DOJ Unnumbered Opinion

1st Indorsement
June 1, 1946

Respectfully referred, through the Honorable, the Secretary of National Defense, to the Chief of Staff,
Philippine Army, Manila.

According to the within papers, one Fortunato Apuhin is accused before the Justice of the Peace Court
of Dumaguete, Negros Oriental, of homicide through reckless imprudence. Inasmuch as said Apuhin
was, on the date of the offense, March 18, 1946, as he still is, connected with the Philippine Army as
staff sergeant of Headquarters Co., 1st Batt., 53rd Infantry, a request was made to his superior officer
for his surrender to the civil authorities for the corresponding preliminary investigation. However, said
officer (Captain Joaquin E. Velarde) informed that 'the preliminary investigation of the case . . . is
definitely postponed by this Office on the ground that he (the accused) is facing charges in the military
court", and, after quoting Article 75 of Commonwealth Act No. 408 (the Articles of War, PA), stated: ". . .
It is honestly believed that 'war' still exists. so far there has been no congressional (U.S.) declaration of
peace. Announced eventual popping operations of Jap remnants in Negros islands will demand
preservation of man power and indicates existence of war".

Article 75 referred to provides:

"Art. 75. DELIVERY OF OFFENDERS TO CIVIL AUTHORITIES. — When any person subject to military
law, except one who is held by the military authorities to answer, or who is awaiting trial or result to
trial, or who is undergoing sentence of a crime of offense punishable under these articles, is accused of a
crime or offense committed and punishable by law or by ordinance the commanding officer is required,
except in time of war, upon application duly made, to use his utmost endeavor to deliver over such
accused person to the civil authorities, or to aid the officer of justice in apprehending and securing him,
in order that he may be brought to trial. Any commanding officer who upon such application refuses or
willfully neglects, except in time of war, to deliver over such accused person to the civil authorities or to
aid officers or justice in apprehending and securing him shall be dismissed from the service or suffer
such other punishment as a court-martial may direct. cdasia

"When, under the provisions of this article, delivery is made to the civil authorities of an offender
undergoing sentence of a court-martial, such delivery, if followed by conviction, shall be held to
interrupt the executing of the sentence of the court-martial, and the offender shall be returned to
military custody, after having answered to the civil authorities for his offense, for the contemplation of
the said court-martial sentences."

As may be seen from the legal provision just quoted, in time of war, the commanding officer of a person
subject to the military law accused of a crime before the civil courts, is not required to turn over said
person to the civil authorities.

In the case of Raquiza et al. vs. Bradford et al., G.R. No. 1-44, decided by our Supreme Court on
September 13, 1945, (14 O.G. 626), said High Tribunal, construing the Proclamation issued by General of
the Army MacArthur on December 29, 1944, ordering the apprehension of certain citizens of the
Philippines and 'to hold them in restraint for the duration of the war; whereafter I shall release them to
the Philippine Government for its judgment upon their respective cases", said:

"Has the war terminated within the meaning of that part of his proclamation wherein the Commander-
in-Chief declared his purpose to hold such persons in restraint 'for the duration of the war'? We are of
opinion that it has not",

the Court citing the case of U.S. vs. Tubig, 3 Phil. 244, in which it was said that "it is necessary to refer to
a public act of the Executive Department to fix the date of the closing of the war". Of course, up to now
there has not been such as public act.

But there are strong reasons why the accused herein should be delivered to the civil authorities so that
he may be dealt with according to law.

Undoubtedly, the intention of the lawmaker in providing in the aforesaid Article 75 that in time of war a
commanding Officer is not required to surrender a person subject to military law who is accused of a
crime, to the civil authorities, is as stated by Capt. Velarde, to preserve man-power, for actual combat in
said war. Now, although the Pacific War has not as yet ended in the legal sense, still it cannot be
gainsaid that, upon the surrender of Japan, hostilities have ceased. In fact, the U.S. armed forces have,
for some time already, been undergoing demobilization. And even those who were apprehended, by
virtue of the above mentioned Proclamation of Gen. MacArthur, as constituting threat to "the security
of our military forces or the success of our military operations", and for that reason were "held in
restraint for the duration of the war", have been turned over to the Commonwealth Government. For
the supposedly announced "eventual" mopping up operations against Jap remnants in Negros, it may
not be so necessary for the Philippine Army to maintain its full war strength as not to be able to spare a
single man who is needed for the speedy administration of justice.

It is true, that as stated in the within papers, the accused above referred to has been charged before a
military court with a violation of Article 94 of the Articles or War. But this Article provides:

"Art. 94. VARIOUS CRIMES. — Any person subject to military law who commits any crime, breach
of law of violation of municipal ordinance, which is recognized as an offense of a penal nature and is
punishable under the penal laws of the Philippines or under municipal ordinances, on a Philippine Army
reservation, shall be punished as a court-martial may direct; PROVIDED, That officers and enlisted men
of the Philippine Constabulary shall not be triable by court-martial for any crimes, breach of law or
violation of municipal ordinance committed under this article. In imposing the penalties for offenses
falling within this article, the penalties for such offenses provided in the penal laws of the Philippines or
in such municipal ordinances shall be taken into consideration."

This provision contemplates an offense punishable by the penal laws or municipal ordinances committed
on a Philippine Army reservation, and there is nothing in the within papers to show that the offense
charged before the court-martial was perpetuated on any such reservation. Indeed the specification in
the "charge sheet" contains no allegation to this effect. It goes without saying that the said charge or
accusation must necessarily fail.

Wherefore, it is hereby requested that proper instruction be given the Commanding Officer of
Headquarters Company, 1st Battalion, 53rd Infantry, P.A., at Dumaguete, Negros Oriental, for the
delivery of the person of S/Sgt. Fortunate Apuhin to the corresponding civil authorities of said province,
to answer the complaint filed against him for homicide through reckless imprudence.

(SGD.) ROMAN OZAETA

Secretary of Justice