the e7press purposes of si!ultaneousl+
refor!in societ+ with the suppression of the rebellion b+ causes therefore !a+ not recur. <hether or not the authorit+ of
the civil courts !a+ ive wa+ to !ilitar+ 6urisdiction should rather depend on the nature of the offenses co!!itted and its
relation to the eli!ination of the unnecessar+ hindrances or obstacles to the co!plete restoration of order and the
attain!ent of the social and political ob6ectives of the Procla!ation.
E. !etitioner7s allegation of pre#C&dg-ent, al5eit lac?ing in s&fficient C&ridical pers&asi4eness is ne4ertheless 2orthy of
serio&s consideration 5y the a&thorities 2ho can pro4ide relief.
1hat 5 a! so!ehow i!pressed b+ petitioner2s contention of supposed pre*6ud!ent of his case b+ the President who has
ordered the creation of the !ilitar+ courts and b+ who! their decisions are to be reviewed for final approval is no secret.
At the open hearin of this case before this Court on April %4 last, 5 had occasion to as- the "olicitor (eneral what
possible i!pedi!ents are there to the transfer of petitioner2s case to the civil courts, which can rihtl+ be done under the
law. But that was, of course, far fro! indicatin that 5 believe that indeed there could be such pre6ud!ent. 5 have faith
that in the dischare of his sole!n constitutionall+ prescribed oath to ?do 6ustice to ever+ !an?, President Marcos would
not be capable of wantonl+ discardin the inherent responsibilities of his hih office, -nowin as he does that he would not
be where he is were it not for the trust and confidence reposed in hi! b+ the people when the+ elected hi! as the !an
who b+ the e7ercise of the i!!ense powers iven hi! b+ the Constitution would precisel+ protect and defend the!
aainst in6ustice and oppression.
1ruth to tell, the thouht or suspicion of pre6ud!ent in !ilitar+ 6ustice durin !artial law is inevitable, for the obvious
reason that the concentration of powers in such a situation carries with it inherentl+ the spectacle of the ar!+ bein the
accuser and 6ude at the sa!e ti!e. <hen it is considered, however, that !ilitar+ courts are enerall+ colleiate, with
each !e!ber thereof bein oblied to vote secretl+ not onl+ on the issue of the uilt of the accused as to each chare
and specification but separatel+, also on the penalt+ to be i!posed, and that in i!portant cases, particularl+ capital ones
li-e so!e of those of petitioner, their decisions are auto!aticall+ sub6ect to review and reco!!endation b+ a nu!ber of
levels of authorit+, such as the Chief of "taff, the Board of Review, the "ecretar+ of National =efense etc., each with their
correspondin staff 6ude advocates, before reachin the President for the final verdict, one cannot escape the conviction
that !ore e7actin safeuards aainst an+ possibilit+ of partialit+ and pre6ud!ent !a+ not be found in the civil courts. 5t
is entirel+ wron, un6ust and unwarranted to thin- of all ar!+ !en as havin onl+ one !ind. After all, the+ are also
Filipinos li-e petitioner and counsel, and the+ cannot have less interest in and devotion to the sacred ideals for which our
co!!on countr+ and people e7ist.
Moreover, in the case at bar, the state!ents attributed to the President and which petitioner 0uotes and !aintains are
reflective of the President2s supposed pre*6ud!ent of his cases, viewed ob6ectivel+, would indicate at !ost onl+ an
offhand evaluation of the evidence then on hand, without reard to the other evidence now in possession of the
prosecution, and without countin those which petitioner will present on his behalf, and does not necessaril+ a!ount to a
pronounce!ent of uilt. As such, therefore, the+ do not sufficientl+ prove what the 6ud!ent of the President would be
after the whole evidence of petitioner2s cases shall have been e7a!ined and evaluated b+ hi!. 5n other words, fro! the
strictl+ leal point of view of petitioner2s pose about denial of due process to hi! b+ reason of pre6ud!ent lac-s
persuasiveness.
>eal standards aside, however, it is i!!ensel+ reassurin that the President has announced that as soon as the present
perpetuation proceedins are ter!inated, he will consider the advisabilit+ of transferrin the cases in 0uestion to the civil
courts. "hould that be done, and 5 have no reason for believin that it will not be so done, it will not onl+ be that petitioner
will be relieved of a reat deree of !ental torture, but, as i!portantl+ if not !ore so, the President shall have iven the
nation elo0uent proof not so !uch of his nobilit+ as of his deter!ination not to allow the decision in the cases of petitioner
to be in an+ !anner tainted b+ the slihtest suspicion of an+ personal feelin or opinion on his part. And 5 have no fears at
all that others who are also si!ilarl+ chared before !ilitar+ co!!issions will de!and the sa!e treat!ent, thereb+
subvertin the whole s+ste! of cri!e prosecution under !artial law 5 have earlier adverted to, for in the particular case of
petitioner, there is the sinular circu!stances that the President has !ade state!ents which have so!e relevance to his
cases, which it does not appear has been done in those of the others. Besides, under (eneral )rder No. 4&, the
President has alread+ transferred the !ass of the cases aainst civilians to the civil courts. Briefl+ then, while 5 hold that
there is nothin constitutionall+ wron with havin petitioner tried b+ a !ilitar+ tribunal, it is !+ conviction that it is
preferable fro! all other points of view that his cases be transferred to the civil courts, and not because in fact he will not
et 6ustice fro! the for!er, but because he will have !ore peace of !ind in the latter and the people will be spared ever+
doubt as to whether or not the slihtest ele!ent of partialit+ or bias has crept into one of the !ost i!portant trials in the
current histor+ of our countr+. But, of course, it is not within the a!bit of the authorit+ of even the Court itself, !uch less
this writer, to direct the President2s e7ercise of the powers vested in hi! b+ the ConstitutionA so, all that 5 can do is to voice
the faith and hope that the President !a+ not encounter an+ further obstacle to his actuall+ orderin the transfer of
petitioner2s cases to the civil courts in accordance with his affor!entioned public announce!ent, the sooner the better.
F. !etitioner has the right to 2ai4e his presence at the perpet&ation proceedings 5efore the respondent Co--ission.
As 5 stated earlier, what reall+ see!s to have initiall+ provo-ed petitioner2s decision to o on so!e -ind of a huner*stri-e
was the respondent Co!!ission2s turnabout in reard to the issue of whether or not he can waive his presence durin the
perpetuation proceedins before it. After rulin at first that he had such riht, subse0uentl+, upon !otion for
reconsideration of the prosecution, the Co!!ission reversed itself and ruled that his presence is indispensable and can
thus be secured co!pulsoril+. But if such action of the respondent co!!ission is the cause of petitioner2s huner stri-e,
as he had stated at the beinnin, he !a+ now desist fro! continuin with his rather perilous posture. All the !e!bers of
the Court participatin in this case are areed that the rulin in !eople 4s. A4anceña
4
relied upon b+ the prosecution
should be at least !odified, if not co!pletel+ overturned. "i7 of us, na!el+, ;ustices Fernando, 1eehan-ee, Antonio,
MuEo, Pal!a, A0uino and this writer are of the view that petitioner, althouh under detention and chared with a capital
offense, has the riht to absent hi!self at an+ stae of the trial, while the other five ;ustices, na!el+, ;ustices Castro,
Ma-asiar, Esuerra, Concepcion ;r. and Martin, believe also that that riht e7ists sub6ect however to the 0ualification that
it cannot be invo-ed whenever his presence is needed for identification purposes. Accordinl+, it is entirel+ up to the
petitioner whether or not to attend the perpetuation proceedins now oin on e7cept when he is to be identified b+ the
witnesses on the stand and onl+ for 6ust the ti!e needed for that e7clusive purpose.
"pea-in for !+self, 5 find e!inent !erit in the contention of petitioner that even for identification purposes he cannot be
!ade to be present at the trial aainst his will. "ince under the Constitution, trial of cri!inal cases in the absence of the
accused is allowed, when after the arrain!ent and in spite of due notice he fails to appear without 6ustification, pursuant
to "ection %& of the Bill of Rihts or Article 5G, 5 cannot see wh+ an accused who does not want to undero the e7perience
of bein repeatedl+ pointed to and of bein the taret of the curious e+es of the public, cannot elect to leave the defense
of his case and of his rihts to his counsel in his absence or even put hi!self co!pletel+ at the !erc+ of the court, secure
in the thouht that it is an+wa+ the inescapable dut+ of the 6ude not to allow an+thin illeal or inhu!an to be done to
hi!.
5 can understand wh+ an accused has to be present at the arrain!ent and at the readin of the sentence. 5n the for!er, it
has to be -nown to the court that he is indeed the person chared and that he personall+ understands the accusation
aainst hi!. More i!portantl+, the plea !ust be entered b+ hi! personall+ to avoid an+ !isconstruction or
!isrepresentation, innocent or otherwise. 5n the latter, it is essential that the accused hi!self should be aware fro!
personal -nowlede what is the verdict of the court, and if it be conviction, what is the penalt+ to be served b+ hi!. 1hese
are !atters too personal to per!it deleation. At the sa!e ti!e, his presence !a-es it si!pler in the public interest for the
authorities to enforce e7ecution of an+ adverse 6ud!ent. But 5 cannot see wh+ an accused should be co!pelled to be
present at the trial when he prefers perhaps the solitude of his cell to pra+ either for foriveness, if he -nows he is uilt+,
or, if he is innocent, for (od to illu!ine the court so there would be unerrin 6ustice in his case.
M+ understandin is that the proble! of identification of an accused !a+ be ade0uatel+ solved without violatin the
6ustified wishes of the accused to be left alone. 1o start with, if he is referred to b+ the witnesses of the prosecution b+
na!e, the court !a+ presu!e that the accused who has ac-nowleded his true na!e at the arrain!ent is the one
indicated. 1his Court ruled une0uivocall+ !ore than si7t+*five +ears ao in 8.S. 4s. Adolfo, %# Phil. #&9, and reiterated it in
!eople 4s. Santos, /$ Phil. C9$, twent+ +ears later, and there has been no contrar+ opinion since then, that the rebuttable
presu!ption of identit+ of person is applicable not onl+ in civil cases but also to the identification of the accused in cri!inal
cases. 1o !+ !ind, there is absolutel+ no need that the accused be personall+ identified b+ the court while the inculpatin
witness is testif+in, where the accused voluntaril+ waives his presence and even suests to the court, as petitioner has
done, to avail of the leall+ presu!ption 6ust !entioned. 8"ee "ec. / 8w:, Rule %$%.:
)f course, it is to be underscored that the presu!ption is C&ris tant&-. 1hus, the waiver of the presence of the accused at
the trial does not preclude hi! fro! presentin evidence to overco!e the presu!ption. 5 ad!it that the ensuin situation
!a+ pose proble!s for the prosecution, but where in the de!ocratic world is the accused supposed to lend his hand in
order to !a-e it that !uch easier for the court to convict hi!. )ur funda!ental law, no less than the rudi!entar+ rules of
fair pla+, e7pressl+ en6oins that the accused !a+ not be co!pelled to incri!inate hi!self. 5 ta-e such in6unction to be
consistent with !an2s inalienable riht to be treated with the dinit+ of a hu!an bein and it therefore e7tends to an+ and
all for!s of !a-in the accused aid the prosecution in provin its case.
5t is clai!ed that the state has the un0uestionable riht and dut+ to see to it that the accused is not convicted unless he is
dul+ identified. 1o the wisdo! and nobilit+ of such proposition, 5 !ust sa+ a!en. But 5 !aintain that it is an inconruit+ in
principle to predicate on such a 6ust pre!ise the conclusion that the state !a+ co!pel the accused to assist it b+
e7hibitin hi!self for purposes of identification. 5 a! aware of precedents to the effect that the co!pulsion aainst self*
incri!ination prohibited b+ the Bill of Rihts does not conte!plate acts re0uired of the accused which do not involve the
e!plo+!ent of his intellect. 5n other words, he cannot be !ade to produce evidence aainst hi!self, but he can be
co!pelled to perfor! !echanical acts conducive to that end. But 5 do not see an+ analo+ between the facts in those
precedents and the case at bar, and, in an+ event, 5 do not see the 6ustice and fairness of those precedents. As far as 5 a!
concerned, the prosecution !ust prove its ease b+ its own effort and within own resources and should not be per!itted to
depend on the accused for an+thin that will help it secure his conviction. 5 -now that the Constitution has placed
e!phasis on the duties and obliations of persons in the Philippines e0uall+ with the Bill of Rihts, but nowhere in those
pertinent provisions in Article G do 5 discern an+ dut+ or obliation on the part of an accused to help the prosecution in
havin hi!self identified b+ the witnesses of the state.
After havin been in continuous practice at the bar for !ore than three decades before 6oinin the Court, 5 should -now
that the al!ost invariable procedure practiced in the identification of accused persons at the trial is in a sense i!practical,
if not farcical. As the cases are called fro! the calendar, the accused are !ade to stand and evidence their presence
within the view of ever+bod+ in the courtroo! includin the witnesses of the prosecution. Rare is the occasion when
necessar+ precautions are ta-en at the initiative of !eticulous defense law+ers to prevent the witnesses fro! seein the
accused as the+ answer the callin of the calendar. M+ point is that an+ 0uibblin about the proper identification of the
accused b+ co!pellin his presence at the trial !a+ not be worth the irreparable in6ur+ to hu!an dinit+ that can be
caused b+ bodil+ and forcibl+ ta-in the accused fro! his place of confine!ent to the place of trial in the event he insists
on his pose that he is areeable an+wa+ that the presu!ption on identities 5 have referred to be applied to his case.
5n the precedents relied on b+ the prosecution, it is held that inas!uch as the accused is under detention, his person is
sub6ect to the disposition of the court before who! he is chared. 5 disaree. M+ position on this point is that his detention
is onl+ for the purpose of securin the e7ecution of the 6ud!ent in the eventualit+ of conviction and for no other purpose
deroative of his freedo! to waive his personal rihts related to the procedure of his trial. .is constitutional rihts ?to be
heard b+ hi!self or counsel, to be infor!ed of the nature and cause of the accusation aainst hi!, to have a speed+ and
public trial, to !eet the witnesses face to face and to have co!pulsor+ process to secure the attendance of witnesses and
the production of witnesses on his behalf? 8"ection %&, Art. 5G: includin those not to be ?co!pelled to be a witness
aainst hi!self ... to re!ain silent? and not to be sub6ected to ?force, violence, threat, inti!idation, or an+ other !eans
which vitiates 8his: free will? 8"ec. #3, id.: and even that of not bein ?twice put in 6eopard+ of punish!ent for the sa!e
offense? 8"ec. ##, id.: !a+ be waived b+ hi! provided the waiver is !ade properl+. As 5 see it, the riht to be present at
the trial is !ore or less the co!posite of these rihts 5 have enu!erated. "ince all of the! separatel+ are waivable, wh+
!a+ not the waiver of all of the! be done wholesale, so to spea-, as lon as the waiver is clearl+ and voluntaril+
!anifested to the court. Above all, 5 consider the riht of an accused to hu!an dinit+ to be !ore precious than all his
other rihts, hence 5 cannot see the point in co!pellin the accused to sacrifice his hu!an dinit+ for the sa-e of enablin
the prosecution to identif+ hi! in person when the sa!e end can as well be leall+ attained without e7actin fro! hi!
such sacrifice.
"ustainin as 5 do sustain the riht of petitioner to absent hi!self at the trial proper, it is unnecessar+ for !e to discuss
whether or not the perpetuation proceedins constitute part of the trial. 5 !ust !a-e it clear, however, than even if <e
were to hold that the+ are part of the trial proper, 5 insist that if the witnesses who have testified or will testif+ at the
perpetuation proceedins should be available when the trial actuall+ ta-es place it is the riht of the accused to have the!
recalled and to be e7a!ined further and even anew in the sound discretion of the trial court. Presidential =ecree $#C,
pararaph #, a!endin subpararaph 4 b 8': of Presidential =ecree No. $& is to be so construed, in the interest of
fairness and 6ustice.
As 5 close this concurrence, two thouhts continuousl+ recurrin in !+ !ind durin its preparation -eep urin articulation.
1he first is that to co!!it suicide is prohibited b+ the laws of (od and !an. No one has the riht to ta-e his life for an+
reason. <ithal, leadership in an+ field of hu!an endeavor creates a responsibilit+ that -nows no surcease for an+ -ind of
convenience. Perseverance of purpose to be of real sinificance and worth re0uires one2s survival. 1he future is
inscrutable the hand of fate uides onl+ those who bide their ti!e and do not despair before the desined !o!ent co!es.
1hus, it could +et be a cri!e also aainst the interests of our countr+ and people to indule in self*destruction when one
-nows that he has talents and attributes that can be offered for the attain!ent of the national destin+.
1he second concerns the "upre!e Court whose independence of conviction it is the bounden dut+ of ever+ Filipino to
-eep unsullied. 1he un-indest thin of all is for those to who! +ou concede the loftiest of !otives to i!pun rec-lessl+
+our own. 1he unceasin 0uest for the achieve!ent of the national oal naturall+ divides !en in all de!ocracies into
roups each co!posed of those sharin co!!on views and feelins as to how to !a-e the countr+ succeed earlier in
reali,in its ideals. "uch disparit+, however, cannot produce disunit+, as lon as ever+one involved because of official dut+
or choice trusts the ood faith of the other.
For the !e!bers of the Court to happen to coincide in leal views with the E7ecutive is not servilit+. Neither should it be
considered evidence of an+ !easure of orchestration or co!!on plannin. As a !atter of fact, there has never been an+
such thin. 1he best proof is that, as 5 have e!phasi,ed at the outset, this is the first !artial law case in which the
re0uired !a6orit+ for doctrinal purposes has been attained. <here then is the alleed orchestrationN And how could the
chare have basis in the face of the undeniable happenstance that no !artial law or constitutional decision has +et co!e
out fro! the Court without viorous and e7tensive dissents of notable consistenc+. 5ndeed, occasions there have been
when one or two !ore votes beca!e i!perative for a !ore effective and conclusive rulin, and no one can sa+ that
an+bod+ concerned received dictation as to what to do. )f !+ own -nowlede, 5 bear witness that not even a finer has
been lifted in an+ !anner aainst an+ of the dissenters. As of now, the Court has not found enouh cause to hold an+ of
the President2s actuations sub!itted for )ur scrutin+ to have overstepped constitutional bounds. 5t is evident that due care
is bein ta-en to avoid fault in this respect. 5 can i!aine no reason wh+ and no occasion when such effort will ever be
rela7ed at all. More so in the earnest viil b+ the "upre!e Court.
MUNO3 PALMA, J., dissentinB
5 concur with the dissentin )pinion of ;ustice Claudio 1eehan-ee with additional e7planation for !+ vote.
%. )n the Motion to withdraw Petition K
Fro! a letter of Benino A0uino, ;r. of April %4, %&'/, addressed to his wife, children, relatives, and friends sub!itted to
the Court and now part of the record of the case 8see pae ' of ;ustice 1eehan-ee2s dissentin opinion:, 5 a! convinced
that petitioner no loner desires to see- redress or relief fro! this Court. .e would rather !a-e of his pliht 8his continued
detention fro! "epte!ber #$, %&'#, in a !ilitar+ ca!p and trial before a Militar+ Co!!ission for cri!es alleedl+
co!!itted before the procla!ation of Martial >aw: a !atter of conscience between hi!self and the President of the
Republic, and offer his life for what he believes is a rihtful cause. <ho a! 5 to stand on the wa+ of this !an who offers
hi!self in supre!e sacrifice, and is read+ to consin his fate to his Ma-er, for his countr+ and his peopleN
#. )n the !erits of the Case K
5 vote to rant the Petition for Prohibition because, brushin aside the personalities of the parties involved, that is, the fact
that Benino A0uino, ;r. was a !e!ber of the "enate and a -nown leader of the )pposition at the ti!e !artial law was
proclai!ed and that President Ferdinand E. Marcos believes in the Rule of >aw not withstandin !artial rule, 5 a! called
upon at this !o!ent to la+ down a principle of law which will decide the fate, not onl+ of the present eneration but also
that of Filipinos still to be born. For the !ain 0uestion now at sta-e K whether or not !ilitar+ tribunals can tr+ and render
a verdict on ci4ilians for offenses alleedl+ co!!itted before or even durin !artial rule, notwithstandin the fact that civil
authorit+ is supre!e and civil courts are e7istin and functionin is supre!e and civil courts are e7istin and functionin
under the Constitution K raises before !+ e+es the rueso!e spectre of one, a hundred, a thousand civilian Filipinos
bein draed b+ the !iht+ ar! of the !ilitar+ before its own created and !anned tribunals, co!!issions, etc., for
offenses, real or i!ainar+, and tried and sentenced without the constitutional safeuards attendant to a trial b+ civil courts
8see paes %%*%$ of ;ustice 1eehan-ee2s )pinion for these safeuards:. 1rue it is, that the picture 5 con6ure before !e
!a+ not ta-e place at all under the present dispensation because President Ferdinand E. Marcos, as Co!!ander*in*
Chief of the Ar!ed Forces, is co!!itted to uphold the Constitution and, as 0uoted b+ ;ustice 1eehan-ee, believes in the
protection of the Bill of Rihts 8see pae $# of ;ustice 1eehan-ee2s )pinion:. But what about to!orrow, and the da+ after
to!orrow, when we shall all be one and the political at!osphere differentN >eal precepts which are to protect the basic
funda!ental rihts and liberties of an individual !ust be laid down not onl+ for the present but for all ti!es and for all
conditions. 1he Bill of Rihts !ust re!ain fir!, indestructible, and un+ieldin to all for!s of pressure, for li?e "o&nt Sinai
of "oses it can 5e the only ref&ge of a people in any cr&ci5le they -ay s&ffer in the co&rse of their destiny.
#oo,%o,).têñ.£îhqwâ£
% (. R. No. >*$//49, entitled ?5n the Matter of the Petition for .abeas Corpus of Benino ". A0uino, ;r., et
al., Petitioners, v.. .on. ;uan Ponce Enrile, et al., Respondents.?
# Martial >aw Cases 8A0uino v. Enrile:, Nos. >*$//49, >*$//$C, >*$//43, >*$//9', and
>*$//'$, "epte!ber %', %&'4, /& "CRA %C$*9/%.
$ Sheet ,o. ; K 5n Cri!inal Case No. MC*#*%& the chare sheet alleed violation of (eneral )rder Nos.
9 and ' in relation to Presidential =ecree No. &,
5n that the above*na!ed accused, person sub6ect to trial b+ the Militar+ 1ribunals, in or about the period
co!prisin the +ear %&'% to )ctober #3, %&'#, at #/ 1i!es "t., and %4 >edes!a Court, Pro6ect 9,
Mue,on Cit+ and Parana0ue, Ri,al, did then and there wilfull+, unlawfull+ and feloniousl+ have in his
possession, custod+ and control the followin firear!s, a!!unition, e7plosives and accessories, to wit ....
Sheet ,o. B K 5n Cri!inal Case No. MC*#*#3 the chare sheet alleed violation of the Anti*"ubversion
Act,
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused, BEN5(N) ". AM@5N), ;R., in or about the !onth of Ma+, %&9&, or prior andDor subse0uent
thereto, in Barrio Alto, .acienda >uisita, "an Miuel, 1arlac, 1arlac, did then and there -nowinl+, wilfull+,
unlawfull+ and feloniousl+ b+ overt acts, conspirin, confederatin with other leaders andDor !e!bers of
their said orani,ation, ive to one of the!, the other accused BEN;AM5N M. B5E, ;R. alias C)M=R
ME>)=J of the .MB andDor the NPA si7 89: ar!alite rifles to deliver the said firear!s aainst the dul+
constituted overn!ent of the Philippines.
Sheet ,o. E K 5n Cri!inal Case No. MC*#*#% the chare sheet also alleed violation of the Anti*
"ubversion Act,.
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused, BEN5(N) ". AM@5N), ;R., in or about the !onth of ;anuar+ %&'% or prior andDor subse0uent
thereto, at #/ 1i!es "t., Mue,on Cit+, did then and there -nowinl+, wilfull+, unlawfull+ and feloniousl+ b+
overt acts, conspirin, confederatin with other leaders andDor !e!bers of said orani,ations, ive to one
of the!, the other accused BEN;AM5N "AN(@J) alias C)M=R P@"A of the .MB andDor NPA one 8%:
AL*4' rifle plus two 8#: !aa,ines with several rounds of a!!unition and two 8#: auto!atic M*# carbines
8foldin t+pe:plus two 8#: banana t+pe !aa,ines with a!!unition for the purpose of usin said firear!s
aainst the dul+ constituted overn!ent of the Philippines.
Sheet ,o. F K 5n Cri!inal Case No. MC*#*## the chare sheet alleed the co!!ission of !urder in
relation to (eneral )rder No, %#*B,
5n that the above*na!ed accused, persons sub6ect to and triable b+ the Militar+ 1ribunals, conspirin
toether and confederatin with one C)M=R CR@O, who is alread+ deceased, durin the period of
co!prisin the last da+s of Nove!ber and # =ece!ber %&9', in Bo. "an Miuel, 1arlac, 1arlac, with intent
to -ill and all ar!ed with firear!s and in band, did, then and .there, wilfull+, unlawfull+ and feloniousl+ ta-e
one CEC5>5) "@MA1, Barrio Captain of Motrico, >a Pa,, 1arlac, fro! his house at said place and
thereafter did then and there shoot hi! inflictin a unshot wound on his head, thus causin his death as
a conse0uence.
1hat the 0ualif+in and eneric aravatin circu!stances of treacher+, evident pre!edication, use of
superior strenth, with the aid of ar!ed !en, disuise, craft and !otor vehicle were present in the
co!!ission of the cri!e.
Sheet ,o. G K 5n Cri!inal Case No. MC*#*#$ the chare sheet alleed violation of the Anti*"ubversion
Act,
"PEC5F5CA15)N 5B
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunal, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused BEN5(N) ". AM@5N), ;R., in or about the !onth of April, %&9& or prior andDor subse0uent
thereto, at #/ 1i!es "t., Mue,on Cit+, did then and there -nowinl+, wilfull+, unlawfull+ and feloniousl+ b+
overt acts, conspirin, confederatin with other leaders andDor !e!bers of said orani,ation, ive to said
orani,ations throuh its leaders or officers the su! P%/,333.33 for the purpose of usin said !one+ to
stae an NPA*sponsored de!onstration in Manila which was in fact carried out in Conress, MalacaEan,
and in the @" E!bass+ on %C April %&9& for the purpose above*!entioned.
"PEC5F5CA15)N 55B.
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused, BEN5(N) ". AM@5N), ;R., in or about the period co!prisin the earl+ part of %&9' or prior
andDor subse0uent thereto, in Conception, 1arlac, did then and there -nowinl+, willfull+, unlawfull+ and
feloniousl+ b+ overt acts, conspirin confederatin with other leaders andDor !e!bers of said
orani,ation, ive to one of the!, the other accused BERNABE B@"CAJN) alias C)M=R =AN1E of the
.MB andDor NPA, one 8%: caliber .4/ pistol with !aa,ine and a!!unition for the purpose of usin the
sa!e aainst the dul+ constituted overn!ent of the Philippines.
"PEC5F5CA15)N 555B
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused, BEN5(N) ". AM@5N), ;R., in or about the !onth of Auust, %&9', or prior andDor subse0uent
thereto, in Barrio "an Francisco, 1arlac, did then and there -nowinl+, willfull+, unlawfull+ and feloniousl+
b+ overt acts, conspirin, confederatin with other leaders andDor !e!bers of said orani,ation, ive to
one of the!, the other accused BERNABE B@"CAJN) alias C)M=R =AN1E, two 8#: caliber .4/ pistols
in the house of >eonida Arceo for the purpose of usin the said firear!s aainst the dul+ constituted
overn!ent of the Philippines.
"PEC5F5CA15)N 5GB
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e the
accused BEN5(N) ". AM@5N), ;R., in or about the !onth of )ctober, %&9&, prior andDor subse0uent
thereto in Barrio Alto, .acienda >uisita, "an Miuel, 1arlac, 1arlac, did then and there -nowinl+, willfull+,
unlawfull+ and feloniousl+ b+ overt acts, conspirin, confederatin with other leaders andDor !e!bers of
said orani,ation, ive to CM=R AR1.@R (ARC5A and ;)"E B@"CAJN) alias C)M=R ;)E two 8#:
ar!ored vests and a pair of wal-ie*tal-ie for the purpose of usin the! aainst the dul+ constituted
overn!ent of the Philippines.
"PEC5F5CA15)N GB
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivisions under the control and do!ination of an alien power, in order to achieve the sa!e the
accused BEN5(N) ". AM@5N), ;R. on or about %*# Nove!ber %&9/, or prior andDor subse0uent thereto,
in "an Miuel, 1arlac, 1arlac, did then and there -nowinl+, wilfull+, unlawfull+ and feloniousl+ b+ overt
acts, conspirin, confederatin with other leaders andDor !e!bers of said orani,ation, ive to one of
the! C)M=R A>5BA"BA" throuh C)M=R =AN5>) several firear!s and a!!unition which were
robbed and ta-en fro! the house of Manuel Rodriue, of .acienda Rodriue,, includin a carbine with a
telescopic siht, for the purpose of usin the said firear!s and a!!unition aainst the dul+ constituted
overn!ent of the Philippines and in fact said firear!s includin the carbine with a telescopic siht were
recovered fro! C)M=R A>5BA"BA" and his roup when the+ were -illed at Barrio Al!endras,
Concepcion, 1arlac.
"PEC5F5CA15)N G5B
5n that the above*na!ed accused, person sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB:andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its subdivisions b+ force,
violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused, BEN5(N) ". AM@5N), ;R., in or about the period co!prisin the +ear %&'3 to %&'%, or prior
andDor subse0uent thereto, at #/ ti!es "t., Mue,on Cit+, did then and there -nowinl+, wilfull+, unlawfull+
and feloniousl+ b+ overt acts, conspirin, confederatin with other leaders andDor !e!bers of said
orani,ation, ive and provide shelter andDor !edical treat!ent to woundedDsic-
officersDleadersD!e!bers of the .MBDNPA, to witB
%. R)BER1) "AN1)" alias .MBDNPA, to witB
#. BEN;AM5N "AN(@J) alias C)M=R P@"A
$. C)M=R ;@AN5N( R5GERA alias C)M=R ;@AN5N(
4. FERNAN=) B)R;A alias C)M=R FER
/. "5ME)N "AN(LAP alias C)M=R FRE=
9. C)M=R 1@C
'. PEP51) >)PEO alias B)J BA1)C
C. R)=)>F) RAM)" alias C)M=R RAM5R alias C)M=R R@=J
&. B)J B@>=)N( alias B)J P51C.)
%3. )"CAR PAC.EC) alias R)J
Sheet ,o. H K And in Cri!inal Case No. MC*#*#4 the chare sheet alleed violation of the Anti*
"ubversion Act,
5n that the above*na!ed accused, persons sub6ect to trial b+ the Militar+ 1ribunals, as ran-in leaders of
the Co!!unist Part+ of the Philippines andDor its !ilitar+ ar!s such as the .u-bon Mapapala+a n
Ba+an 8.MB: andDor the New People2s Ar!+ 8NPA: constitutin an orani,ed conspirac+ to overthrow the
(overn!ent of the Republic of the Philippines or the overn!ent of an+ of its political subdivisions b+
force, violence, deceit, subversion and other illeal !eans for the purpose of placin such overn!ent or
political subdivision under the control and do!ination of an alien power, in order to achieve the sa!e, the
accused BEN5(N) ". AM@5N), ;R., in or about the !onth of =ece!ber, %&'3, or prior andDor
subse0uent thereto, at #/ 1i!es "t., Mue,on Cit+, did then and there -nowinl+, wilfull+, unlawfull+ and
feloniousl+ b+ overt acts, conspirin, confederatin with other leaders andDor !e!bers of said
orani,ation, ive to BEN;AM5N "AN(@J) alias C)M=R P@"A and his NPA co!panions includin PC
>1 G5C1)R C)RP@", cash !one+ in the a!ount of P/33.33 for the purpose of rentin a car to be used
in raidin the Philippine Militar+ Acade!+, Bauio Cit+, of firear!s and a!!unition, which was in carried
out on #& =ece!ber %&'3.
4 Respondent2s Me!orandu! dated March %3, %&'/, pp. # to %#.
/ "ee Rollo, "upple!ental Petition, pp. ''*%$3A and "econd "uple!ental Petition, pp. %C/*#44.
/* ;ustices Castro, Barredo, Ma-asiar, Antonio, Esuerra, A0uino, Concepcion, ;r., and Martin.
9 Benino ". A0uino, ;r., et al. v. ;uan Ponce Enrile, et al., (.R. No. >*$//49A Roces, et al. v. "ecretar+ of
National =efense, >*$//$&A "oliven, et al. v. "ecretar+ of National =efense,
>*$//9'A and Rondon, et al. v. "ecretar+ of National =efense, >*$//'$, all pro!ulated on "epte!ber
%', %&'4, /& "CRA %C$*9/%.
' Benino ". A0uino, ;r., et al., v. Co!!ission on Elections, et al., (.R. No. >*43334, ;anuar+ $%, %&'/.
C "ee also =e Chave, 4. Oobel, >*#C39& and =i!aala, et al. v. Oobel, >*#C9%3, both pro!ulated ;anuar+
%', %&'4. 1hese two cases consider Presidential =ecree No. #' as ?part and parcel of the law of the land
accordin to the revised Constitution itself.?
& Militar+ co!!issions in A!erican practice are the traditional court ?durin the periods of !artial rule or
!ilitar+ overn!ent.? 8Fair!an, The *a2 of "artial R&le, %&4$ Ed., p. #9#:. 5t proceedins ?derives their
sole authorit+ fro! the e7istence of actual rebellion, and the dut+ of doin whatever !a+ be necessar+ to
0uell it, and to restore peace and order.? 81he Lin v. Allen H%&%#I# 5rish Rep. #4%.:
Accordin to Fair!an, ?a !ilitar+ co!!ission is a tribunal established to tr+ persons not sub6ect to our
!ilitar+ law, chared with violations of war or, in places sub6ect to !ilitar+ overn!ent or -artial r&le, with
offenses either of civil nature or aainst the reulations of the !ilitar+ authorities.? 8Fair!an, supra, p.
#'#.: )ne of the 6ustifications is iven for the trial of civilians b+ !ilitar+ co!!issions durin an
insurrection ?had been to tr+ to accused !ore 0uic-l+ with a view to stoppin !ore effectivel+ the
proress of the insurrection.? 8)5id., citin Finlason2s Rep. C$ ff., p. #9'.:
%3 <inthrop, "ilitary *a2 and !recedents, Gols. % and #, p. C$3.
%% Mo+er v. Peabod+, #%# @.". 'C, /$ >. ed. 4%%, 4%'.
%# "chwart,, Constit&tional *a2, p. %93.
%$ "tanton v. (odfre+, 8%C/%:, % "earle, "upre!e Court of Cape of (ood .ope, cited in Fair!an, *a2 of
"artial R&le, pp. %$#*%$$.
%4 ?=ue process of law does to necessaril+ !ean a 6udicial proceedin K the proceedin !a+ be
adapted to the nature of case K but it does necessitate an opportunit+ for a hearin and a defense.
Ballard v. .unter, %&3', #34 @.". #4%, #//, #' ". Ct. #9%, /% >. ed. 49%A "i!on v. Craft, %&3%, %C# @.".
4#', 4$', #% ". Ct. C$9, 4/ >. ed. %%9/A 5n re Br+ant, %CC/, $ Mac-e+ 4C&. "ee >oue v. Fennin, %&3',
#& App. =.C. /%&, /#/A cf. Matter of >a!bert, %&3%, %$4 Cal. 9#9, 99 P. C/%, // >.R.A. C/9, C9 A!. "t.
Rep. #&9A 5n re <ell!an, %C&9,$ Lan. App. %33, 4/ P. '#9A "tate v. Billins, %C&4, // Minn. 49', /' N.<.
#39,'&4, 4$ A!. "t. Rep. /#/A Allor v. New ;erse+ "tate .ospital, %&%#, C3 N.;. E0. $C9, C4 A. '%%A 5n re
Allen, %&3&, C# Gt. $9/, '$ A. %3'C, #9 >.R.A., N.". #$#.? 8Barr+ v. .all, &C F. #d ###.:
?=ue process is not necessaril+ 6udicial...? 8Mendo,a Espuelas v. Provincial <arden of Bohol, (.R. No. >*
%$##$, Ma+ $3, %&93, %3C Phil. $/$A 5nsular (ovt. v. >in "u Fan, %/ Phil. /CA Forbes v. 1iaco, %9 Phil.
/$4A 1an 1e v. Bell, #' Phil, #' Phil. $/4A =e >eon v. =irector of Prisons, $% Phil., 93A @.". v. (o!e,
;esus, $% Phil. #%CA @.". v. 5nacio, $$ Phil. #3#A Corne6o v. (ariel, 4% Phil., %CCA and People v. Ponce de
>eon, /9 Phil. $C9.:
?@nder ordinar+ circu!stances the constitutional uarant+ as to due process of law i!plies a for!al
6udicial proceedin. 5n fact, !ost of the definitions refer to 6udicial proceedins as an ele!ent of due
process of law. Nevertheless, it is settled that such proceedins are not an indispensable re0uisite in all
cases. 5t is accordinl+ said that the ter! Pproceedin2 !eans such an e7ercise of the powers of
overn!ent as the settled !a7i!s of the law per!it and sanction, under such safeuards for the
protection of individual rihts as these !a7i!s prescribe for the class of cases to which the one in
0uestion belons. Muestions !a+ arise which !a+ be best deter!ined otherwise than b+ ordinar+
process of 6udicial investiation without violatin the constitutional provision as to due process of law. 5n
!an+ !atters the tribunal re0uire!ent of due process !a+ be !et b+ a board or co!!ission, or an
e7ecutive or ad!inistrative officer or tribunal, or notar+ public, or even a private bod+. 8%9 A!. ;ur. #d
"ec. /C%.:
%/ )5id., "ec. /4C.
%9 Arnault v. Pecson, C' Phil. 4%C, 4##.
%' 1hus, a!on its provisions areB
?b. =urin 1rial. K
777 777 777
8/: Rights of Acc&sed. K 1he accused shall be entitledB
8a: 1o challene for cause an+ !e!ber of the co!!ission based on an+ of the rounds provided in the
Manual for Courts*Martial.
8b: 1o receive cop+ of the chares at least five 8/: da+s in advance of the date of initial hearin.
8c: 1o be present at the arrain!ent, when he enters a plea of uilt+ and at the pronounce!ent of
6ud!ent of conviction. <here the accused is in custod+ or chared with a capital offense, he shall be
entitled to be present at all states of the trial. 5n cases where there is alleation of conspirac+ and one or
!ore accused are available for trial and others are not, trial !a+ proceed aainst all, provided, that the
indict!ent shall have been published at least once a wee- for two consecutive wee-s in an+ newspapers
of eneral circulation and a cop+ of a notice of trial shall have been served on the accused or on his ne7t
of -in or at his last -nown residence or business address with a person of sufficient discretion to receive
the sa!e.
8d: 1o be represented durin the trial b+ defense counsel appointed b+ the convenin authorit+, or counsel
of his own choice if practicable or to conduct his own defense. 5n the event that he is allowed a counsel of
his own choice, he !a+ elect to retain or e7cuse the appointed defense counsel.
8e: 1o testif+ on his own behalf and present evidence in his defense, and cross*e7a!ine an+ witness who
personall+ appears before the co!!ission.
8f: 1o have the substance of the chares and specifications, the proceedins and an+ docu!entar+
evidence translated when he is unable to understand the!.
8: 1o have a cop+ of the record of trial within a reasonable ti!e after trial..
89: *a2 "e-5er. K 1he rulin of the law !e!ber on the ad!issibilit+ of evidence and on all interlocutor+
0uestions 8i.e., all 0uestions other than the findins of uilt or innocence and sentence: other than
challenes, !otion for a findin of not uilt+ or sanit+ of the accused shall be final.
8': 4idence. K 8a: 1he rules set forth in the Manual for Courts*Martial shall nor!all+ be applied. <here
the strict application of said rules is not feasible, the Co!!ission !a+ !odif+ the sa!e consistent with
the re0uire!ents of 6ustice. 5n such event, the co!!ission should accord the accused or his counsel and
the trial counsel reasonable notice before appl+in the !odified rules. Nothin under this rule should,
however, allow the co!!ission to ad!it hearsa+ evidence nor to convict the accused without proof
be+ond reasonable doubt.
8C: Trial !roper !roced&re. K After the period for challenes and the co!!ission havin been
e!panelled, the trial shall be conducted substantiall+ as follows unless !odified b+ the co!!ission
pursuant to 8':8a: aboveB
8a: Each chare and specification shall be read, or its substance stated, in open court.
8b: 1he presidin !e!ber shall as- each accused whether he pleads ?(uilt+? or ?not (uilt+?. At this stae
the accused !a+ !ove to 0uash the chare under the sa!e rounds, procedure, and conditions
prescribed in the Revised Rules of Court of the Philippines, e7cept that the !otion shall onl+ be oral.
8c: 1he prosecution shall !a-e its openin state!ent.
8d: 1he witnesses and other evidence for the prosecution shall be heard or presented. At the close of the
case for the prosecution, the co!!ission, !a+ on !otion of the defense for a findin of not uilt+,
consider and rule whether the evidence before the co!!ission supports the chares aainst the
accused. 1he co!!ission !a+ rant, den+ or defer action on such !otion.
8e: 1he defense !a+ !a-e an openin state!ent prior to presentin its case.
8f: he witness and other evidence for the defense shall be heard or presented. 1hereafter the prosecution
and defense shall introduce evidence in rebuttal.
8: he prosecution and thereafter the defense shall deliver their respective su!!ations.
8h: 1he co!!ission shall thereafter close and deliberate on the findins and sentence and shall not
ad6ourn until it has arrived at and announced the findins and sentence.
8i: "anner of $oting and ,&-5er of $otes Re1&ired. K Gotin on the findins and sentence shall be b+
secret written ballot. 1he !ini!u! nu!ber of votes re0uired for a conviction or sentence shall be as
followsB
%. 1o convictB
a. For an offense carr+in a !andator+ death penalt+ K five 8/: !e!bers.
b. For other offenses K 1wo*thirds of the !e!bers present at the ti!e the vote is ta-en.
#. 1o sentenceB
a. =eath K Five8/: !e!bers.
b. )ther penalt+ K 1wo*thirds of the !e!bers present at the ti!e the vote is ta-en.
8&: Sentence. K 1he sentence shall be co!!ensurate with the offense co!!itted. A !ilitar+ co!!ission
shall appl+ the penalties prescribed in !artial law orders or decrees and in their absence, the penalties
prescribed b+ applicable laws. 5n the absence of both, the penalties prescribed b+ the Articles of <ar and
Manual for Courts*Martial shall be the uide. Conviction auto!aticall+ carries with it dis!issal fro! the
service if the accused is a co!!issioned officer, overn!ent official or e!plo+ee, and dishonorable
dischare if an enlisted person of the Ar!ed Forces of the Philippines, unless otherwise decreed in the
6ud!ent.
8%3: Record. K A !ilitar+ co!!ission is a court of record. A verbati! record of its proceedins shall be
!ade. 5t shall be prepared b+ the trial counsel under the direction of the co!!ission. "uch record,
certified b+ the presidin !e!ber of the co!!ission or his successor shall be delivered or trans!itted to
the convenin authorit+ as soon as possible after trial.
8%%: Conte-pt. K A !ilitar+ co!!ission !a+ punish direct conte!pt with confine!ent for not !ore than
one 8%: !onth and indirect conte!pt with confine!ent for as lon as the person fails to co!pl+ or obe+ a
lawful order of the co!!ission.
c. After Trial K
8%: Action 5y Con4ening A&thority. K Ever+ record of trial b+ !ilitar+ co!!ission shall be forwarded to
the Chief of "taff, Ar!ed Forces of the Philippines for action. 5f the sentence i!posed b+ the !ilitar+
co!!ission is death or i!prison!ent for twent+ 8#3: +ears and one 8%: da+ or !ore, the Chief of "taff,
Ar!ed Forces of the Philippines shall refer the record of trial to a Board of Review for review. For this
purpose, he shall constitute such Boards of Review as !a+ be necessar+. 1he Board of Review shall
trans!it its opinion toether with the record of trial to the Chief of "taff, Ar!ed Forces of the Philippines
for action.
8#: xec&tion of Sentence. K E7cept as otherwise herein provided no sentence of a !ilitar+ co!!ission
shall be e7ecuted unless the sa!e is approved and ordered e7ecuted b+ the Chief of "taff, Ar!ed Forces
of the Philippines. <here the sentence i!posed b+ a !ilitar+ co!!ission is death or if the Chief of "taff
reco!!ends that a penalt+ of death should be i!posed, in a case where the sentence i!posed b+ a
!ilitar+ co!!ission is less than death, the record of trial shall be forwarded to the President throuh the
"ecretar+ of National =efense, for confir!ation or approval. No sentence of death shall be e7ecuted
unless ordered e7ecuted b+ the President. 5n an+ case, the President shall have the power to reverse,
confir!, increase the penalt+ i!posed or otherwise !odif+ an+ decision of the !ilitar+ co!!ission.? Pres.
=ecree No. $&, Rules (overnin the Creation, co!position, ;urisdiction, Procedure, and other !atters
Relevant to Militar+ 1ribunals.: