Crim Law 1 - Cases

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 193707 December 10, 2014
NORMA A. DEL SOCORRO, for and in behalf of her minor child RODERIGO NORJO VAN WILSEM, Petitioner,
vs.
ERNST JOHAN BRINKMAN VAN WILSEM, Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set aside
1
the Orders dated February 19, 2010 and September 1, 2010, respectively, of the Regional Trial Court of Cebu City (RTC-
Cebu), which dismissed the criminal case entitled People of the Philippines v. Ernst Johan Brinkman Van Wilsem,
docketed as Criminal Case No. CBU-85503, for violation of Republic Act (R.A.) No. 9262, otherwise known as the Anti-
Violence Against Women and Their Children Act of 2004.
The following facts are culled from the records:
Petitioner Norma A. Del Socorro and respondent Ernst Johan Brinkman Van Wilsem contracted marriage in Holland on
2
September 25, 1990. On January 19, 1994, they were blessed with a son named Roderigo Norjo Van Wilsem, who at the
3
time of the filing of the instant petition was sixteen (16) years of age.
Unfortunately, their marriage bond ended on July 19, 1995 by virtue of a Divorce Decree issued by the appropriate Court
4 5
of Holland. At that time, their son was only eighteen (18) months old. Thereafter, petitioner and her son came home to
6
the Philippines.
According to petitioner, respondent made a promise to provide monthly support to their son in the amount of Two Hundred
7
Fifty (250) Guildene (which is equivalent to Php17,500.00 more or less). However, since the arrival of petitioner and her
8
son in the Philippines, respondent never gave support to the son, Roderigo.
Not long thereafter, respondent cameto the Philippines and remarried in Pinamungahan, Cebu, and since then, have been
9
residing thereat. Respondent and his new wife established a business known as Paree Catering, located at Barangay
10
Tajao, Municipality of Pinamungahan, Cebu City. To date, all the parties, including their son, Roderigo, are presently
11
living in Cebu City.
On August 28, 2009, petitioner, through her counsel, sent a letter demanding for support from respondent. However,
12
respondent refused to receive the letter.
Because of the foregoing circumstances, petitioner filed a complaint affidavit with the Provincial Prosecutor of Cebu City
against respondent for violation of Section 5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust refusal to support his
13
minor child with petitioner. Respondent submitted his counter-affidavit thereto, to which petitioner also submitted her
14
reply-affidavit. Thereafter, the Provincial Prosecutor of Cebu City issued a Resolution recommending the filing of an
information for the crime charged against herein respondent.
The information, which was filed with the RTC-Cebu and raffled to Branch 20 thereof, states that:
That sometime in the year 1995 and up to the present, more or less, in the Municipality of Minglanilla, Province of Cebu,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully,
unlawfully and deliberately deprive, refuse and still continue to deprive his son RODERIGO NORJO VAN WILSEM, a
fourteen (14) year old minor, of financial support legally due him, resulting in economic abuse to the victim. CONTRARY
15
TO LAW.
Upon motion and after notice and hearing, the RTC-Cebu issued a Hold Departure Order against
16 17
respondent. Consequently, respondent was arrested and, subsequently, posted bail. Petitioner also filed a
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Motion/Application of Permanent Protection Order to which respondent filed his Opposition. Pending the resolution
19
thereof, respondent was arraigned. Subsequently, without the RTC-Cebu having resolved the application of the
protection order, respondent filed a Motion to Dismiss on the ground of: (1) lack of jurisdiction over the offense charged;
20
and (2) prescription of the crime charged.
21
On February 19, 2010, the RTC-Cebu issued the herein assailed Order, dismissing the instant criminal case against
respondent on the ground that the facts charged in the information do not constitute an offense with respect to the
respondent who is an alien, the dispositive part of which states:
WHEREFORE, the Court finds that the facts charged in the information do not constitute an offense with respect to the
accused, he being an alien, and accordingly, orders this case DISMISSED.
The bail bond posted by accused Ernst Johan Brinkman Van Wilsem for his provisional liberty is hereby cancelled (sic)
and ordered released.
SO ORDERED.
22
Cebu City, Philippines, February 19, 2010.
Thereafter, petitioner filed her Motion for Reconsideration thereto reiterating respondent’s obligation to support their child
23
under Article 195 of the Family Code, thus, failure to do so makes him liable under R.A. No. 9262 which "equally applies
24
to all persons in the Philippines who are obliged to support their minor children regardless of the obligor’s nationality."
25
On September 1, 2010, the lower court issued an Order denying petitioner’s Motion for Reconsideration and reiterating
its previous ruling. Thus:
x x x The arguments therein presented are basically a rehash of those advanced earlier in the memorandum of the
prosecution. Thus, the court hereby reiterates its ruling that since the accused is a foreign national he is not subject to our
national law (The Family Code) in regard to a parent’s duty and obligation to givesupport to his child. Consequently, he
cannot be charged of violating R.A. 9262 for his alleged failure to support his child. Unless it is conclusively established
that R.A. 9262 applies to a foreigner who fails to give support tohis child, notwithstanding that he is not bound by our
domestic law which mandates a parent to give such support, it is the considered opinion of the court that no prima
faciecase exists against the accused herein, hence, the case should be dismissed.
WHEREFORE, the motion for reconsideration is hereby DENIED for lack of merit.
SO ORDERED.
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Cebu City, Philippines, September 1, 2010.
Hence, the present Petition for Review on Certiorari raising the following issues:
1. Whether or not a foreign national has an obligation to support his minor child under Philippine law; and
2. Whether or not a foreign national can be held criminally liable under R.A. No. 9262 for his unjustified failure to
27
support his minor child.
At the outset, let it be emphasized that We are taking cognizance of the instant petition despite the fact that the same was
directly lodged with the Supreme Court, consistent with the ruling in Republic v. Sunvar Realty Development
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Corporation, which lays down the instances when a ruling of the trial court may be brought on appeal directly to the
Supreme Court without violating the doctrine of hierarchy of courts, to wit:
x x x Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only
questions of law are raised or involved. This latter situation was one that petitioners found themselves in when they filed
the instant Petition to raise only questions of law. In Republic v. Malabanan, the Court clarified the three modes of appeal
from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was
rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under
Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for
review on certiorari before the Supreme Court under Rule 45. "The first mode of appeal is taken to the [Court of Appeals]
on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of
fact, of law, or mixed questions of fact and law. The third mode of appealis elevated to the Supreme Court only on
questions of law." (Emphasis supplied)
There is a question of law when the issue does not call for an examination of the probative value of the evidence
presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of law
and jurisprudence on the matter. The resolution of the issue must rest solely on what the law provides on the given set of
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circumstances.
Indeed, the issues submitted to us for resolution involve questions of law – the response thereto concerns the correct
application of law and jurisprudence on a given set of facts, i.e.,whether or not a foreign national has an obligation to
support his minor child under Philippine law; and whether or not he can be held criminally liable under R.A. No. 9262 for
his unjustified failure to do so.
It cannot be negated, moreover, that the instant petition highlights a novel question of law concerning the liability of a
foreign national who allegedly commits acts and omissions punishable under special criminal laws, specifically in relation
to family rights and duties. The inimitability of the factual milieu of the present case, therefore, deserves a definitive ruling
by this Court, which will eventually serve as a guidepost for future cases. Furthermore, dismissing the instant petition and
remanding the same to the CA would only waste the time, effort and resources of the courts. Thus, in the present case,
considerations of efficiency and economy in the administration of justice should prevail over the observance of the
hierarchy of courts.
Now, on the matter of the substantive issues, We find the petition meritorious. Nonetheless, we do not fully agree with
petitioner’s contentions.
To determine whether or not a person is criminally liable under R.A. No. 9262, it is imperative that the legal obligation to
support exists.
30
Petitioner invokes Article 195 of the Family Code, which provides the parent’s obligation to support his child. Petitioner
contends that notwithstanding the existence of a divorce decree issued in relation to Article 26 of the Family
31
Code, respondent is not excused from complying with his obligation to support his minor child with petitioner.
On the other hand, respondent contends that there is no sufficient and clear basis presented by petitioner that she, as well
32
as her minor son, are entitled to financial support. Respondent also added that by reason of the Divorce Decree, he is
33
not obligated topetitioner for any financial support.
34
On this point, we agree with respondent that petitioner cannot rely on Article 195 of the New Civil Code in demanding
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support from respondent, who is a foreign citizen, since Article 15 of the New Civil Code stresses the principle of
nationality. In other words, insofar as Philippine laws are concerned, specifically the provisions of the Family Code on
support, the same only applies to Filipino citizens. By analogy, the same principle applies to foreigners such that they are
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governed by their national law with respect to family rights and duties.
The obligation to give support to a child is a matter that falls under family rights and duties. Since the respondent is a
citizen of Holland or the Netherlands, we agree with the RTC-Cebu that he is subject to the laws of his country, not to
37
Philippinelaw, as to whether he is obliged to give support to his child, as well as the consequences of his failure to do so.
38
In the case of Vivo v. Cloribel, the Court held that –
Furthermore, being still aliens, they are not in position to invoke the provisions of the Civil Code of the Philippines, for that
Code cleaves to the principle that family rights and duties are governed by their personal law, i.e.,the laws of the nation to
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which they belong even when staying in a foreign country (cf. Civil Code, Article 15).
It cannot be gainsaid, therefore, that the respondent is not obliged to support petitioner’s son under Article195 of the
Family Code as a consequence of the Divorce Covenant obtained in Holland. This does not, however, mean that
respondent is not obliged to support petitioner’s son altogether.
In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the
40
foreign law. In the present case, respondent hastily concludes that being a national of the Netherlands, he is governed
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by such laws on the matter of provision of and capacity to support. While respondent pleaded the laws of the
Netherlands in advancing his position that he is not obliged to support his son, he never proved the same.
It is incumbent upon respondent to plead and prove that the national law of the Netherlands does not impose upon the
parents the obligation to support their child (either before, during or after the issuance of a divorce decree), because
42
Llorente v. Court of Appeals, has already enunciated that:
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to takejudicial notice of
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them. Like any other fact, they must be alleged and proved.
In view of respondent’s failure to prove the national law of the Netherlands in his favor, the doctrine of processual
presumption shall govern. Under this doctrine, if the foreign law involved is not properly pleaded and proved, our courts
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will presume that the foreign law is the same as our local or domestic or internal law. Thus, since the law of the
Netherlands as regards the obligation to support has not been properly pleaded and proved in the instant case, it is
presumed to be the same with Philippine law, which enforces the obligation of parents to support their children and
penalizing the non-compliance therewith.
45
Moreover, while in Pilapil v. Ibay-Somera, the Court held that a divorce obtained in a foreign land as well as its legal
effects may be recognized in the Philippines in view of the nationality principle on the matter of status of persons, the
Divorce Covenant presented by respondent does not completely show that he is notliable to give support to his son after
the divorce decree was issued. Emphasis is placed on petitioner’s allegation that under the second page of the aforesaid
46
covenant, respondent’s obligation to support his child is specifically stated, which was not disputed by respondent.
We likewise agree with petitioner that notwithstanding that the national law of respondent states that parents have no
obligation to support their children or that such obligation is not punishable by law, said law would still not find
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applicability,in light of the ruling in Bank of America, NT and SA v. American Realty Corporation, to wit:
In the instant case, assuming arguendo that the English Law on the matter were properly pleaded and proved in
accordance with Section 24, Rule 132 of the Rules of Court and the jurisprudence laid down in Yao Kee, et al. vs. Sy-
Gonzales, said foreign law would still not find applicability.
Thus, when the foreign law, judgment or contract is contrary to a sound and established public policy of the forum, the
said foreign law, judgment or order shall not be applied.
Additionally, prohibitive laws concerning persons, their acts or property, and those which have for their object public order,
public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations
or conventions agreed upon in a foreign country.
The public policy sought to be protected in the instant case is the principle imbedded in our jurisdiction proscribing the
splitting up of a single cause of action.
Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent
If two or more suits are instituted on the basis of the same cause of action, the filing of one or a judgment upon the merits
in any one is available as a ground for the dismissal of the others. Moreover, foreign law should not be applied when its
application would work undeniable injustice to the citizens or residents of the forum. To give justice is the most important
function of law; hence, a law, or judgment or contract that is obviously unjust negates the fundamental principles of
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Conflict of Laws.
Applying the foregoing, even if the laws of the Netherlands neither enforce a parent’s obligation to support his child nor
penalize the noncompliance therewith, such obligation is still duly enforceable in the Philippines because it would be of
great injustice to the child to be denied of financial support when the latter is entitled thereto.
We emphasize, however, that as to petitioner herself, respondent is no longer liable to support his former wife, in
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consonance with the ruling in San Luis v. San Luis, to wit:
As to the effect of the divorce on the Filipino wife, the Court ruled that she should no longerbe considered marriedto the
alien spouse. Further, she should not be required to perform her marital duties and obligations. It held:
To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private
respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner
should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The
latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated
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against in her own country if the ends of justice are to be served. (Emphasis added)
Based on the foregoing legal precepts, we find that respondent may be made liable under Section 5(e) and (i) of R.A. No.
9262 for unjustly refusing or failing to give support topetitioner’s son, to wit:
SECTION 5. Acts of Violence Against Women and Their Children.- The crime of violence against women and their
children is committed through any of the following acts:
xxxx
(e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the
right to desist from or desist from conduct which the woman or her child has the right to engage in, or attempting to restrict
or restricting the woman's or her child's freedom of movement or conduct by force or threat of force, physical or other
harm or threat of physical or other harm, or intimidation directed against the woman or child. This shall include, butnot
limited to, the following acts committed with the purpose or effect of controlling or restricting the woman's or her child's
movement or conduct:
xxxx
(2) Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or
deliberately providing the woman's children insufficient financial support; x x x x
(i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited
to, repeated verbal and emotional abuse, and denial of financial support or custody of minor childrenof access to the
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woman's child/children.
Under the aforesaid special law, the deprivation or denial of financial support to the child is considered anact of violence
against women and children.
In addition, considering that respondent is currently living in the Philippines, we find strength in petitioner’s claim that the
Territoriality Principle in criminal law, in relation to Article 14 of the New Civil Code, applies to the instant case, which
provides that: "[p]enal laws and those of public security and safety shall be obligatory upon all who live and sojourn in
Philippine territory, subject to the principle of public international law and to treaty stipulations." On this score, it is
indisputable that the alleged continuing acts of respondent in refusing to support his child with petitioner is committed here
in the Philippines as all of the parties herein are residents of the Province of Cebu City. As such, our courts have territorial
jurisdiction over the offense charged against respondent. It is likewise irrefutable that jurisdiction over the respondent was
acquired upon his arrest.
Finally, we do not agree with respondent’s argument that granting, but not admitting, that there is a legal basis for
charging violation of R.A. No. 9262 in the instant case, the criminal liability has been extinguished on the ground of
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prescription of crime under Section 24 of R.A. No. 9262, which provides that:
SECTION 24. Prescriptive Period. – Acts falling under Sections 5(a) to 5(f) shall prescribe in twenty (20) years. Acts
falling under Sections 5(g) to 5(I) shall prescribe in ten (10) years.
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The act of denying support to a child under Section 5(e)(2) and (i) of R.A. No. 9262 is a continuing offense, which
started in 1995 but is still ongoing at present. Accordingly, the crime charged in the instant case has clearly not
prescribed.
Given, however, that the issue on whether respondent has provided support to petitioner’s child calls for an examination
of the probative value of the evidence presented, and the truth and falsehood of facts being admitted, we hereby remand
the determination of this issue to the RTC-Cebu which has jurisdiction over the case.
WHEREFORE, the petition is GRANTED. The Orders dated February 19, 2010 and September 1, 2010, respectively, of
the Regional Trial Court of the City of Cebu are hereby REVERSED and SET ASIDE. The case is REMANDED to the
same court to conduct further proceedings based on the merits of the case.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA*

Associate Justice Associate Justice
BIENVENIDO L. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court's Division.

Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court's Division.
MARIA LOURDES P.A. SERENO

Chief Justice
Footnotes
* Designated Acting Member in lieu of Associate Justice Francis H. Jardeleza, per Special Order No. 1896 dated
November 28, 2014
1
Penned by Judge Bienvenido R. Saniel, Jr.; Annexes "A" and "B" to Petition, respectively, rollo, pp. 22-26.
2
Rollo, p. 6.
3
Id.
4
Id. at 7.
5
Annex "F" to Petition, rollo, p. 31.
6
Id. at 32.
7
Annex "A" to Petition, rollo, pp. 23-24.
8
Id. at 24.
9
Id.at 32.
10
Id.
11
Supra note 7, at 23-24.
12
Supra note 5, at 32.
13
Rollo, p. 7.
14
Id.
15
Id. at 22.
16
Id.
17
Id. at 24.
18
Id. at 8.
19
Id.
20
Id.
21
Supra note 7.
22
Id.at 24.
23
Art. 195. Subject to the provisions of the succeeding articles, the following are obliged to support each other to
the whole extent set forth in the preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and their legitimate children and the legitimate and illegitimate children of the latter;
(4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; and
(5) Legitimate brothers and sisters, whether of full or half-blood.
24
Annex "R" to Petition, rollo, p. 102.
25
Annex "B" to Petition, id. at 25.
26
Id.
27
Rollo, p. 10.
28
G.R. No. 194880, June 20, 2012, 674 SCRA 320.
29
Id.at 332-333.
30
Supra note 23.
31
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country
where they were solemnized, and valid there assuch, shall also be valid in this country, except those prohibited
under Articles 35 (1), (4), (5) and (6), 3637 and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino
spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227)
32
Comment on the Petition for Review on Certiorari, rollo, p. 123.
33
Id. at 122.
34
Supra note 23.
35
Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living abroad.
36
Supra note 7, at 24.
37
Id.
38
G.R. No. L-25441, October 26, 1968, 25 SCRA 616.
39
Id. at 625-626. (Emphasis supplied)
40
EDI-Staff builders International, Inc. v. NLRC, 563 Phil. 1, 22 (2007).
41
Annex "N" to Petition, rollo, p. 84.
42
399 Phil. 342 (2000).
43
Id. at 354. (Emphasis supplied)
44
Bank of America, NT and SA v. American Realty Corporation, 378 Phil. 1279, 1296 (1999).
45
G.R. No. 80116, June 30, 1989, 174 SCRA 653.
46
Rollo, p. 18.
47
Supra note 44.
48
Id.at 1296-1297. (Emphasis supplied)
49
543 Phil. 275 (2007).
50
Id.at 290.
51
Section 5(e) and (i) of R.A. No. 9262. (Emphasis supplied)
52
Rollo, p. 15.
53
In People v. De Leon, 608 Phil. 701, 722 (2009), it was held that:
A continued (continuous or continuing) crime is defined as a single crime, consisting of a series of acts
but all arising from one criminal resolution. Although there is a series of acts, there is only one crime
committed; hence, only one penalty shall be imposed.
SUPREME COURT
Manila
EN BANC
G.R. No. L-6277 February 26, 1954
JUAN D. CRISOLOGO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES and HON. PABLO VILLALOBOS, respondents.
Antonio V. Raquiza, Floro Crisologo and Carlos Horrilleno for petitioner.

First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Felix V. Makasiar for respondents.
Pablo Villalobos in his own behalf.
REYES, J.:
The petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war and at the time of the filing of
the present petition a lieutenant colonel in the Armed Forces of the Philippines, was on March 12, 1946, accused of
treason under article 114 of the Revised Penal Code in an information filed in the People's Court. But before the
accused could be brought under the jurisdiction of the court, he was on January 13, 1947, indicted for violation of
Commonwealth Act No. 408, otherwise known as the Articles of War, before a military court created by the authority
of the Army Chief of Staff, the indictment containing three charges, two of which, the first and third, were those of
treason consisting in giving information and aid to the enemy leading to the capture of USAFFE officers and men
and other persons with anti-Japanese reputation and in urging members of the USAFFE to surrender and cooperate
with the enemy, while the second war was that of having certain civilians killed in time of war. Found innocent of the
first and third charges but guilty of the second, he was on May 8, 1947, sentenced by the military court to life
imprisonment.
With the approval on June 17, 1948, of Republic Act No. 311 abolishing the People's Court, the criminal case in that
court against the petitioner was, pursuant to the provisions of said Act, transferred to the Court of First Instance of
Zamboanga and there the charges of treason were amplified. Arraigned in that court upon the amended information,
petitioner presented a motion to quash, challenging the jurisdiction of the court and pleading double jeopardy
because of his previous sentence in the military court. But the court denied the motion and, after petitioner had
pleaded not guilty, proceeded to trial, whereupon, the present petition for certiorari and prohibition was filed in this
court to have the trial judge desist from proceeding with the trial and dismiss the case.
The petition is opposed by the Solicitor General who, in upholding the jurisdiction of the trial judge, denies that
petitioner is being subjected to double jeopardy.
As we see it, the case hinges on whether the decision of the military court constitutes a bar to further prosecution for
the same offense in the civil courts.
The question is not of first impression in this jurisdiction. In case of U.S. vs. Tubig, 3 Phil., 244, a soldier of the
United States Army in the Philippines was charged in the Court of First Instance of Pampanga with having
assassinated one Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already been
previously convicted and sentenced by s court-martial for the same offense and had already served his sentence.
The trial court overruled the plea on the grounds that a the province where the offense was committed was under
civil jurisdiction, the military court had no jurisdiction to try the offense. But on appeal, this court held that "one who
has been tried and convicted by a court martial under circumstances giving that tribunal jurisdiction of the defendant
and of the offense, has been once in jeopardy and cannot for the same offense be again prosecuted in another
court of the same sovereignty." In a later case, Grafton vs. U.S. 11 Phil., 776, a private in the United States Army in
the Philippines was tried by a general court martial for homicide under the Articles of War. Having been acquitted in
that court, he was prosecuted in the Court of First Instance of Iloilo for murder under the general laws of the
Philippines. Invoking his previous acquittal in the military court, he pleaded it in bar of proceedings against him in the
civil court, but the latter court overruled the plea and after trial found him guilty of homicide and sentenced him to
prison. The sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United States,
the sentence was reversed and defendant acquitted, that court holding that "defendant, having been acquitted of the
crime of homicide alleged to have been committed by him by a court martial of competent jurisdiction proceeding
under the authority of the United States, cannot be subsequently tried for the same offense in a civil court exercising
authority in the Philippines."
There is, for sure, a rule that where an act transgresses both civil and military laws subjects the offender to
punishment by both civil and military authority, a conviction or an acquittal in a civil court cannot be pleaded as a bar
to a prosecution in the military court, and vice versa. But the rule "is strictly limited to the case of a single act which
infringes both the civil and the military law in such a manner as to constitute two distinct offenses, one of which is
within the cognizance of the military courts and the other a subject of civil jurisdiction" (15 Am. Jur., 72), and it does
not apply where both courts derive their powers from the same sovereignty. (22 C.J.S., 449.) It therefore, has no
application to the present case the military court has convicted the petitioner and the civil court which proposes to try
him again derive their powers from one sovereignty and it is not disputed that the charges of treason tried in the
court martial were punishable under the Articles of War, it being as a matter of fact impliedly admitted by the
Solicitor General that the two courts have concurrent jurisdiction over the offense charged.
It is, however, claimed that the offense charged in the military court is different from that charged in the civil court
and that even granting that the offense was identical the military court had no jurisdiction to take cognizance of the
same because the People's Court had previously acquired jurisdiction over the case with the result that the
conviction in the court martial was void. In support of the first point, it is urged that the amended information filed in
the Court of First Instance of Zamboanga contains overt acts distinct from those charged in the military court. But we
note that while certain overt acts specified in the amended information in the Zamboanga court were not specified in
the indictment in the court martial, they all are embraced in the general charge of treason, which is a continuous
offense and one who commits it is not criminally liable for as many crimes as there are overt acts, because all overt
acts "he has done or might have done for that purpose constitute but a single offense." (Guinto vs. Veluz,1 44 Off.
Gaz., 909; People vs. Pacheco,2 L-4570, promulgated July 31, 1953.) In other words, since the offense charged in
the amended information in the Court of First Instance of Zamboanga is treason, the fact that the said information
contains an enumeration of additional overt acts not specifically mentioned in the indictment before the military court
is immaterial since the new alleged overt acts do not in themselves constitute a new and distinct offense from that of
treason, and this Court has repeatedly held that a person cannot be found guilty of treason and at the same time
also guilty of overt acts specified in the information for treason even if those overt acts, considered separately, are
punishable by law, for the simple reason that those overt acts are not separate offense distinct from that of treason
but constitutes ingredients thereof. Respondents cite the cases of Melo vs. People,3 47 off. Gaz., 4631, and People
vs. Manolong,4 47 Off. Gaz., 5104, where this court held:
Where after the first prosecution a new fact supervenes for which the defendant is responsible, which
changes the character of the offense and, together with the facts existing at the time, constitutes a new and
distinct offense, the accused cannot be said to be second jeopardy if indicted for a new offense.
But respondents overlook that in the present case no new facts have supervened that would change the nature of
the offense for which petitioner was tried in the military court, the alleged additional overt acts specified in the
amended information in the civil court having already taken place when petitioner was indicted in the former court.
Of more pertinent application is the following from 15 American Jurisprudence, 56-57:
Subject to statutory prohibitions and the interpretation thereof for the purpose of arriving at the intent of the
legislature enacting them, it may be said that as a rule only one prosecution may be had for a continuing
crime, and that when a n offense charged consists of a series of acts extending over a period of time, a
conviction or acquittal for a crime based on a portion of that period will bar a prosecution covering the whole
period. In such case the offense is single and indivisible; and whether the time alleged is longer or shorter,
the commission of the acts which constitute it within any portion of the time alleged, is a bar to the conviction
for other acts committed within the same time. . . .
As to the claim that the military court had no jurisdiction over the case, well known is the rule that when several
courts have concurrent jurisdiction of the same offense, the court first acquiring jurisdiction of the prosecution retains
it to the exclusion of the others. This rule, however, requires that jurisdiction over the person of the defendant shall
have first been obtained by the court in which the first charge was filed. (22 C.J.S., pp. 186-187.) The record in the
present case shows that the information for treason in the People's Court was filed on March 12, 1946, but petitioner
had not yet been arrested or brought into the custody of the court — the warrant of arrest had not even been issued
— when the indictment for the same offense was filed in the military court on January 13, 1947. Under the rule cited,
mere priority in the filing of the complaint in one court does not give that court priority to take cognizance of the
offense, it being necessary in addition that the court where the information is filed has custody or jurisdiction of the
person of defendant.
It appearing that the offense charged in the military court and in the civil court is the same, that the military court had
jurisdiction to try the case and that both courts derive their powers from one sovereignty, the sentence meted out by
the military court to the petitioner should, in accordance with the precedents above cited, be a bar to petitioner's
further prosecution for the same offense in the Court of First Instance of Zambales.
Wherefore, the petition for certiorari and prohibition is granted and the criminal case for treason against the
petitioner pending in that court ordered dismissed. Without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Labrador and Concepcion, JJ., concur.
Footnotes
1
77 Phil., 801.
2
93 Phil., 521.
3
85 Phil., 766.
4
85 Phil., 829.
EN BANC
G.R. No. 164007 August 10, 2006
LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV, CPT. GARY
ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR FAELDON, LT. (SG)
MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONNEL
SANGGALANG, Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines, and B.
GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate
General’s Office (JAGO), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by the above-
named members of the Armed Forces of the Philippines (AFP), herein petitioners, against the AFP Chief of Staff
and the Judge Advocate General, respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some members of the AFP,
with high-powered weapons, had abandoned their designated places of assignment. Their aim was to destabilize
the government. The President then directed the AFP and the Philippine National Police (PNP) to track and arrest
them.
On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men of the AFP –
mostly from the elite units of the Army’s Scout Rangers and the Navy’s Special Warfare Group – entered the
premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati City. They disarmed the security
guards and planted explosive devices around the building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the emblem of
the "Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media, announced their grievances
against the administration of President Gloria Macapagal Arroyo, such as the graft and corruption in the military, the
illegal sale of arms and ammunition to the "enemies" of the State, and the bombings in Davao City intended to
acquire more military assistance from the US government. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resign as President of the Republic. They also called for the
resignation of her cabinet members and the top brass of the AFP and PNP.
About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of rebellion,
followed by General Order No. 4 directing the AFP and PNP to take all necessary measures to suppress the
rebellion then taking place in Makati City. She then called the soldiers to surrender their weapons at five o’clock in
the afternoon of that same day.
In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the soldiers. The aim was
to persuade them to peacefully return to the fold of the law. After several hours of negotiation, the government panel
succeeded in convincing them to lay down their arms and defuse the explosives placed around the premises of the
Oakwood Apartments. Eventually, they returned to their barracks.
A total of 321 soldiers, including petitioners herein, surrendered to the authorities.
The National Bureau of Investigation (NBI) investigated the incident and recommended that the military personnel
involved be charged with coup d’etat defined and penalized under Article 134-A of the Revised Penal Code, as
amended. On July 31, 2003, the Chief State Prosecutor of the Department of Justice (DOJ) recommended the filing
of the corresponding Information against them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General Narciso Abaya,
then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in the Oakwood incident and
directed the AFP to conduct its own separate investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information for coup
d’etat 2 against those soldiers, docketed as Criminal Case No. 03-2784 and eventually raffled off to Branch 61,
presided by Judge Romeo F. Barza. 3 Subsequently, this case was consolidated with Criminal Case No. 03-2678,
involving the other accused, pending before Branch 148 of the RTC, Makati City, presided by Judge Oscar B.
Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No. 03-2784.
On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial Investigation Panel
tasked to determine the propriety of filing with the military tribunal charges for violations of the Articles of War under
Commonwealth Act No. 408, 4 as amended, against the same military personnel. Specifically, the charges are: (a)
violation of Article 63 for disrespect toward the President, the Secretary of National Defense, etc., (b) violation of
Article 64 for disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of
Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial
to good order and military discipline.
Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein) filed with the RTC,
Branch 148 an Omnibus Motion praying that the said trial court assume jurisdiction over all the charges filed with the
military tribunal. They invoked Republic Act (R.A.) No. 7055. 5
On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a motion praying for the
suspension of its proceedings until after the RTC shall have resolved their motion to assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief of Staff
recommending that the military personnel involved in the Oakwood incident be charged before a general court
martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable cause against only
31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784. Accordingly, the prosecution filed with
the RTC an Amended Information. 6
In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the charge of coup
d’etat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-Trial Investigation
Report 7 to the JAGO, recommending that, following the "doctrine of absorption," those charged with coup
d’etat before the RTCshould not be charged before the military tribunal for violation of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the court martial
against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the
alleged crime of coup d’etat." The trial court then proceeded to hear petitioners’ applications for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed the findings of
the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in the Oakwood incident,
including petitioners, be prosecuted before a general court martial for violation of Article 96 (conduct unbecoming an
officer and a gentleman) of the Articles of War.
On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass. The AFP Judge
Advocate General then directed petitioners to submit their answer to the charge. Instead of complying, they filed
with this Court the instant Petition for Prohibition praying that respondents be ordered to desist from charging them
with violation of Article 96 of the Articles of War in relation to the Oakwood incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004 that the offense
for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War is not service-
connected, but is absorbed in the crime of coup d’etat, the military tribunal cannot compel them to submit to its
jurisdiction.
The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which offenses covered
by the Articles of War areservice-connected. These are violations of Articles 54 to 70, 72 to 92, and 95 to 97. The
law provides that violations of these Articles are properly cognizable by the court martial. As the charge against
petitioners is violation of Article 96 which, under R.A. No. 7055 is a service-connected offense, then it falls under the
jurisdiction of the court martial.
Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue that the offense
charged before the General Court Martial has prescribed. Petitioners alleged therein that during the pendency of
their original petition, respondents proceeded with the Pre-Trial Investigation for purposes of charging them with
violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War; that the Pre-Trial
Investigation Panel then referred the case to the General Court Martial; that "almost two years since the Oakwood
incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under
questionable circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of the
case on the ground that they were not arraigned within the prescribed period of two (2) years from the date of the
commission of the alleged offense, in violation of Article 38 of the Articles of War; 11 that "the offense charged
prescribed on July 25, 2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end
only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching and it was
becoming apparent that the accused could not be arraigned, the prosecution suddenly changed its position and
asserted that 23 of the accused have already been arraigned;" 14 and that petitioners moved for a reconsideration
but it was denied by the general court martial in its Order dated September 14, 2005. 15
In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of merit. He alleges
that "contrary to petitioners’ pretensions, all the accused were duly arraigned on July 13 and 18, 2005." 16 The
"(r)ecords show that in the hearing on July 13, 2005, all the 29 accused were present" and, "(o)n that day, Military
Prosecutor Captain Karen Ong Jags read the Charges and Specifications from the Charge Sheet in open court (pp.
64, TSN, July 13, 2005)." 17
The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.
There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to Article 1 (a) of
Commonwealth Act No. 408, as amended, otherwise known as the Articles of War, the term "officer" is "construed to
refer to a commissioned officer." Article 2 provides:
Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles and shall be understood
as included in the term "any person subject to military law" or "persons subject to military law," whenever used in
these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine
Constabulary, all members of the reserve force, from the dates of their call to active duty and while on such active
duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or ordered into, or to
duty or for training in the said service, from the dates they are required by the terms of the call, draft, or order to
obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the
Revised Penal Code, other special penal laws, or local government ordinances, regardless of whether or not
civilians are co-accused, victims, or offended parties, which may be natural or juridical persons, shall be tried by the
proper civil court, except when the offense, as determined before arraignment by the civil court, is service-
connected, in which case, the offense shall be tried by court-martial, Provided, That the President of the Philippines
may, in the interest of justice, order or direct at any time before arraignment that any such crimes or offenses be
tried by the proper civil courts.
As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70,
Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended.
In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the penalty
prescribed therefor in the Revised Penal Code, other special laws, or local government ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general rule that
members of the AFP and other persons subject to military law, including members of the Citizens Armed Forces
Geographical Units, who commit crimes or offenses penalized under the Revised Penal Code (like coup d’etat),
other special penal laws, or local ordinances shall be tried by the proper civil court. Next, it provides the exception to
the general rule, i.e., where the civil court, before arraignment, has determined the offense to be service-connected,
then the offending soldier shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e.,
where the President of the Philippines, in the interest of justice, directs before arraignment that any such crimes or
offenses be tried by the proper civil court.
The second paragraph of the same provision further identifies the "service-connected crimes or offenses" as
"limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97" of the Articles of War.
Violations of these specified Articles are triable by court martial. This delineates the jurisdiction between the civil
courts and the court martial over crimes or offenses committed by military personnel.
Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of military justice
system over military personnel charged with service-connected offenses. The military justice system is disciplinary
in nature, aimed at achieving the highest form of discipline in order to ensure the highest degree of military
efficiency. 18 Military law is established not merely to enforce discipline in times of war, but also to preserve the
tranquility and security of the State in time of peace; for there is nothing more dangerous to the public peace and
safety than a licentious and undisciplined military body. 19 The administration of military justice has been universally
practiced. Since time immemorial, all the armies in almost all countries of the world look upon the power of military
law and its administration as the most effective means of enforcing discipline. For this reason, the court martial has
become invariably an indispensable part of any organized armed forces, it being the most potent agency in
enforcing discipline both in peace and in war. 20
Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the
Articles of War before the court martial, thus:
All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Metro Manila,
willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law and
the duly-constituted authorities and abused their constitutional duty to protect the people and the State by,
among others, attempting to oust the incumbent duly-elected and legitimate President by force and violence,
seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby
causing dishonor and disrespect to the military profession, conduct unbecoming an officer and a
gentleman, in violation of AW 96 of the Articles of War.
CONTRARY TO LAW. (Underscoring ours)
Article 96 of the Articles of War 21 provides:
ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse Corps, cadet, flying
cadet, or probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall
be dismissed from the service. (Underscoring ours)
We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is expressly
provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the charge against the petitioners
concerns the alleged violation of their solemn oath as officers to defend the Constitution and the duly-constituted
authorities.Such violation allegedly caused dishonor and disrespect to the military profession. In short, the
charge has a bearing on their professional conduct or behavior as military officers. Equally indicative of the
"service-connected" nature of the offense is the penalty prescribed for the same – dismissal from the service –
imposable only by the military court.Such penalty is purely disciplinary in character, evidently intended to cleanse
the military profession of misfits and to preserve the stringent standard of military discipline.
Obviously, there is no merit in petitioners’ argument that they can no longer be charged before the court martial for
violation of Article 96 of the Articles of War because the same has been declared by the RTC in its Order of
February 11, 2004 as "not service-connected, but rather absorbed and in furtherance of the alleged crime of coup
d’etat," hence, triable by said court (RTC). The RTC, in making such declaration, practically amended the law which
expressly vests in the court martial the jurisdiction over "service-connected crimes or offenses." What the law has
conferred the court should not take away. It is only the Constitution or the law that bestows jurisdiction on the court,
tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is only through a
constitutional amendment or legislative enactment that such act can be done. The first and fundamental duty of the
courts is merely to apply the law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC
constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is, therefore, void.
In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:
We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the dispositive
portion of its Order dated February 11, 2004 that all charges before the court-martial against the accused were not
service-connected, but absorbed and in furtherance of the crime of coup d’etat, cannot be given effect. x x x, such
declaration was made without or in excess of jurisdiction; hence, a nullity.
The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly specifies what are
considered "service-connected crimes or offenses" under Commonwealth Act No. 408, as amended, also known as
the Articles of War, to wit:
Articles 54 to 70:
Art. 54. Fraudulent Enlistment.
Art. 55. Officer Making Unlawful Enlistment.
Art. 56. False Muster.
Art. 57. False Returns.
Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.
Art. 60. Advising or Aiding Another to Desert.
Art. 61. Entertaining a Deserter.
Art. 62. Absence Without Leave.
Art. 63. Disrespect Toward the President, Vice-President,
Congress of the Philippines, or Secretary of National
Defense.
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Art. 70. Arrest or Confinement.
Articles 72 to 92:
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public Service.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 83. Spies.
Art. 84. Military Property.–Willful or Negligent Loss, Damage
or wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of Military Property
Issued to Soldiers.
Art. 86. Drunk on Duty.
Art. 87. Misbehavior of Sentinel.

Art. 88. Personal Interest in Sale of Provisions.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 89. Intimidation of Persons Bringing Provisions.
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Art. 91. Provoking Speeches or Gestures.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and Gentleman.
Art. 97. General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the foregoing offenses. x x
x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to try cases
involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the Articles of War as these are
considered "service-connected crimes or offenses." In fact, it mandates that these shall be tried by the court-martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case is worth
quoting, thus:
The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct Unbecoming an
Officer and a Gentleman is ‘absorbed and in furtherance to the alleged crime of coup d’etat.’ Firstly, the doctrine of
‘absorption of crimes’ is peculiar to criminal law and generally applies to crimes punished by the same
statute, 25 unlike here where different statutes are involved. Secondly, the doctrine applies only if the trial court has
jurisdiction over both offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-
connected offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is not
applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military personnel because
the military constitutes an armed organization requiring a system of discipline separate from that of civilians (see
Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry high-powered arms and other lethal weapons not
allowed to civilians. History, experience, and the nature of a military organization dictate that military personnel must
be subjected to a separate disciplinary system not applicable to unarmed civilians or unarmed government
personnel.
A civilian government employee reassigned to another place by his superior may question his reassignment by
asking a temporary restraining order or injunction from a civil court. However, a soldier cannot go to a civil court and
ask for a restraining or injunction if his military commander reassigns him to another area of military operations. If
this is allowed, military discipline will collapse.
xxx
This Court has recognized that courts-martial are instrumentalities of the Executive to enable the President, as
Commander-in-Chief, to effectively command, control, and discipline the armed forces (see Ruffy v. Chief of Staff,
75 Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd edition, p. 49). In short, courts-martial form
part of the disciplinary system that ensures the President’s control, and thus civilian supremacy, over the military. At
the apex of this disciplinary system is the President who exercises review powers over decisions of courts-martial
(citing Article 50 of the Articles of War; quoted provisions omitted).
xxx
While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly and only to release
a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401 [1948] or to correct objectionable
procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court has never suppressed court-martial proceedings on
the ground that the offense charged ‘is absorbed and in furtherance of’ another criminal charge pending with the civil
courts. The Court may now do so only if the offense charged is not one of the service-connected offenses specified
in Section 1 of RA 7055. Such is not the situation in the present case.
With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it to say that we
cannot entertain the same. The contending parties are at loggerheads as to (a) who among the petitioners were
actually arraigned, and (b) the dates of their arraignment. These are matters involving questions of fact, not within
our power of review, as we are not a trier of facts. In a petition for prohibition, such as the one at bar, only legal
issues affecting the jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the
undisputed facts. 26
Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful and
oppressive exercise of authority and is directed against proceedings that are done without or in excess of
jurisdiction, or with grave abuse of discretion, there being no appeal or other plain, speedy, and adequate remedy in
the ordinary course of law. 27 Stated differently, prohibition is the remedy to prevent inferior courts, corporations,
boards, or persons from usurping or exercising a jurisdiction or power with which they have not been vested by
law. 28
In fine, this Court holds that herein respondents have the authority in convening a court martial and in charging
petitioners with violation of Article 96 of the Articles of War.
WHEREFORE, the instant petition for prohibition is DISMISSED.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO

MA. ALICIA AUSTRIA-MARTINEZ ENATO C. CORONA

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

ADOLFO S. AZCUNA DANTE O. TINGA

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA


Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes
1
A group which spearheaded the Revolution of 1896 against Spain.
2
As defined and penalized under Article 134-A of the Revised Penal Code, as amended.
3
Now Associate Justice of the Court of Appeals.
4
Entitled "An Act for Making Further and More Effectual Provision for the National Defense by Establishing a
System of Military Justice for Persons Subject to Military Law."
5
Entitled "An Act Strengthening Civilian Supremacy Over The Military By Returning To The Civil Courts The
Jurisdiction Over Certain Offenses Involving Members Of The Armed Forces Of The Philippines, Other
Persons Subject To Military Law, And The Members Of The Philippine National Police, Repealing For The
Purpose Certain Presidential Decrees."
6
Rollo, pp. 176-179.
7
Id., pp. 370-380.
8
Id., pp. 207-209.
9
Id., pp. 14-15.
10
Par. 4, Supplemental Petition, p. 4.
11
Article 38 of the Articles of War partly provides:
"Article 38. As to Time. – Except for desertion or murder committed in time of war, or for mutiny, no person
subject to military law shall be liable to be tried or punished by a court-martial for any crime or offense
committed more than two years before the arraignment of such person: x x x."
12
Pars. 8, 18, Supplemental Petition, pp. 5, 10.
13
Par. 9, id.
14
Par. 10, id. Petitioners stated, under this footnote, that the "(r)ulings before the General Court Martial were
done orally; unavailability of the TSN for the July 26, 2005 hearing."
15
Par. 14, id.
16
Comment, p. 10.
17
Id., p. 18.
18
Gloria, PHILIPPINE MILITARY LAW Annotated, revised edition, p. 3.
19
Id.
20
Id., pp. 4-5.
21
Commonwealth Act No. 408, as amended by Republic Act No. 242 (approved on June 12, 1948).
22
Arnado v.Buban, A.M. No. MTJ-04-1543, May 31, 2004, 430 SCRA 382, 386; Republic v. Estipular, G.R.
No. 136588, July 20, 2000, 336 SCRA 333, 340.
23
Resins, Inc. v. Auditor General, G.R. No. 17888, October 29, 1968, 25 SCRA 754.
24
G.R. Nos. 162318 and 162341, October 25, 2004, 441 SCRA 393, 409-421.
25
E.g., Murder (Article 248) and Robbery (Articles 294-295) absorbed by Rebellion (Article 134) of the
Revised Penal Code (People v. Hernandez, 99 Phil. 515 [1956]; Illegal Possession of Marijuana (Section 8,
Republic Act No. 6425) absorbed by Illegal Sale of Marijuana (Section 4, Republic Act No. 6425) (People v.
De Jesus, 229 Phil. 518 [1986]).
26
Mafinco Trading Corp. v. Ople, No. L-37790, March 25, 1976, 70 SCRA 139, 160-161.
27
Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as amended; Vergara v. Rugue, No. L-32984,
August 26, 1977, 78 SCRA 312.
28
Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, October 24, 1996, 263
SCRA 490.
The Lawphil Project - Arellano Law Foundation
Agenda of August 8, 2006
Item No. 67
G.R. No. 164007 – (LT. [SG] EUGENE GONZALES, LT. [SG] ANDY TORRATO, LT. [SG] ANTONIO TRILLANES
IV, CPT. GARY ALEJANO, LT. [SG] JAMES LAYUG, CPT. NICANOR FAELDON, LT. [SG] MANUEL CABOCHAN,
ENS. ARMAND PONTEJOS, LT. [JG] ARTURO PASCUA, ET AL. v. GEN. NARCISO ABAYA, in his capacity as the
Chief-of-Staff of the ARMED FORCES OF THE PHILIPPINES, and BRIG. GEN. MARIANO M. SARMIENTO, JR., in
his capacity as the Judge Advocate General of the Judge Advocate General Office [JAGO])
Promulgated:
August 10, 2006
CONCURRING OPINION
CALLEJO, SR., J.:
I concur with the encompassing ponencia of Madame Justice Angelina Sandoval-Gutierrez ordering the dismissal of
the petition. However, I find it necessary to elucidate on my opinion relative to the submission of petitioners that the
punitive act for conduct unbecoming an officer and a gentleman defined in Article 96 of the Articles of War is
absorbed by coup d’etat, a political felony, especially in light of the opinion of the Pre-Trial Investigation Panel that
the punitive act as well as these service-connected punitive acts defined in Articles 63, 64, 96 and 97 of the Articles
of War, are indeed absorbed by coup d’etat.
The charge against petitioners reads:
Violation of Article 96
All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City, Makati, Metro
Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend the Constitution, the law
and the duly-constituted authorities and abuse their constitutional duty to protect the people and the State by,
among others, attempting to oust the incumbent duly-elected and legitimate president by force and violence,
seriously disturbing the peace and tranquility of the people and the nation they are sworn to protect, thereby causing
dishonor and disrespect to the military profession, conduct unbecoming an officer and a gentleman, in violation of
AW 96 of the Articles of War.
CONTRARY TO LAW.
Article 96 of the Articles of War defines the punitive act of conduct unbecoming an officer and a gentleman as
follows:
Art. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, cadet, flying cadet, or probationary second
lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the service.
Case law has it that common crimes committed in furtherance of a political crime, such as rebellion, are therein
absorbed. A political crime is one directly aimed against the political order as well as such common crimes as may
be committed to achieve a political purpose. The decisive factor is the intent or motive. Coup d’etat is a political
crime because the purpose of the plotters is to seize or diminish State power. If a crime usually regarded as
common, like murder, is perpetrated to achieve a political purpose, then said common crime is stripped of its
common complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political
character of the latter. 1 Such common offenses assume the political complexion of the main crime of which they are
mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with
the same to justify the imposition of the graver penalty. 2
In Ponce Enrile v. Amin, 3 the court ruled that the principle of absorption of common crimes by the political crime
applies to crimes defined and penalized by special laws, such as Presidential Decree No. 1829, otherwise known as
Obstruction of Justice. However, in Baylosis v. Chavez,
Jr., 4 the Court ruled that the rulings of this Court in People v. Hernandez, 5 Ponce Enrile v. Amin 6 and Enrile v.
Salazar, 7 do not apply to crimes which, by statutory fiat, are sui generis.
Indeed, the service-connected punitive acts defined and penalized under the Articles of War are sui generis
offenses not absorbed by rebellion perpetrated, inter alia, by the officers and enlisted personnel of the Armed
Forces of the Philippines (AFP) or coup d’etat. This is so because such acts or omissions are merely violations of
military discipline, designed to secure a higher efficiency in the military service; in other words, they are purely
disciplinary in their nature, and have exclusive regard to the special character and relation of the AFP officers and
enlisted personnel. Laws providing for the discipline as well as the organization of the AFP are essential to the
efficiency for the military service in case their services should ever be required. "Deprive the executive branch of the
government of the power to enforce proper military regulations by fine and imprisonment, and that, too, by its own
courts-martial, which from time immemorial have exercised this right, and we at once paralyze all efforts to secure
proper discipline in the military service, and have little left but a voluntary organization, without cohesive force." 8
It bears stressing that for determining how best the AFP shall attend to the business of fighting or preparing to fight
rests with Congress and with the President. Both Congress and this Court have found that the special character of
the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that
affect internal discipline and morale. In construing a statute that touches on such matters, therefore, courts must be
careful not to circumscribe the authority of military commanders to an extent never intended by Congress. Under
these and many similar cases reviewing legislative and executive control of the military, the sentencing scheme at
issue in this case, and the manner in which it was created, are constitutionally unassailable. 9
Officers and enlisted personnel committing punitive acts under the Articles of War may be prosecuted and convicted
if found guilty of such acts independently of, and separately from, any charges filed in the civilian courts for the
same or similar acts which are penalized under the Revised Penal Code, under special penal laws or ordinances;
and prescinding from the outcome thereof.
At this point, it is well to have a basic understanding of the Articles of War under Commonwealth Act No. 408, which
was essentially copied from that of the United States, which, in turn, had been superseded by the Uniform Code of
Military Justice. Our Articles of War has since been amended by Republic Act Nos. 242 and 516.
The Articles of War is the organic law of the AFP and, in keeping with the history of military law, its primary function
is to enforce "the highest form of discipline in order to ensure the highest degree of military efficiency." The following
commentary is enlightening:
History points out the fact that nations have always engaged in wars. For that purpose, bodies of men have been
organized into armed forces under a commander-in-chief who, through his subordinate commanders, enforces the
highest form of discipline in order to ensure the highest degree of military efficiency.
Victory in battle is the ultimate aim of every military commander, and he knows that victory cannot be attained, no
matter how superior his forces may be, in men and materials, if discipline among the rank-and-file is found wanting.
For, "if an Army is to be anything but an uncontrolled mob, discipline is required and must be enforced." For this
reason, in order to set an effective means of enforcing discipline, all organized armies of the world have
promulgated sets of rules and regulations and later, laws as embodied in the articles of war, which define the duties
of military personnel and distinguish infractions of military law and impose appropriate punishment for violation
thereof. 10
Every officer, before he enters in the duties of his office, subscribes to these articles and places himself within the
powers of courts-martial to pass on any offense which he may have committed in contravention thereof. 11
It is said that conduct unbecoming an officer and a gentleman is a uniquely military offense. 12 In order to constitute
the said offense, the misconduct must offend so seriously against the law, justice, morality or decorum as to expose
to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under
such circumstances as to bring dishonor or disrepute upon the military profession which he represents. 13 The article
proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other
definitions of offenses, and the same course of conduct may constitute an offense elsewhere provided for and may
also warrant a conviction under this provision; it is not subject to preemption by other punitive articles. 14
The administration of military justice under the Articles of War has been exclusively vested in courts-martial whether
as General Courts-Martial, Special Courts-Martial or Summary Courts-Martial. 15 Courts-martial pertain to the
executive department and are, in fact, simply instrumentalities of the executive power, provided by Congress for the
President as Commander-in-Chief to aid him in properly commanding the army and navy, and enforcing discipline
therein. 16
As enunciated by the United States Supreme Court, "the military is, by necessity, a specialized society separate
from civilian society. It has, again by necessity, developed laws and traditions of its own during its long history. The
differences between the military and civilian communities result from the fact that it is the primary business of armies
and navies to fight or ready to fight wars should the occasion arise." 17 Further, the US Supreme Court quite
succinctly stated that "the military constitutes a specialized community governed by a separate discipline from that
of the civilian." 18
I wish to emphasize, however, a caveat: not all service-connected punitive acts under the Articles of War may be
prosecuted before the courts-martial independently of a crime defined and penalized under the Revised Penal Code
against the same accused based on the same set of delictual acts. Congress may criminalize a service-connected
punitive offense under the Articles of War.
A review of the deliberations in the Senate or the Report of the Conference Committee of Senate Bill 1500 will
readily show that coup d’etat was incorporated in the Revised Penal Code in Article 134-A precisely to criminalize
"mutiny" under Article 67 of the Articles of War and to penalize the punitive act of mutiny, under the Articles of War
as coup d’etat. Article 67 of the Articles of War reads:
Art. 67. Mutiny or Sedition. – Any person subject to military law who attempts to create or who begins, excites,
causes, or joins in any mutiny or sedition in any company, party, post, camp, detachment, guard, or other command
shall suffer death or such other punishment as a court-martial may direct.
Without Article 134-A in the Revised Penal Code, the mutineers would be charged for mutiny under Article 67 of the
Articles of War:
Senator Lina. Yes, Mr. President.
Senator Enrile. Then we added Article 134-A which deals with the new crime of coup d’etat.
Senator Enrile. – and we defined how this newly characterized and defined crime would be committed in Article 134-
A?
Senator Enrile. And, in fact, we made a distinction between the penalty of the crimes defined under Article 134 of
the Revised Penal Code and the crime defined under Article 134-A, is this correct, Mr. President?
Senator Enrile. In fact, we distinguished between the conspiracy and proposal to commit the crime of rebellion from
the conspiracy and proposal to commit coup d’ etat?
Senator Enrile. So that, for all intents and purposes, therefore, we are defining a new crime under this proposed
measure—
Senator Enrile.—which is coup d’etat. We are, in effect, bringing into the Revised Penal Code, a crime that was
penalized under the Articles of War as far as military participants are concerned and call it with its name "coup
d’etat"?
Senator Lina. Yes, Mr. President. That is the . . .
Senator Enrile. Because without this criminalization of coup d’etat under the Revised Penal Code, people in the
active service would be charged with mutiny?
Senator Lina. Yes, Mr. President. Especially when they are inside the camp, when the rank-and-file go up to arms or
insubordination or against the orders of their superiors, they would be charged under the Articles of War.
Senator Enrile. In fact, one of the distinguishing features of a coup d’etat as defined here is, apart from the overt
acts of taking a swift attack with violence, intimidation, threat, strategy, or stealth against the duly-constituted
authorities or an installation, et cetera, the primary ingredient of this would be the seizure or diminution of state
power.
Senator Lina. Yes, that is the objective, Mr. President.
Senator Enrile. On the other hand, in the case of rebellion as defined under Article 134, it does not necessarily
mean a seizure of State power or diminution of State power, but all that is needed would be to deprive the Chief
Executive or the legislature of any of its powers.
Senator Lina. That is correct, Mr. President.

Senator Enrile. So that, there is a basis to consider a clear and definable distinction between the crime of coup
d’etat and the crime of rebellion as defined under Article 135?
Senator Enrile. I just want to put that into the Record.
Thus, officers and enlisted personnel of the AFP charged of coup d’etat can no longer be charged with mutiny under
Article 67 of the Articles of War before courts-martial for the same delictual or punitive act.
I vote to DISMISS the petition.
ROMEO J. CALLEJO, SR.
Associate Justice
Footnotes
1
People v. Hernandez, 99 Phil. 515, 536 (1956).
2
Id. at 541.
3
G.R. No. 93335, September 13, 1990, 189 SCRA 573, 580-581.
4
G.R. No. 95136, October 3, 1991, 202 SCRA 405, 416.
5
Supra note 1.
6
Supra note 3.
7
G.R. No. 92163, June 5, 1990, 186 SCRA 217.
8
Michigan v. Wagner, 77 N.W. 422.
9
Loving v. U.S., 517 U.S. 748, 778, 116 S.Ct. 1737 (1966).
10
Gloria, Philippine Military Law Annotated, p. 3.
11
Carter v. Roberto, 177 U.S. 497 (1900).
12
U.S. v. Weldon, 7 M.J. 938 (1979).
13
Parker v. Levy, 417 U.S. 733 (1974).
14
U.S. v. Taylor, 23 M.J. 341 (1987).
15
Article 3, Articles of War.
16
Supra note 14, p.17, citing Winthrop, Military Law and Precedents (2nd ed.), 49.
17
U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955).
18
Orloff v. Willoughby, 345 U.S. 83 (1953)
The Lawphil Project - Arellano Law Foundation
G.R. No. 164007 – LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES
IV, CAPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. NICANOR FAELDON, LT. (SG) MANUEL
COBOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT. JONHNEL SANGGALANG,
Petitioners, versus GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the Philippines,
and B/GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge Advocate General of the Judge Advocate
General Office (JAGO), Respondents.
Promulgated:
August 10, 2006
SEPARATE OPINION
(Concurring and Dissenting)
Tinga, J.:
My concurrence to the dismissal of the petition is limited to a much narrower ground than that offered by the majority
opinion, which, with due respect, I am unable to fully join and thus impelled to mostly dissent from. The broad
propositions adopted by the majority render inutile Republic Act No. 7055, (RA 7055) that generally restored civil
jurisdiction over offenses involving members of the Armed Forces of the Philippines (AFP). This law stands as a key
implement in the restoration of civilian supremacy over the military, a precept that was reinvigorated with the
restoration of civil democracy in 1986. The rationale that sustains the majority position stands athwart to that
important constitutional principle as effectuated through RA 7055.
Instead, my position hinges on the peculiar nature of Article 96 of the Articles of War, the violation of which
petitioners stand accused of before the court-martial. Not only does Article 96 embody a rule uniquely military in
nature, it also prescribes a penalty wholly administrative in character which the civilian courts are incapable of
rendering. For that reason alone, I agree that petitioners may stand civilian trial for coup d’etat and court-martial for
violation of Article 96.
Still, I acknowledge that I would have voted to grant the petition had petitioners faced other charges, instead of the
sole Article 96 charge, before the court-martial in connection with the Oakwood mutiny. I submit that RA 7055
precisely authorizes the civil court to independently determine whether the offense subject of the information before
it is actually service-connected. If the trial court does determine, before arraignment, that the offense is service-
connected, it follows that, as a rule, the military court will not have jurisdiction over the acts constituting the offense.
Restatement of Relevant Facts
The following facts I consider relevant.
On 5 August 2003, just a little over a week after the so-called Oakwood mutiny, the Department of Justice filed an
Information with the Regional Trial Court (RTC) of Makati against 321 military personnel, including petitioners, for
violation of Article 134-A of the Revised Penal Code which is the crime of coup d’etat. After the case was docketed
as Criminal Case No. 03-2784, the RTC directed the DOJ to conduct a reinvestigation of the said case. On the
same day that the order for re-investigation was issued, the AFP Chief of Staff created a Pre-Trial Investigation
Panel against the same persons to determine the propriety of filing charges with a military tribunal against
petitioners, along with 300 or so other soldiers, for violation of the Articles of War, again in connection with the
Oakwood mutiny. Thus, 243 of the accused before the RTC, including petitioners, filed a motion with the trial court
praying that the court assume jurisdiction over all the charges filed with the military tribunal, following RA 7055. 1
After re-investigation, the DOJ found probable cause for the crime of coup d’etat against only 31 of the original 321
accused. The DOJ then filed a motion for dismissal of the charge of coup d’etat against the 290 others, which
motion was granted by the RTC in an Order dated 14 November 2003. Petitioners were among the 31 who still
faced the charge of coup d’etat before the RTC.
Notwithstanding the dismissal of the charge of coup d’etat against the 290 soldiers, they were still charged before
the General Court Martial for violation of Articles 63, 64, 67, 96 and 97 of the Articles of War. 2 Among the charges
faced by these soldiers was for "mutiny," punishable under Article 63. Only those soldiers the charge of coup
d’etat against whom was dismissed were subjected to the charge of Articles of War violations before the
court-martial. Some of these 290 soldiers challenged the jurisdiction of the court-martial in a petition for prohibition
before this Court, which was denied in Navales v. Abaya 3 in 2004.
On the other hand, on 9 December 2003, the Pre-Trial Investigation Panel recommended that the 31 officers facing
the charge of coup d’etat before the trial court be excluded from the court-martial proceedings. The rationale that the
Panel offered was the assumption of civilian jurisdiction by the RTC based on RA 7055 and its belief that the
charges against the 31 it was investigating were absorbed by the crime of coup d’etat, which was already within the
jurisdiction of the RTC to try and decide.
It was on 11 February 2004 that the RTC issued an Order (RTC Order) stating that "all charges before the court-
martial against the accused.. are hereby declared not service-connected, but rather absorbed and in furtherance of
the alleged crime of coup d’etat." Note that as of then, only 31 officers remained within the jurisdiction of the RTC. If
there are any relevant subjects of the RTC Order, it is these 31, including petitioners, and not the 290 others the
case for coup d’etat against whom had already been dismissed.
Thus, as things stood as of 11 February 2004, only 31 officers, including petitioners, were still within the jurisdiction
of the RTC, as they remained charged with coup d’etat. None of the 31 were facing any charge before the court-
martial, the investigation against them by the AFP Pre-Trial Investigation Panel had already been concluded by
then. On the other hand, the 290 other soldiers, including the Navales petitioners, were no longer facing any criminal
cases before the RTC, but were instead facing court-martial charges. This symmetry is deliberate, cognizant as the
DOJ and the AFP were of the general principle, embodied in RA 7055, that jurisdiction over acts by soldiers which
constitute both a crime under the penal laws and a triable offense under the Articles of War is exercised exclusively
by either the civilian court or the court-martial, depending on the circumstances as dictated under Section 1 of RA
7055.
It was in June of 2004 that this symmetry was shattered. It appears that at that point, the AFP reconsidered its
earlier decision not to try the 31 officers before the court-martial. There appears per record, a letter dated 17 June
2004, captioned "Disposition Form," signed by a certain De Los Reyes, and recommending that the 31 be charged
as well before the court-martial for violation of Article 96 of the Articles of War and that pre-trial investigation be
reconducted for that purpose. 4 This recommendation was approved by then AFP Chief of Staff Narciso Abaya. It
was this decision to reinitiate court-martial proceedings against the 31 that impelled the present petition for
prohibition.
As stated earlier, I believe that ultimately, petitioners may still be charged with violation of Article 96 of the Articles of
War, notwithstanding the pending case for coup d’etat before the RTC against them. My reason for such view lies in
the wholly administrative nature of Article 96 and the sole penalty prescribed therein, dismissal from service, which
is beyond the jurisdiction of civilian courts to impose. Yet I arrive at such view without any denigration of the RTC
Order, which proceeds from fundamentally correct premises and which, to my mind, bears the effect of precluding
any further charges before the court-martial against petitioners in relation to the Oakwood mutiny. Unfortunately, the
majority gives undue short shrift to the RTC Order and the predicament confronting the present petitioners, who are
now facing not only trial before the civilian court for the crime of coup d’etat, but also court-martial proceedings for
acts which if not identical to those charged in the criminal case are at least integrally related. I respectfully submit
that RA 7055 was precisely designed to generally prevent such anomaly, but that the majority fails to give fruition to
such legislative intent.
Instead, the majority has laid down a general rule that if members of the military are charged before military
tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then the court-martial proceedings
would progress unhampered even if the acts which constitute the violation of the Articles of War also
constitute offenses under the Revised Penal Code. The court-martial proceedings would also ensue even if
the said personnel are also charged for the same acts with a criminal case before the civilian court, and
even if the civilian court determines that the acts are not service-connected. Most critically, this view would
allow the defendant to be tried and convicted by both the military and civilian courts for the same acts,
despite the consistent jurisprudential rule that double jeopardy applies even as between court-martial and
criminal trials. I cannot agree to these general propositions, excepting when the defendants happen to be
charged before the court-martial for violation of Article 96 of the Articles of War.
There are three fundamental questions that are consequently raised. First, can Congress by law limit the
jurisdiction of military tribunals and court-martials? Second, does RA 7055 effectively deprive military
courts jurisdiction over violations of Articles of War 54 to 70, 72 to 92, and 95 to 97 if the civilian court
determines that the offenses charged do not constitute service-connected offenses? And third, does it
constitute double jeopardy if the same military actor is tried and convicted before both civilian and military
courts for the same acts? I respectfully submit that all these questions should generally be answered in the
affirmative.
Jurisdictions of Courts-Martial In
the Philippines Fundamentally Statutory
I begin with the constitutional and statutory parameters of courts-martial in the Philippines.
It is settled, in cases such as Ruffy v. Chief of Staff, 5 that court-martial proceedings are executive in character,
deriving as they do from the authority of the President as the Commander-in-Chief of the armed forces. 6 Indeed, the
authority of the President to discipline members of the armed forces stands as one of the hallmarks of the
commander-in-chief powers. Obedience to the President and the chain-of-command are integral to a professional
and effective military, and the proper juridical philosophy is to accede as much deference as possible to this
prerogative of the President.
However, in Marcos v. Chief of Staff, 7 decided five (5) years after Ruffy, the Court ruled that the word "court" as
used in the Constitution included the General Court-Martial, citing Winthrop’s Military Law and Precedents, which
noted that "courts-martial are [in] the strictest sense courts of justice". 8 Indeed, it would be foolhardy to ignore, with
semantics as expedient, the adjudicative characteristics of courts-martial and their ability to inflict punishment
constituting deprivation of liberty, or even life. A court-martial is still a court of law and justice, 9 although it is not a
part of the judicial system and judicial processes, but remains to be a specialized part of the over-all mechanism by
which military discipline is preserved. 10
Regardless of the accurate legal character of courts-martial, it should go without saying that the authority of the
President to discipline military personnel through that process is still subject to a level of circumscription. Without
such concession, the President could very well impose such draconian measures of military punishment, such as
death by firing squad for overweight soldiers. The Court has indeed, on occasion, recognized limitations and
regulations over courts-martial. In Olaguer v. Military Commission, 11 the Court reasserted that military tribunals
cannot try and exercise jurisdiction over civilians for as long as the civil courts are open and functioning. 12 The
authority of the Supreme Court to review decisions of the court-martial was affirmed in Ognir v. Director of
Prisons, 13 and should be recognized in light of the judicial power of the Supreme Court under the 1987 Constitution,
which extends to determining grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government. And finally, there are the series of rulings on the subject of double
jeopardy, which I shall soon discuss further.
Most strikingly, the "Articles of War" presently in use emanates not from executive fiat, but from a law passed by the
National Assembly known as Commonwealth Act No. 408. As such, the determination of what acts or offenses are
punishable by court-martial was in actuality made not by the President, but by the legislature. As such, the Articles
of War are utterly susceptible to legislative amendment, augmentation, or even revocation.
I do not doubt that without an enabling law, the President would have the power to impose court-martial proceedings
under the aegis of the Commander-in-Chief clause. Yet if there is an enabling law passed, such as Commonwealth
Act No. 408, then the President is bound to exercise the power to prescribe court-martial proceedings only within the
limits imposed by the law. These precepts should not preclude the President from mandating other forms of military
discipline, but if the choice is to subject the soldier concerned to court-martial, then such proceedings should ensue
within the boundaries determined by the legislature under Commonwealth Act No. 408.
American jurisprudence is actually quite emphatic that the jurisdiction of a court-martial is established by statute,
and a court-martial has no jurisdiction beyond what is given by statute. "[A] court-martial [is] a special statutory
tribunal, with limited powers." 14 To quote from Corpus Juris Secundum:
The jurisdiction of a court-martial is premised on an authorized convening authority, court membership in

accordance with the law, and power derived from congressional act to try the person and the offense
charged. [ 15 Thus, in order for a court-martial to have jurisdiction, it must be convened and constituted in
accordance with law[ 16; and a court-martial has no jurisdiction beyond what is given it by statute.[ 17 General court-
martial jurisdiction is not restricted territorially to the limits of a particular state or district.
The long continued practice of military authorities in exercising court-martial jurisdiction may aid in the interpretation
of statutes conferring such jurisdiction; but the authority of a Secretary of an armed forces department to issue
regulations does not permit extension of the jurisdictions of courts-martial of the armed force controlled by
that department beyond the limits fixed by Congress[ 19
The language of statutes granting jurisdiction to courts-martial to try persons for offenses must be construed to
conform as near as may be to the constitutional guarantees that protect the rights of citizens in general, it being
assumed that Congress intended to guard jealously against dilution of the liberties of citizens by the enlargement of
jurisdiction of military tribunals at the expense of the jurisdiction of the civil courts. 20
Clearly then, while court-martial under military law may be sui generis, it is not supra legem. The power to try by
court-martial is established, defined and limited by statute, even if it arises as a consequence of the power of the
President as Commander-in-Chief.
What are the implications of these doctrines to the case at bar? To my mind, they sufficiently establish that
Congress does have the power to exclude certain acts from the jurisdiction of the General Court-Martial. The same
legislature that enacted Commonwealth Act No. 408 is very well empowered to amend that law, as it has done on
occasion. 21 And I submit that Congress has done so with the enactment of RA 7055.
Republic Act No. 7055
The title of RA 7055 reads "An Act Strengthening Civilian Supremacy Over the Military By Returning to the
Civil Courts the Jurisdiction Over Certain Offenses Involving Members of the Armed Forces of the
Philippines, Other Persons Subject to Military Law, and the Members of the Philippine National Police, Repealing
for the Purpose Certain Presidential Decrees." 22 In the Philippines, the conferment of civil jurisdiction over members
of the military charged with non-service connected offenses is predicated on the constitutional principle of civilian
supremacy over the military. 23 As Senator Wigberto Tañada remarked in his sponsorship remarks over Senate Bill
No. 1468, eventually enacted as RA 7055, "[A]s long as the civil courts in the land remain open and are regularly
functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed
by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the
aforementioned constitutional provisions on the supremacy of civilian authority over the military and the integrity and
independence of the judiciary, as well as the due process and equal-protection clauses of the Constitution." 24
The title of the law alone is already indicative of the law’s general intent to exclude from the jurisdiction of
the General Court-martial "certain offenses" which would now be tried by the civil courts. Section 1
operationalizes such intent, asserting as a general rule that members of the AFP "who commits crimes penalized
under the Revised Penal Code, other special penal laws, or local government ordinances xxx shall be tried by the
proper civil court xxx." Notably, the majority does concede the general rule.
The exception of course, are offenses which are service-connected. They are excluded from the jurisdiction of the
civilian courts. It is worth mentioning at this juncture that the concept of "service-connected" offenses as a
determinant of court-martial jurisdiction arose from American jurisprudence. In O’Callahan v. Parker, 25 decided in
1969, the U.S. Supreme Court reversed previous doctrines and announced a new constitutional principle ── that a
military tribunal ordinarily may not try a serviceman charged with a crime that has no service connection. 26
RA 7055 Reposes on the Trial Court
The Specific Role of Determining Whether
The Offense is Service-Connected
Obviously, the ascertainment of whether or not a crime is service-connected is of controversial character,

necessitating the exercise of judgment. Appropriately, that function is assigned by Section 1 not to the courts-
martial, but to the civil courts. Indeed, Section 1 requires that before the offense shall be tried by court-martial,
there must be first a determination before arraignment by the civil court that the offense is indeed service-
connected. Section 1 states:
Members of the Armed Forces of the Philippines and other persons subject to military law xxx who commit crimes or
offenses penalized under the Revised Penal Code, other special penal laws, or local government ordinances,
regardless of whether or not civilians are co-accused, victims or offended parties which may be natural or juridical
persons, shall be tried by the proper civil court, except when the offense, as determined before arraignment
by the civil court, is service-connected, in which case the offense shall be tried by court-martial xxx
As used in this Section, service-connected crimes or offenses shall be limited to those defined in Articles
54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as amended. 27 (Emphasis
supplied.)
There are two possible scenarios that may arise after a soldier commits a crime which is punishable under both the
Revised Penal Code and under Commonwealth Act No. 408.
In one, the soldier is charged only with violation of the Articles of War and tried by the court-martial. In this situation
wherein no criminal case is filed against the soldier, the court-martial continues unimpeded.
In the other, the soldier is charged with both violation of the Articles of War (triable by court-martial) and a criminal
offense involving the same act (triable by the civilian court). Here, a different set of rules operates. RA 7055 comes
into application in such a case. Section 1 of RA 7055 clearly reposes on the trial court, and not the court-martial, the
duty to determine whether the charges in the information are service-connected. If the civilian court makes a
determination that the acts involved are not service-connected, then the court-martial will generally have no
jurisdiction.
In this particular role, the trial court is merely guided in its determination by Articles of War 54 to 70, 72 to
92, and 95 to 97, the specific articles to which the determination of service-connected offenses according to
RA 7055 is limited. The importance of the trial court’s function of determination cannot be dismissed lightly. Since
the law mandates that the trial court make such a determination, it necessarily follows that the court has to ascertain
on its own whether the offenses charged do fall within the Articles of War. It would not bind the civilian court that
the defendants are charged with the same acts before the court-martial under Articles of War 54 to 70, 72 to
92, and 95 to 97. The civilian court is required to still make a determination, independent of that of the court-
martial, that the acts charged constitute a service-connected offense.
However, the majority is satisfied that since petitioners are charged before the military tribunal with violation of one
of the Articles of War so mentioned in Section 1 of RA 7055, this offense is within the jurisdiction of the court-martial.
The majority is thus of the position that regardless of whatever transpires in the civilian court trial, court-martial
proceedings may ensue unimpeded so long as the defendants therein are charged with Articles of War 54 to 70, 72
to 92, and 95 to 97. Such jurisdiction of the court-martial subsists even if the civilian courts had determined that the
acts which constitute the offense triable under court-martial are not service-connected. This position renders
utterly worthless the function of the civilian courts to determine whether the offense is indeed service-
connected, as such determination would no longer have any bearing on the jurisdiction of the courts-
martial to try the same acts.
Justice Carpio, in particular, asserts in his Concurring Opinion that the civilian court is limited to "only a facial
examination of the charge sheet in determining whether the offense charged is service connected." 28 This
proposition negates the entire purpose of RA 7055, as it would ultimately render the military as the sole judge
whether a civilian court can acquire jurisdiction over criminal acts by military personnel, even if such soldier has
committed a crime under the Revised Penal Code. Under this position, all the military has to do is to charge the
actor with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, and the civilian court would be effectively
deprived of jurisdiction to try the offense, even if the act is clearly punishable under civil penal laws. With all due
respect, such "facial examination", which would be undertaken by a learned judge of a civilian court, can be
accomplished with ease by a non-lawyer, by a fifteen-year old, or anybody with rudimentary skills in the English
language. After all, the only necessary act for such purpose would be to look at the charge sheet and the Articles of
War. As long as the civilian court sees that charge sheet states that the defendants have been charged with any of
the aforementioned Articles of War, the determinative function would already be accomplished.
Under the standard of "facial examination," the trial court can very well make its determination even without the
benefit of charge sheet if there is no such charge sheet yet. In reality though, the trial courts primary source of
information and basis for determination is the information in the criminal case before it, as well as the affidavits and
documents which the prosecution may make available to it. Assuming that there is a court-martial charge sheet, the
same on its face may be incapable of capturing the particulars of the criminal acts committed, as there is no
prescribed demand for such particularity. As such, a "facial examination" could not suffice in affording the civilian
court any significant appreciation of the relevant factors in determining whether the offense was indeed service-
connected.
Worse, by advocating "facial examination" as a limit, this view would actually allow malfeasors in the military to
evade justice, if they are fortunate enough to have sympathizers within the military brass willing to charge them with
a violation of the aforementioned articles of war in order that they escape the possibly harsher scrutiny of the civilian
courts. For example, Article 69 of the Articles of War punishes persons subject to military law who commit frauds
against the government, which include, among others, stealing, embezzling, knowingly and willfully
misappropriating, applying to his own use or benefit or wrongfully or knowingly selling or disposing of "any
ordinance, arms, equipment, ammunition, clothing, subsistence stores, money or other property of the Government
furnished or intended for the military service." 29 The offense, which according to the majority is strictly a service-
connected offense, is punishable by "fine or imprisonment, or by such other punishment as a court-martial may
adjudge, or by any or all of said penalties." 30 A military comptroller who embezzles the pension funds of soldiers
could be made liable under Article 95, and thus could be appropriately charged before the court-martial. Also
pursuant to Article 95, the court-martial has the discretion to impose as final punishment a fine of P1,000.00, even if
the comptroller embezzled millions of pesos. If the said comptroller has friends within the military top brass, the
prospect of such a disproportionate penalty is actually feasible.
Now, if Justice Carpio’s position were to be pursued, no civilian court, whether the RTC or the Sandiganbayan,
could acquire jurisdiction over the comptroller for the offense of embezzlement, which is punishable under the
Revised Penal Code and the Anti-Graft and Corrupt Practices Act, the moment the comptroller faces the charge of
violating Article 95 before the court-martial. Why? Because these civilian courts would be limited to "only a facial
examination of the charge sheet in determining whether the offense is service-connected." Justice Carpio adds, "[i]f
the offense, as alleged in the charge sheet, falls under the enumeration of service-connected offenses in Section 1
of RA No. 7055, then the military court has jurisdiction over the offense."
Applying Justice Carpio’s analysis to this theoretical example, the offense is "as alleged in the charge sheet" is a
violation of Article 95 of the Articles of War. Article 95 "falls under the enumeration of service-connected offenses in
Section 1 of R.A. No. 7055." Then, according to Justice Carpio, "the military court has jurisdiction over the offense."
Yet Section 1 also
states that as a general rule that it is the civilian courts which have jurisdiction to try the offense, "except when the
offense, as determined before arraignment by the civil court, is service-connected, in which case the
offense shall be tried by court-martial." The ineluctable conclusion, applying Justice Carpio’s view to our
theoretical example, is that the civilian court does not have jurisdiction to try the offense constituting
embezzlement since it was forced to determine, following the limited facial examination of the charge sheet,
that the act of embezzlement punishable under Article 95 of the Articles of War is a service-connected
offense.
If "facial examination" ill-suffices as the appropriate standard of determination, what then should be the proper level
of determination?
Full significance should be accorded the legislative tasking of the civil court, not the military court, to determine
whether the offense before it is service-connected or not. Indeed, determination clearly implies a function of
adjudication on the part of the trial court, and not a mechanical application of a standard pre-determined by some
other body. The word "determination" implies deliberation 31 and is, in normal legal contemplation, equivalent to "the
decision of a court of justice." 32 The Court in EPZA v. Dulay 33 declared as unconstitutional a presidential decree
that deprived the courts the function of determining the value of just compensation in eminent domain cases. In
doing so, the Court declared, "the determination of ‘just compensation’ in eminent domain cases is a judicial
function." 34
The majority shows little respect for the plain language of the law. As earlier noted, they believe that the
determination reposed in the civilian court is limited to a facial examination of the military charge sheet to ascertain
whether the defendants have been charged before the court-martial with the violation of Articles of War 54 to 70, 72
to 92, and 95 to 97. Their position could have been sustained had Section 1 read, "As used in this Section, service-
connected crimes or offenses are those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, as amended," discarding the phrase "shall be limited to" immediately preceding the
words "those defined." Such phraseology makes it clear that "service-connected crimes or offenses" are equivalent
to "Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97." Yet Section 1 is hardly styled in that fashion. Instead, it
precisely reads, "xxx service-connected crimes or offenses shall be limited to those defined in Articles 54 to 70
xxx."
What is the implication of the phrase "shall be limited to"? This has to be tied to the role of determination ascribed to
the civilian court in the previous paragraph under Section 1. Note again, "determination" signifies that the civilian
court has to undertake an inquiry whether or not the acts are service connected. As stated earlier, the Articles of
War specified in Section 1 serve as guides for such determination. "shall be limited to" assures that the civilian court
cannot rely on a ground not rooted on those aforementioned articles in ruling that an offense is service-connected.
For example, the civilian court cannot declare that an offense is service-connected because the offender is a three-
star general. Being a three-star general is in no way connected to Articles 54 to 70, Articles 72 to 92, and Articles 95
to 97.
At the same time, Section 1 concedes that if the act or offense for which the defendant is prosecuted before the
civilian court also falls within those specified Articles of War, then the civilian court has to further determine whether
the offense is service-connected. For example, a soldier who knowingly harbors or protects an enemy of the state
may be liable under Article 82 of the Articles of War, which generally punishes military persons who aid the enemy,
or under Article 114 of the Revised Penal Code, which classifies giving aid or comfort to the enemy as an act of
treason. If the soldier is charged with treason, the civilian court may be called upon to determine whether the acts of
assistance are service-connected, and it should be able to take into account the particular circumstances
surrounding such acts. If the trial court determines that the offense is indeed service-connected, finding for example
that the defendant had used his/her rank to assist the enemy, then it may rely on Article 82 in its conclusion that the
act is service-connected. If however, the actor’s being also a soldier proved merely incidental and inconsequential to
the assistance rendered to the enemy, the civilian court could very well declare that the offense is not service-
connected and thus subject to trial for treason before it.
The function devolved by the law on the trial court involves the determination of which offenses are service-
connected and which offenses are not. The power of determination, however, is circumscribed by the law itself. By
employing the phrase "shall be limited to" and tying it with specifically enumerated Articles, the law precludes the
trial court from characterizing acts which fall under the Articles not so enumerated as service-connected. Since
Article 93 defining rape and Article 94 defining "various crimes" are not included in the enumeration in RA 7055 it
follows that the trial court is devoid of authority to declare rape and "various crimes" as service-connected.
Again, the general purpose of RA 7055 is to deprive the court-martial of jurisdiction to try cases which are
properly cognizable before the civilian courts. Hence, if a soldier is charged with violation of any of the articles other
than those referred to in Section 1, the court-martial is deprived of jurisdiction under RA 7055 if such violation also
constitutes a crime or offense under our penal laws. Section 1, by citing those aforementioned articles, carves an
exception to the general rule, yet at the same time, qualifies this exception as subject to the determination of the trial
court. Hence, if the trial court so determines that the "service-connected" exception does not apply, the general rule
depriving the court-martial jurisdiction over the offense should continue to operate.
It is worth mentioning that prior to RA 7055, Commonwealth Act No. 408 recognized an exception to the rule that
military persons are always subjected to court-martial in lieu of civil trial. Article 94 stipulated that a person subject to
military law who committed a felony, crime, breach of law or violation of municipal ordinance recognized as an
offense of a penal nature was punishable by court-martial, provided that such act was committed "inside a
reservation of the [AFP]," or outside such reservation when the offended party is a person subject to military
law. 35 The implication, therefore, was that if such act described were committed outside a military reservation, the
civilian courts would have jurisdiction to try such offense. As the official Manual for Courts-Martial of the AFP states,
"[w]henever persons subject to military law commit any of the offenses above stated outside Philippine Army
reservations, they fall under the exclusive jurisdiction of civil courts." 36
RA 7055 clearly expands this exception, by now mandating that even crimes committed within military reservations
fall within the jurisdiction of civil courts, the only exception remaining is if it is determined by the civilian court that the
offense is actually service-connected. Significantly, Section 1 of RA 7055 did not include Article 94 as among the
Articles of War which define service-connected offenses. 37 Evidently the situs of the offense is not material as to
whether the acts committed are service-connected offenses.
Admittedly, RA 7055 effectively curtails the ability of the military leadership to discipline the soldiers under their
command through the court-martial process. This is accomplished though not by shielding errant soldiers from the
criminal processes, but instead through the opposite route, by entrusting to the civilian courts the authority and
sufficient discretion to impose substantive justice on such soldiers, conformably with the constitutional principle of
civilian supremacy over the military. It must be noted that the acquisition of exclusive jurisdiction by the court-martial
to try soldiers for acts punishable under penal laws is a double-edged sword of mischief. It can be utilized by a
military leadership with an unquenchable thirst to punish its soldiers, a procedure which is facilitated due to the
relatively lighter evidentiary requirements under military justice. It can also be utilized by a military leadership greatly
sympathetic to one of their "mistahs" under fire, since the ability to inflict the lightest and most disproportionate of
punishments falls within the wide range of discretion in the punishment accorded by law to courts-martial. Either
premise is undesirable, and precisely RA 7055 was enacted to ensure that the civilian courts have all the
opportunity to acquire jurisdiction over military persons who commit crimes, and to assure the trial courts all the
discretion necessary to determine whether it should assume jurisdiction if the exception provided under Section 1 of
the law is invoked.
RA 7055 Generally Prevents Military Personnel
From Facing Simultaneous Criminal Trials and Courts-Martial
Over the Same Acts or Offenses
It is thus not enough that petitioners have been charged with violating an Article of War referred to in Section 1 to
authorize their court-martial to proceed, since the same act that constitutes the violation of an Article of War is also
alleged in the complaint for coup d’etat now pending in the civilian courts. In order that the court-martial proceedings
against petitioners could ensue, it is indisputably necessary that the RTC Order determining that the charges before
the court-martial are not service-connected is directly nullified or reconsidered with the needed effect of terminating
the criminal case for coup d’etat against them. If the act constituting the offense triable before the civilian courts and
the court-martial are the same, then the defendants may be tried only either before the civilian courts or the court-
martial, and not in both tribunals.
This is precisely why the exceptions under Section 1 of RA 7055 were provided for – to prevent the anomaly
of the defendants being subjected to two different trials of equally punitive value for the same act. It is well
worth noting that the Senate deliberations on RA 7055 indicate a strong concern on the part of the legislators over
the situation wherein violations of the Articles of War also stand as violations of the Revised Penal Code. The
following exchange between the late Senate President Neptali Gonzales and Senator Wigberto Tañada is worth
noting:
Senator Gonzales. Again, in line 16, it says: The offenses defined in Articles 54 to 93 and 95 to 97 of the Articles of
War, established by Commonwealth Act Numbered Four Hundred Eight, as amended, the same shall be triable by
court-martial.
But there are many offenses which are also violations of the Articles of War. For example, murder. It may
not necessarily be a murder of a fellow member of the Armed Forces. That is also a violation of the Articles
of War; but, at the same time, it is also a crime punishable under the Penal Code. What do we do in such a
situation?
Senator Tañada. In such an example, that would be tried by the civil courts. We had accepted the amendment
proposed by Senator Ziga to exclude Article 93 under the Articles of War which would refer to murder or rape
committed in times of war. Now, we have excluded that, because we believe that the murder or rape, whether
committed in times of war, should not be tried by the civil courts.
Senator Gonzales. Do we have the distinguished Gentleman’s assurance that after deleting Article 93, also with
respect to Articles 54 to 92, 95 to 97, there is absolutely no situation wherein the same act constitutes a violation of
the Revised Penal Code and at the same time a violation of the Articles of War?
Senator Tañada. Yes, Mr. President. We excluded also Article 94 of the Articles of War, because this refers to
various crimes that may be committed by persons subject to military law, which crimes can be considered as
felonies, breach of law, or 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.
Senator Gonzales. We have the assurance of the distinguished Gentleman, and we rely on that assurance. xxx 38
The passage deserves to be cited as it affirms the deliberate intent, already evident in the text of the law itself, to
avoid the scenario of the civilian courts and the courts-martial exercising concurrent jurisdiction over the same acts.
Hence, for as long as the act committed by the soldier does not fall within those Articles of War referred to in Section
1, the civilian courts alone exercises jurisdiction over the trial of the acts. If it is asserted by the courts-martial, or
otherwise argued, that the act complained of falls within those Articles of War referred to in Section 1, then the
civilian court must make a determination that the acts committed are "service-connected," with the cited Articles as
reference, before it can exercise its jurisdiction to the exclusion of the courts-martial. If the trial court declares that
the acts are service-connected, it then is obliged to decline jurisdiction in favor of the courts-martial.
The cited passage does express the opinion of Senator Tañada that there is absolutely no situation wherein the
same act constitutes a violation of the Revised Penal Code and at the same time a violation of the Articles of War.
Such opinion might be cited to refute the declaration in the RTC Order that the acts charged before the court-martial
were absorbed in the crime of coup d’etat. Yet caution should be had before this opinion of Senator Tañada is cited
for that purpose. The quoted remarks were made on 21 May 1990, or five (5) months before the crime of coup
d’etat was incorporated into the Revised Penal Code with the enactment of Republic Act No. 6968 on 24 October
1990. Certainly, when Senator Tañada made such opinion, he had no reason to believe that the cited Articles of
War did not constitute any violation of the Revised Penal Code, particularly the crime of coup d’etat, since no such
crime existed then.
Double Jeopardy
There is another vital reason RA 7055 cannot be interpreted in such a way as to permit both civilian and military
trials of military personnel over the same act. Double jeopardy would arise as a consequence if such an
interpretation were foisted.
It is very well settled that double jeopardy attaches if one is tried by both a military court and a civilian court over the
same act, notwithstanding the differing natures of both tribunals. The rule was pronounced by the Philippine
Supreme Court as far back as 1903, in U.S. v. Colley. 39 Therein, the defendant was sentenced to death by a court-
martial after murdering a fellow soldier, but the sentence could not be carried out after the reviewing authority of the
Army concluded that the military authorities were without power to carry into execution the sentence. He then was
charged with the same offense before a civilian court. In ruling that the criminal case should be dismissed, the Court
ruled that the criminal trial was barred by double jeopardy. The Court pronounced: "So here there is but one offense,
that against the United States, and when the Government chooses the tribunal in which to try an offender, when the
trial takes place in that tribunal, and when the accused is convicted and sentenced, he can not again be put in
jeopardy in another court of the same sovereignty. xxx It follows that the defendant having been once in jeopardy
can not be tried again for the offense of which he was formerly convicted." 40 A similar situation obtained in U.S. v.
Tubig, 41 decided some months later, and a similar judgment of acquittal was mandated by the Court on the ground
of double jeopardy.
The doctrine has survived past the American occupation. In 1954, the Court was again confronted with the issue
whether a sentence passed by a military court barred further prosecution of the same offense in a civilian court. The
Court, in Crisologo v. People, 42 squarely ruled that double jeopardy indeed barred such prosecution:
As we see it, the case hinges on whether the decision of the military court constitutes a bar to further prosecution for
the same offense in the civil courts.
The question is not of first impression in this jurisdiction. In the case of U. S. vs. Tubig, 3 Phil., 244, a soldier of the
United States Army in the Philippines was charged in the Court of First Instance of Pampanga with having
assassinated one Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already been
previously convicted and sentenced by a court-martial for the same offense and had already served his sentence.
The trial court overruled the plea on the grounds that as the province where the offense was committed was under
civil jurisdiction, the military court had no jurisdiction to try the offense. But on appeal, this court held that "one who
has been tried and convicted by a court-martial under circumstances giving that tribunal jurisdiction of the defendant
and of the offense, has been once in jeopardy and cannot for the same offense be again prosecuted in another
court of the same sovereignty." In a later case, Grafton vs. U. S. 11 Phil., 776, a private in the United States Army in
the Philippines was tried by a general court-martial for homicide under the Articles of War. Having been acquitted in
that court, he was prosecuted in the Court of First Instance of Iloilo for murder under the general laws of the
Philippines. Invoking his previous acquittal in the military court, he pleaded it in bar of proceedings against him in the
civil court, but the latter court overruled the plea and after trial found him guilty of homicide and sentenced him to
prison. The sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United States,
the sentence was reversed and defendant acquitted, that court holding that "defendant, having been acquitted of the
crime of homicide alleged to have been committed by him by a court-martial of competent jurisdiction proceeding
under the authority of the United States, cannot be subsequently tried for the same offense in a civil court exercising
authority in the Philippines."
There is, for sure, a rule that where an act transgresses both civil and military law and subjects the offender to
punishment by both civil and military authority, a conviction or an acquittal in a civil court cannot be pleaded as a bar
to a prosecution in the military court, and vice versa. But the rule "is strictly limited to the case of a single act which
infringes both the civil and the military law in such a manner as to constitute two distinct offenses, one of which is
within the cognizance of the military courts and the other a subject of civil jurisdiction" (15 Am. Jur., 72), and it does
not apply where both courts derive their powers from the same sovereignty. (22 C. J. S., 449.) It therefore, has no
application to the present case where the military court that convicted the petitioner and the civil court which
proposes to try him again derive their powers from one sovereignty and it is not disputed that the charges of treason
tried in the court-martial were punishable under the Articles of War, it being as a matter of fact impliedly admitted by
the Solicitor General that the two courts have concurrent jurisdiction over the offense charged. 43
As noted earlier, Marcos, relying on Winthrop’s Military Law, pronounced that courts-martial are still courts in
constitutional contemplation. 44 At the same time, the Court in Marcos pursued the logic of this thinking insofar as
double jeopardy was concerned:
Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and not an
administrative case, and therefore it would be, under certain conditions, a bar to another prosecution of the
defendant for the same offense, because the latter would place the accused in double jeopardy, is shown by the
decision of the Supreme Court of the United States in the case of Grafton vs. United States, 206 U. S. 333; 51 Law.
Ed., 1088, 1092, in which the following was held:
"If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and
conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally
take cognizance; . . . and restricting our decision to the above question of double jeopardy, we adjudge that,
consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having
been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military
court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried
for the same offense in a civil court exercising authority in that territory."
I am aware that following the Court’s 1993 ruling in People v. Pineda, 45 double jeopardy will not attach unless either
the RTC or the court-martial passes sentence on the petitioners. Yet even applying the Pineda doctrine, it is
inevitable that, once either tribunal renders judgment on the merits, double jeopardy would bar the further
prosecution by the court which was last in time to pronounce sentence, regardless whether petitioners were
convicted or acquitted. If both the RTC trial for coup d’etat and the court-martial of the petitioners are allowed to
proceed unhampered, the strong likelihood arises that either one will be eventually mooted, no matter the stage,
should the other pronounce sentence.
I submit that RA 7055 precisely sought to avoid such a scenario by prescribing, as a general rule, an exclusively
civilian trial for military personnel charged with offenses punishable under our penal laws, even if they are also
punishable under the Articles of War. The only general exception lies if the civilian court determines that the acts
constituting the court-martial offenses are service-connected, as defined under those Articles of War referred to in
Section 1, in which case jurisdiction falls exclusively with the court-martial. If the civilian court arrives at a contrary
determination, the civilian court retains jurisdiction to the exclusion of the court-martial unless and until such
determination is reconsidered or set aside, or unless the criminal case is dismissed or dropped for reasons other
than acquittal on the merits. The only exception I am willing to concede is if the charge before the court-martial falls
under Article 96, which I will discuss further.
Notion of Absorption of Crimes
Irrelevant to Determination under RA 7055
I would like to dwell briefly on the suggestion that the RTC erred in pronouncing that the acts for which petitioners
were charged before the court-martial were "absorbed" in the crime of coup d’etat. Justice Callejo, Sr., in his
Concurring Opinion, cites Baylosis v. Chavez, 46 and the rule that the doctrines laid down on the absorption of
common crimes by political crimes do not apply to crimes which are sui generis offenses.
This aspect is no longer material to my own disposition of the petition, yet I think it is misplaced to apply the doctrine
of absorption of crimes to the determination of service-connected offenses made by the civilian court pursuant to
Section 1 of RA 7055. The function of such determination by the trial court under RA 7055 is wholly different from
that utilized by the trial court in ascertaining whether crime A is absorbed by crime B in the classic criminal law
context. The latter is material to the trial court in reaching conclusions as to which crimes may be considered against
the accused and which penalties may apply as to them. However, the purpose of the determination under RA 7055
is merely for establishing whether the acts for which the accused stand charged before the courts-martial are indeed
service-connected offenses cognizable exclusively before the military courts, or non-service connected offenses
cognizable exclusively before the civilian courts. The determining factor is whether the act is "service-connected,"
not whether one act is absorbed into the other.
The RTC may have been too loose in language when it utilized the word "absorbed," yet the word should not be
appreciated in the context of absorption of crimes, as such consideration is wholly irrelevant for purposes of Section
1. Instead, I think that the pertinent conclusion of the RTC in its Order was that the acts charged before the court-
martial were not service-connected, as they were committed in furtherance of the crime of coup d’etat. This, and not
the notion of absorption of crimes, should be the foundational basis for any attack of the RTC Order.
The Special Circumstance Surrounding Article of War 96
It is my general conclusion that if the civilian court makes a determination that the acts for which the accused stands
charged of, for violating those Articles of War referred to in Section 1 of RA 7055, are not service-connected, then
such determination, once final, deprives the court-martial jurisdiction to try the offense. However, I submit that Article
of War 96 warrants special consideration, as it differs in character from the other Articles of War referred to in
Section 1 of RA 7055.
Article 96 of Commonwealth Act No. 408, as amended, reads:
Art. 96. Conduct Unbecoming an Officer and a Gentleman. — Any officer, cadet, flying cadet, or probationary
second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman shall be dismissed from the
service.
Justice Callejo, Sr. points out in his Concurring Opinion that "conduct unbecoming an officer and a gentleman is a
uniquely military offense," 47 and that "[t]he article proscribing conduct unbecoming an officer and a gentleman has
been held to be wholly independent of other definitions of offenses xxx [and] is not subject to preemption by other
punitive articles." 48 It is difficult to dispute these conclusions, which derive from American military case law. After all,
"conduct unbecoming" pertains to the unique exigencies of military life and discipline, whereby an officer is expected
to conform to an idiosyncratic etiquette not required of civilians.
Yet more pertinent to my position is the penalty prescribed by Article 96 for "conduct unbecoming." The penalty is
dismissal from service, a penalty which is administrative in character, and beyond the jurisdiction of the civilian court
to impose. Notably, of all the Articles of War referred to in Section 1 of RA 7055, it is only Article 96 that provides for
dismissal from service as the exclusive penalty. All the other articles so mentioned allow for the penalty of death,
imprisonment, or a punishment "as a court-martial may so direct" which could very well constitute any deprivation of
life or liberty. While these other articles prescribes a penalty which is penal in nature, it is only Article 96 which
provides for a penalty which is administrative in character.
As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of Article 96 of
Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC determines that the acts
constituting such violation are service-connected. The intent of RA 7055 is to restore to civilian courts jurisdiction
over offenses which are properly cognizable by them to the exclusion of courts-martial. Such intent could obviously
not extend to those offenses which the civilian courts do not have jurisdiction to try and punish. Civilian courts are
utterly incapable of penalizing military officers with the penalty of discharge from the service, since the penalty is
administrative in character 49 and imposable only by the military chain of command.
Petition Should Have Been Granted If Petitioners
Were Charged Under A Different Article of War
Still, if petitioners were facing the charge of mutiny under Article 63 of the Articles of War, or any other Article of War
for that matter, in connection with the Oakwood incident, the petition would have been fully meritorious. The RTC
has made a determination that all acts related to the Oakwood incident are not service-connected offenses. I am not
fully prepared to subscribe to the position that the acts relating to Oakwood were "absorbed" in the offense of coup
d’etat. However, I do concede two important points. First, the RTC did determine that the acts relating to Oakwood
were not service-connected. Second, the determination of the RTC, as embodied in the 11 February 2004 Order,
remains binding as the said Order has not been appealed. It has not been modified or set aside, even by the
present decision or by the ruling in Navales.
The majority is clearly in a quandary, all too willing to pronounce that the Order is wrong, or even a nullity, yet
unable to directly nullify the same. Respondents argue that the Order is already final and beyond challenge, and that
contention should not be dismissed offhand. The suggestion has been raised that the principle of res judicata should
not be made to apply in this case, since the AFP was not a party to the criminal case. This claim is off-tangent,
assuming as it does that the AFP somehow has a distinct and segregate legal personality from the government of
the Philippines. The AFP is part of the government. It is indeed headed by the same person who heads the
executive branch of government. The AFP likewise answers to officers of the executive branch, such as the
Secretary of Defense. Certainly, the rendition of the Order would have presumably caused the same level and
degree of grief on the AFP as it would have on the Department of Justice.
But was the government truly offended by the RTC Order? If it were, it should have timely elevated the same for
appellate review. The fact that it did not gives further indication that the government recognized that Order as
fundamentally correct, especially considering that it contains the very same conclusions reached by the Pre-Trial
Investigating Panel constituted by the AFP.
I think in the end, respondents fully understood and applied the correct implications of RA 7055 as it pertained to
petitioners. Had respondents been aligned in thinking with the majority, they would have been emboldened to
charge petitioners with violations of other Articles of War despite the RTC Order and the pendency of the coup
d’etat case. Petitioners could have very well been charged before the court-martial with violation of Article 63, for
mutiny, just as the 290 other participants in the "Oakwood mutiny." Respondents however did not do so, respecting
in fact the assumption of jurisdiction by the civilian court over the crime of coup d’etat. Instead, respondents limited
the court-martial charge against petitioners for violation of Article 96, a punitive article which is nonetheless wholly
administrative in character and in penalty.
The majority unfortunately shows no similar prudence. Instead, it has opted to take the path that leads to most
resistance. With the decision today, there now stands a very real danger tomorrow that persons standing criminal
trial before the civil courts, including the Sandiganbayan, who also happen to be facing charges before the court-
martial for violation of Articles 54 to 70, 72 to 92, 95 or 97, will move for the dismissal of all their cases before the
civilian courts. Assuming that there is integral relation between the acts now cognizable under court-martial and the
acts for which those defendants face criminal trial, the trial courts will feel but little choice to dismiss those charge, in
light of the present majority ruling. Military justice was once supreme over civilian justice. We should not go down
that way again. Too many ghosts haunt that road.
I vote to dismiss the petition, for the reason discussed above. Insofar as the majority ruling deviates from the views I
stated herein, I respectfully dissent.
DANTE O. TINGA
Associate Justice
Footnotes
1
Rollo, pp. 107-115.
2
See id. at 186-206.
3
G.R. No. 162318 & 162341, 25 October 2004, 441 SCRA 393. The author of this opinion was a member of
the Court that unanimously decided Navales, which used a similar rationale in dismissing the petitions
therein to that now employed by the majority. Even at present, the author submits that Navales was correctly
decided, considering the following declaration made by the Court therein: " There was no factual and legal
basis for the RTC (Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War
were committed in furtherance of coup d'etat and, as such, absorbed by the latter crime. It bears stressing
that, after a reinvestigation, the Panel of Prosecutors found no probable cause for coup d'etat
against the petitioners and recommended the dismissal of the case against them. The trial court
approved the recommendation and dismissed the case as against the petitioners. There is, as yet, no
evidence on record that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles
of War in furtherance of coup d'etat" Navales v. Abaya, id., at 417. Nonetheless, the author acknowledges
that several passages in Navales are not consistent with the views expressed in this Opinion which now
embodies the author’s present thinking, arrived at after considerable reevaluation of the legal issues
involved.
4
Rollo, pp. 266-267.
5
75 Phil. 875 (1946).
6
See also e.g., S/Sgt. Santiago v. Lt. Col. Alikpala, et al., 134 Phil. 309, 318 (1968).
7
89 Phil. 246 (1951).
8
Id. at 248-249.
9
Claro C. Gloria, Philippine Military Law, p. 18 (1956), citing Winthrop, Military Law and Precedents , 2nd
Ed., p. 54.
"As a court of law, it is bound, like any court, by the fundamental principles of law, and in the absence of a
special provision on the subject in the military code, it observes in general the rules of evidence as adopted
in the civil courts. As a court of justice, it is required, by the terms of its statutory oath, to adjudicate between
the Philippines and the accused "without partiality, favor, or affection," and according, not only to the laws
and customs of the service, but to its "conscience, i.e., its sense of substantial right and justice unaffected by
technicalities. In the strictest sense courts-martial are courts of justice."
10
Magno v. de Villa, G.R. No. 92606, 26 July 1991, 199 SCRA 663, 673, citing Chief Justice Teehankee in
Vargas v. RADM Kilcline, et al.
11
GR. Nos. L-54558 & L-69882, 22 May 1987, 150 SCRA 144.
12
Id. at 165.
13
80 Phil. 401 (1948).
14
Collins v. McDonald, 258 US 416, 417.
15
NCMR - U.S. v. Moody, 10 M.J. 845.
16
ACMR – U.S. v. Wilson, 27 M.J. 555.
17
In re Wilson, D.C.Va., 33 F.2d 214.
18
U.S. ex rel. Hirshberg v. Cooke, N.Y., 69 S.Ct. 530, 336 U.S. 210, 93 L.Ed. 621.
19
U.S. ex rel. Flannery v. Commanding General, Second Service Command, D.C.N.Y., 69 F.Supp. 661.
20
57 C.J.S. Military Justice § 156. Emphasis supplied.
21
Com. Act No. 408 has been amended by Rep. Act No. 242 (1948) and Rep. Act No. 516 (1950).
22
Emphasis supplied.
23
See Constitution, Art. II, Section 3.
24
Record of the Senate, 9 May 1990, p. 671.
25
395 U.S. 298 (1969).
26
See also Gosa v. Mayden, 413 U.S. 665, 672 (1973). O’Callahan in turn was reversed by the U.S.
Supreme Court in its 1987 ruling in Solorio v. U.S., 483 U.S. 435, which reiterated the previous doctrine that
the proper exercise of court-martial jurisdiction over an offense hinged on one factor: the military status of
the accused. Solorio v. U.S., id. at 450-451. Still, it would be foolhardy to apply any persuasive value to the
Solorio ruling to the present petition. The Court in Solorio whole-heartedly embraced the principle that it was
the U.S. Congress that possessed "the authority to regulate the conduct of persons who are actually
members of the armed services", id., at 441. The U.S. Supreme Court also acknowledged that "Congress
has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the
military. As [the U.S. Supreme Court] recently reiterated, ‘judicial deference… is at its apogee when
legislative action under the congressional authority to raise and support armies and make rules and
regulations for their governance is challenged.’" Id., at 447, citing Goldman v. Weinberger, 475 U.S. 503,
508 (1986). There was no American statute that prescribed the "service-connected" standard, even at the
time O’Callahan was decided, the latter decision predicated instead on the Fifth and Six Amendments in the
Bill of Rights. In the Philippine setting, "service-connected" is a standard duly legislated and enacted by
Congress under Rep. Act No. 7055. My views in this Opinion are thus conformable even to the Solorio
decision.
27
Section 1, Rep. Act No. 7055. Emphasis supplied.
28
Concurring Opinion, J. Carpio, infra.
29
See Article 95, Com. Act No. 408, as amended.
30
Id.
31
"The words ‘a design, a determination, to kill, distinctly formed in the mind’ in an instruction, imply
deliberation. ‘xxx The word ‘determination in this instruction is not used in any technical sense; in fact, it has
no technical sense in which it means less than it does in popular signification. Webster defines it to be a
‘decision of a question in the mind; firm resolution; settled purpose.’ Can it be said that a question can be
decided, a wavering resolution made firm, or a hesitating purpose settled without deliberation?" 12 Words
and Phrases (1954 ed.), p. 478-479; citing State v. Ah Mook, 12 Nev. 369, 390.
32
1 Bouvier’s Law Dictionary (8th ed., 1914), p. 858.
33
G.R. No. L-59603, 29 April 1987, 149 SCRA 305.
34
Id. at 316. Justice Vicente Mendoza’s declaration in Iglesia Ni Cristo v. Court of Appeals, 328 Phil. 893
(1996), is worth mentioning. "Indeed, I cannot understand why, after ruling that the valuation of property in
eminent domain is essentially a judicial function which cannot be vested in administrative agencies, this
Court should be willing to leave the valuation of that priceless commodity — expression, whether by means
of motion picture or television — to administrative agencies with only occasional review by the courts. The
trend may be toward greater delegation of judicial authority to administrative agencies in matters requiring
technical knowledge and as a means of relieving courts of cases which such agencies can very well attend
to. There is no justification, however, for such delegation in the area of our essential freedoms, particularly
freedom of expression, where "only a judicial determination in an adversary proceeding [can] ensure the
necessary sensitivity to freedom of expression." Id. at 962, J. Mendoza, Separate Opinion.
35
This proviso was enacted as an amendment to Com. Act No. 408 by Rep. Act No. 242 in 1948.
36
A Manual for Courts-Martial: Armed Forces of the Philippines, p. 181.
37
See note 27.
38
Record of the Senate, 21 May 1990, p. 840.
39
3 Phil. 58 (1903).
40
Id. at 66.
41
3 Phil.244 (1904).
42
94 Phil. 477 (1954).
43
Id. at 479-480.
44
Supra note 9.
45
G.R. No. 44205, 16 February 1993, 219 SCRA 1.
46
G.R. 95136, 3 October 1991, 202 SCRA 405.
47
Concurring Opinion of Justice Callejo, Sr., infra; citing U.S. v. Weldon, 7 M.J. 938 (1979).
48
Id. citing U.S. v. Taylor, 23 M.J. 341 (1987).
49
"The provisions of both the Civil Code and the Rules of Court regarding the relationship between the
criminal and civil liabilities of an accused do not contemplate administrative actions against government
officers and employees. While there may be specific statutes making criminal guilt indispensable to the
dismissal or any other form of administrative punishment for certain public employees, and there have been
instances when the court itself did order reinstatement as a consequence of absolute acquittal, as a rule xxx
the administrative determination as to an employee’s dismissal or punishment in any other way is not
predicated in any respect on the result of corresponding criminal proceedings." Rice and Corn
Administration v. Silao, G.R. No. L-25294, 21 August 1980, 99 SCRA 200, 207-208. "[T]he criminal action is
separate and distinct from the administrative case. And, if only for that reason, so is administrative liability
separate and distinct from penal liability. Hence, probation only affects the criminal aspect of the case, not
its administrative dimension." Samalio v. Court of Appeals, G.R. No. 140079, 31 March 2005, 454 SCRA
462, 475.
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 198554 July 30, 2012
MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), Petitioner,

vs.
THE EXECUTIVE SECRETARY, representing the OFFICE OF THE PRESIDENT; THE SECRETARY OF
NATIONAL DEFENSE VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
GEN. EDUARDO SL. OBAN, JR., and LT. GEN. GAUDENCIO S. PANGILINAN, AFP (RET.), DIRECTOR,
BUREAU OF CORRECTIONS, Respondents.
DECISION
PERALTA, J.:
For resolution of this Court is the Petition for Certiorari dated September 29, 2011 under Rule 65, Section 1 of the
Revised Rules of Civil Procedure which seeks to annul and set aside the Confirmation of Sentence dated
September 9, 2011, promulgated by the Office of the President.
The facts, as culled from the records, are the following:
On October 13, 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col. Henry A.
Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to Quarters1 containing the following:
1. Pursuant to Article of War 70 and the directive of the Acting Chief of Staff, AFP to the undersigned dtd 12
October 2004, you are hereby placed under Restriction to Quarters under guard pending investigation of
your case.
2. You are further advised that you are not allowed to leave your quarters without the expressed permission
from the Acting Chief of Staff, AFP.
3. In case you need immediate medical attention or required by the circumstance to be confined in a
hospital, you shall likewise be under guard.
Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court Martial NR 2 presided
by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the following violations allegedly committed by
petitioner:
CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT UNBECOMING AN OFFICER AND
GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE
PHILIPPINES, person subject to military law, did, on or about 16 March 2004, knowingly, wrongfully and unlawfully
fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net Worth for the
year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the
following: cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the
amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received from AFPSLAI from
June 2003 to December 2003 in the amount of one million three hundred sixty-five thousand pesos (P1,365,000.00);
dollar peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal Bank,
Bank of Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor vehicles
registered under his and his wife’s names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota
Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134,
1997 Mitsubishi L-300 Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498,
conduct unbecoming an officer and gentleman.
fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net worth for the
year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the
following: his cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the
amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received form AFPSLAI in June
2002 and December 2002 in the total amount of one million four hundred thirty-five thousand pesos (1,435,000.00),
dollar and peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal
Bank, Bank of the Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor
vehicles registered under his and his wife’s names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-
843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate
Nr. FEC-134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4
Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman.
PHILIPPINES, person subject to military law, did, while in the active military service of the Armed Forces of the
Philippines, knowingly, wrongfully and unlawfully violate his solemn oath as a military officer to uphold the
Constitution and serve the people with utmost loyalty by acquiring and holding the status of an immigrant/permanent
residence of the United
States of America in violation of the State policy governing public officers, thereby causing dishonor and disrespect
to the military professional and seriously compromises his position as an officer and exhibits him as morally
unworthy to remain in the honorable profession of arms.
CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT PREJUDICIAL TO GOOD ORDER AND
MILITARY DISCIPLINE).
make untruthful statements under oath of his true assets in his Statement of Assets and Liabilities and Net worth for
the year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct
prejudicial to good order and military discipline.
SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE
make untruthful statements under oath of his true assts in his Statement of Assets and Liabilities and Net worth for
the year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct
prejudicial to good order and military discipline.
Petitioner, upon arraignment on November 16, 2004, pleaded not guilty on all the charges.
The Office of the Chief of Staff, through a Memorandum2 dated November 18, 2004, directed the transfer of
confinement of petitioner from his quarters at Camp General Emilio Aguinaldo to the ISAFP Detention Center. On
the same day, petitioner, having reached the age of fifty-six (56), compulsorily retired from military service after
availing of the provisions of Presidential Decree (P.D.) No. 1650,3 amending Sections 3 and 5 of P.D. 1638, which
establishes a system of retirement for military personnel of the Armed Forces of the Philippines.
Pursuant to a Resolution4 dated June 1, 2005 of the Second Division of the Sandiganbayan, petitioner was
transferred from the ISAFP Detention Center to the Camp Crame Custodial Detention Center.
After trial, at the Special General Court Martial No. 2, on December 2, 2005, the findings or the After-Trial Report5 of
the same court was read to the petitioner. The report contains the following verdict and sentence:
MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed session upon secret written ballot 2/3 of all the
members present at the time the voting was taken concurring the following findings. Finds you:
On Specification 1 of Charge 1 – Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso
deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters
Bank and Planters Development Bank.
On Specification 2 of Charge 1 – Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso
deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters
Bank and Planters Development Bank.
On Specification 3 of Charge 1 – Guilty
And again in closed session upon secret written ballot 2/3 all the members are present at the time the votes was
taken concurrently sentences you to be dishonorably [discharged] from the service, to forfeit all pay and allowances
due and to become due and to be confined at hard labor at such place the reviewing authority may direct for a
period of two (2) years. So ordered. (Emphases supplied)
Afterwards, in a document6 dated March 27, 2006, the Staff Judge Advocate stated the following recommended
action:
IV. RECOMMENDED ACTION:
The court, after evaluating the evidence, found accused: GUILTY on Charge 1, GUILTY on Specification 1 on
Charge 1 – except the words dollar deposits with Land Bank of the Philippines, dollar and peso deposits with Allied
Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's Bank
and Planter's Development Bank; GUILTY on Charge 1, Specification 2 except the words dollar deposits with Land
Bank of the Philippines, dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank,
Bank of the Philippine Islands, United Coconut Planters Bank and Planter's Development Bank; GUILTY on
Specification 3 of Charge 1; GUILTY on Charge 2 and all its specifications. The sentence imposed by the Special
GCM is to be dishonorably discharged from the service, to forfeit all pay and allowances due and to become due;
and to be confined at hard labor at such place the reviewing authority may direct for a period of two (2) years. As it
is, the sentence is proper and legal. Recommend that the sentence be approved. The PNP custodial facility in Camp
Crame, Quezon City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall
be credited in his favor and deducted from the two (2) years to which the accused was sentenced. Thus,
confinement will expire on 18 October 2006. Considering that the period left not served is less than one (1) year,
confinement at the National Penitentiary is no longer appropriate.
4. To carry this recommendation into effect, a draft "ACTION OF THE REVIEWING AUTHORITY" is hereto
attached.
In an undated document,7 the AFP Board of Military Review recommended the following action:
8. RECOMMENDED ACTION:
A. Only so much of the sentence as provides for the mandatory penalty of dismissal from the military service
and forfeiture of pay and allowances due and to become due for the offenses of violation of AW 96 (Conduct
Unbecoming an Officer and a Gentleman) and for violation of AW 97 (Conduct Prejudicial to Good Order
and Military Discipline) be imposed upon the Accused.
B. The records of the instant case should be forwarded to the President thru the Chief of Staff and the
Secretary of National Defense, for final review pursuant to AW 47, the Accused herein being a General
Officer whose case needs confirmation by the President.
C. To effectuate the foregoing, attached for CSAFP's signature/approval is a proposed 1st
Indorsement to the President, thru the Secretary of National Defense, recommending approval of the attached
prepared "ACTION OF THE PRESIDENT."
After six (6) years and two (2) months of preventive confinement, on December 16, 2010, petitioner was released
from the Camp Crame Detention Center.8
The Office of the President, or the President as Commander-in-Chief of the AFP and acting as the Confirming
Authority under the Articles of War, confirmed the sentence imposed by the Court Martial against petitioner. The
Confirmation of Sentence,9 reads in part:
NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as Commander-in-Chief of the Armed Forces of the
Philippines, do hereby confirm the sentence imposed by the Court Martial in the case of People of the Philippines
versus Major General Carlos Flores Garcia AFP:
a) To be dishonorable discharged from the service;
b) To forfeit all pay and allowances due and to become due; and
c) To be confined for a period of two (2) years in a penitentiary.
FURTHER, pursuant to the 48th and 49th Articles of War, the sentence on Major General Carlos Flores Garcia AFP
shall not be remitted/mitigated by any previous confinement. Major General Carlos Flores Garcia AFP shall serve
the foregoing sentence effective on this date.
DONE, in the City of Manila, this 9th day of September, in the year of our Lord, Two Thousand and Eleven.
Consequently, on September 15, 2011, respondent Secretary of National Defense Voltaire T. Gazmin, issued a
Memorandum10 to the Chief of Staff, AFP for strict implementation, the Confirmation of Sentence in the Court Martial
Case of People of the Philippines Versus Major General Carlos Flores Garcia AFP.
On September 16, 2011, petitioner was arrested and detained, and continues to be detained at the National
Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City.11
Aggrieved, petitioner filed with this Court the present petition for certiorari and petition for habeas corpus,
alternatively. However, this Court, in its Resolution12 dated October 10, 2011, denied the petition for habeas corpus.
Petitioner filed a motion for reconsideration13 dated November 15, 2011, but was denied14 by this Court on December
12, 2011.
Petitioner enumerates the following grounds to support his petition:
GROUNDS
A.
THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED IPSO FACTO UPON THE RETIREMENT OF
PETITIONER, FOR WHICH REASON THE OFFICE OF THE PRESIDENT ACTED WITHOUT JURISDICTION IN
ISSUING THE CONFIRMATION OF SENTENCE, AND PETITIONER'S ARREST AND CONFINEMENT
PURSUANT THERETO IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.
B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER REMAINED AMENABLE TO COURT
MARTIAL JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE PRESIDENT ACTED WITH GRAVE
ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF TWO (2) YEARS CONFINEMENT WITHOUT ANY
LEGAL BASIS, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL, THUS
WARRANTING THE WRIT OF HABEAS CORPUS.
C.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE PENALTY OF TWO (2) YEARS CONFINEMENT
MAY BE IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL AND FORFEITURE, THE SENTENCE
HAD BEEN FULLY SERVED IN VIEW OF PETITIONER'S PREVENTIVE CONFINEMENT WHICH EXCEEDED
THE 2-YEAR SENTENCE, AND THE OFFICE OF THE PRESIDENT HAS NO AUTHORITY TO REPUDIATE SAID
SERVICE OF SENTENCE, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT DESPITE FULL
SERVICE OF SENTENCE IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.15
In view of the earlier resolution of this Court denying petitioner's petition for habeas corpus, the above grounds are
rendered moot and academic. Thus, the only issue in this petition for certiorari under Rule 65 of the Revised Rules
of Civil Procedure, which was properly filed with this
Court, is whether the Office of the President acted with grave abuse of discretion, amounting to lack or excess of
jurisdiction, in issuing the Confirmation of Sentence dated September 9, 2011.
In its Comment16 dated October 27, 2011, the Office of the Solicitor General (OSG) lists the following counter-
arguments:
I.
PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT VIOLATES THE DOCTRINE OF

HIERARCHY OF COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY DISMISSED.
II.
THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER PETITIONER DESPITE HIS RETIREMENT
DURING THE PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE SAID TRIBUNAL'S
JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO PETITIONER'S RETIREMENT.
III.
THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT DIRECTING PETITIONER TO BE

CONFINED FOR TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C. A. NO. 408 AND EXECUTIVE
ORDER NO. 178, PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL AUTHORITY AS THE COMMANDER-
IN-CHIEF OF THE AFP.
IV.
PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE WAS NOT VIOLATED IN THIS CASE.
V.
THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS CONFINEMENT ON PETITIONER BY THE GCM, AND
AS CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS VALID.
VI.
ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN ISSUING
AND IMPLEMENTING THE CONFIRMATION OF SENTENCE.17
Petitioner, in his Reply18 dated January 20, 2012, disagreed with the arguments raised by the OSG due to the
following:
(A)
THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN ACT BY THE PRESIDENT, AS THE
COMMANDER-IN-CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE BRANCH. THEREFORE, THE
HONORABLE COURT IS THE ONLY APPROPRIATE COURT WHERE HIS ACT MAY BE IMPUGNED, AND NOT
IN THE LOWER COURTS, I.E., REGIONAL TRIAL COURT ("RTC") OR THE COURT OF APPEALS ("CA"), AS
THE OSG ERRONEOUSLY POSTULATES.
(B)
ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED JURISDICTION "OVER THE PERSON" OF
PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED FORCES OF THE PHILIPPINES ('AFP"),
HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND OF THE OSG, SEVERED HIS "JURAL
RELATIONSHIP" WITH THE MILITARY, THEREBY PLACING HIM BEYOND THE SUBSTANTIVE REACH OF
THE AFP'S COURT MARTIAL JURISDICTION.
(C)
UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S COURT MARTIAL SENTENCE OF TWO (2)
YEARS IN CARCERATION HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD ALREADY SUFFERED
PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE THE SENTENCE COULD BE
CONFIRMED, WHICH MEANS THAT THE PRESIDENT HAD NO MORE JURISDICTION WHEN HE CONFIRMED
IT, THEREBY RENDERING THE "CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND,
CONSEQUENTLY, INVALIDATING THE OSG'S POSITION THAT THE PRESIDENT STILL HAD JURISDICTION
WHEN HE CONFIRMED THE SENTENCE.19
Petitioner raises the issue of the jurisdiction of the General Court Martial to try his case. According to him, the said
jurisdiction ceased ipso facto upon his compulsory retirement. Thus, he insists that the Office of the President had
acted without jurisdiction in issuing the confirmation of his sentence.
This Court finds the above argument bereft of merit.
Article 2 of the Articles of War20 circumscribes the jurisdiction of military law over persons subject thereto, to wit:
Art. 2. Persons Subject to Military Law. - The following persons are subject to these articles and shall be understood
as included in the term "any person subject to military law" or "persons subject to military law," whenever used in
these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the Philippine
Constabulary; all members of the reserve force, from the dates of their call to active duty and while on such
active duty; all trainees undergoing military instructions; and all other persons lawfully called, drafted, or
ordered into, or to duty or for training in, the said service, from the dates they are required by the terms of
the call, draft, or order to obey the same;
(b) Cadets, flying cadets, and probationary second lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Armed Forces of the
Philippines in the field in time of war or when martial law is declared though not otherwise subject to these
articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).
It is indisputable that petitioner was an officer in the active service of the AFP in March 2003 and 2004, when the
alleged violations were committed. The charges were filed on October 27, 2004 and he was arraigned on November
16, 2004. Clearly, from the time the violations were committed until the time petitioner was arraigned, the General
Court Martial had jurisdiction over the case. Well-settled is the rule that jurisdiction once acquired is not lost upon
the instance of the parties but continues until the case is terminated.21 Therefore, petitioner's retirement on
November 18, 2004 did not divest the General Court Martial of its jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani,
et al. v. Lt./Gen. Generoso Senga, et al.,22 this Court ruled that:
This point was settled against Gen. Gudani's position in Abadilla v. Ramos, where the Court declared that an officer
whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military
authorities when military justice proceedings were initiated against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This
jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against
Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties
but continues until the case is terminated.
Citing Colonel Winthrop's treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the
contention of the petitioners, viz. —
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in regard to
military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the
termination of their legal period of service, they may be brought to trial by court-martial after that date, their
discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was
committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender
should go unpunished. It is held therefore that if before the day on which his service legally terminates and his right
to a discharge is complete, proceedings with a view to trial are commenced against him — as by arrest or the
service of charges, — the military jurisdiction will fully attach and once attached may be continued by a trial by court-
martial ordered and held after the end of the term of the enlistment of the accused x x x
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the
initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no
reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No.
1638, as amended, "an officer or enlisted man carried in the retired list of the Armed Forces of the Philippines shall
be subject to the Articles of War x x x" To this citation, petitioners do not offer any response, and in fact have
excluded the matter of Gen. Gudani's retirement as an issue in their subsequent memorandum.23
It is also apt to mention that under Executive Order No. 178, or the Manual for Courts-Martial, AFP, the jurisdiction
of courts-martial over officers, cadets, soldiers, and other military personnel in the event of discharge or other
separation from the service, and the exceptions thereto, is defined thus:
10. COURT-MARTIAL – Jurisdiction in general – Termination – General Rules – The general rule is that court-
martial jurisdiction over officers, cadets, soldiers and others in the military service of the Philippines ceases on
discharge or other separation from such service, and that jurisdiction as to any offense committed during a period of
service thus terminated is not revived by a reentry into the military service.
Exceptions – To this general rule there are, however, some exceptions, among them the following:
xxxx
In certain case, where the person's discharge or other separation does not interrupt his status as a person
belonging to the general category of persons subject to military law, court-martial jurisdiction does not terminate.
Thus, where an officer holding a reserve commission is discharged from said commission by reason of acceptance
of a commission in the Regular Force, there being no interval between services under the respective commissions,
there is no terminating of the officer's military status, but merely the accomplishment of a change in his status from
that of a reserve to that of a regular officer, and that court-martial jurisdiction to try him for an offense (striking
enlisted men for example) committed prior to the discharge is not terminated by the discharge. So also, where a
dishonorable discharged general prisoner is tried for an offense committed while a soldier and prior to his
dishonorable discharge, such discharge does not terminate his amenability to trial for the offense. (Emphases
supplied.)
Petitioner also asserts that the General Court Martial's continuing jurisdiction over him despite his retirement holds
true only if the charge against him involves fraud, embezzlement or misappropriation of public funds citing this
Court's ruling in De la Paz v. Alcaraz,et al.24 and Martin v. Ve r.25 However, this is not true. The OSG is correct in
stating that in De la Paz,26 military jurisdiction over the officer who reverted to inactive status was sustained by this
Court because the violation involved misappropriation of public funds committed while he was still in the active
military service, while in Martin,27 military jurisdiction was affirmed because the violation pertained to illegal disposal
of military property. Both cited cases centered on the nature of the offenses committed by the military personnel
involved, justifying the exercise of jurisdiction by the courts-martial. On the other hand, in the present case, the
continuing military jurisdiction is based on prior attachment of jurisdiction on the military court before petitioner's
compulsory retirement. This continuing jurisdiction is provided under Section 1 of P.D. 1850,28 as amended, thus:
Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. - Any
provision of law to the contrary notwithstanding – (a) uniformed members of the Integrated National Police who
commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial
pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of
War; (b) all persons subject to military law under article 2 of the aforecited Articles of War who commit any crime or
offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided,
that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial
authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act
Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated
National Police personnel can no longer be exercised by virtue of their separation from the active service without
jurisdiction having duly attached beforehand unless otherwise provided by law: Provided further, that the President
may, in the interest of justice, order or direct, at any time before arraignment, that a particular case be tried by the
appropriate civil court. (Emphasis supplied.)
Having established the jurisdiction of the General Court Martial over the case and the person of the petitioner, the
President, as Commander-in-Chief, therefore acquired the jurisdiction to confirm petitioner's sentence as mandated
under Article 47 of the Articles of War, which states:
Article 47. Confirmation – When Required. - In addition to the approval required by article forty-five, confirmation by
the President is required in the following cases before the sentence of a court-martial is carried into execution,
namely:
(a) Any sentence respecting a general officer;
(b) Any sentence extending to the dismissal of an officer except that in time of war a sentence extending to
the dismissal of an officer below the grade of brigadier general may be carried into execution upon
confirmation by the commanding general of the Army in the field;
(c) Any sentence extending to the suspension or dismissal of a cadet, probationary second lieutenant; and
(d) Any sentence of death, except in the case of persons convicted in time of war, of murder, mutiny,
desertion, or as spies, and in such excepted cases of sentence of death may be carried into execution,
subject to the provisions of Article 50, upon confirmation by the commanding general of the Army in the said
field.
When the authority competent to confirm the sentence has already acted as the approving authority no additional
confirmation by him is necessary. (As amended by Republic Act No. 242). (Emphasis supplied.)
In connection therewith, petitioner argues that the confirmation issued by the Office of the President directing him to
be confined for two (2) years in the penitentiary had already been fully served in view of his preventive confinement
which had exceeded two (2) years. Therefore, according to him, the Office of the President no longer has the
authority to order his confinement in a penitentiary. On the other hand, the OSG opines that petitioner cannot legally
demand the deduction of his preventive confinement in the service of his imposed two-year confinement in a
penitentiary, because unlike our Revised Penal Code29 which specifically mandates that the period of preventive
imprisonment of the accused shall be deducted from the term of his imprisonment, the Articles of War and/or the
Manual for Courts-Martial do not provide for the same deduction in the execution of the sentence imposed by the
General Court Martial as confirmed by the President in appropriate cases.
On the above matter, this Court finds the argument raised by the OSG unmeritorious and finds logic in the assertion
of petitioner that Article 29 of the Revised Penal Code can be made applicable in the present case.
The OSG maintains that military commissions or tribunals are not courts within the Philippine judicial system, citing
Olaguer, et al. v. Military Commission No. 4,30 hence, they are not expected to apply criminal law concepts in their
implementation and execution of decisions involving the discipline of military personnel. This is misleading. In
Olaguer, the courts referred to were military commissions created under martial law during the term of former
President Ferdinand Marcos and was declared unconstitutional by this Court, while in the present case, the General
Court Martial which tried it, was created under Commonwealth Act No. 408, as amended, and remains a valid entity.
In Marcos v. Chief of Staff, Armed Forces of the Philippines,31 this Court ruled that a court-martial case is a criminal
case and the General Court Martial is a "court" akin to any other courts. In the same case, this Court clarified as to
what constitutes the words "any court" used in Section 1732 of the 1935 Constitution prohibiting members of
Congress to appear as counsel in any criminal case in which an officer or employee of the Government is accused
of an offense committed in relation to his office. This Court held:
We are of the opinion and therefore hold that it is applicable, because the words "any court" includes the General
Court-Martial, and a court-martial case is a criminal case within the meaning of the above quoted provisions of our
Constitution.
It is obvious that the words "any court," used in prohibiting members of Congress to appear as counsel "in any
criminal case in which an officer or employee of the Government is accused of an offense committed in relation to
his office," refers, not only to a civil, but also to a military court or a Court-Martial. Because, in construing a
Constitution, "it must be taken as established that where words are used which have both a restricted and a general
meaning, the general must prevail over the restricted unless the nature of the subject matter of the context clearly
indicates that the limited sense is intended." (11 American Jurisprudence, pp. 680-682).
In the case of Ramon Ruffy vs. Chief of Staff of the Philippine Army,* 43 Off. Gaz., 855, we did not hold that the
word "court" in general used in our Constitution does not include a Court-Martial; what we held is that the words
"inferior courts" used in connection with the appellate jurisdiction of the Supreme Court to "review on appeal
certiorari or writ of error, as the law or rules of court may provide, final judgments of inferior courts in all criminal
cases in which the penalty imposed is death or life imprisonment," as provided for in section 2, Article VIII, of the
Constitution, do not refer to Courts-Martial or Military Courts.
Winthrop's Military Law and Precedents, quoted by the petitioners and by this Court in the case of Ramon Ruffy et al
vs. Chief of Staff of the Philippine Army, supra, has to say in this connection the following:
Notwithstanding that the court-martial is only an instrumentality of the executive power having no relation or
connection, in law, with the judicial establishments of the country, it is yet, so far as it is a court at all, and within its
field of action, as fully a court of law and justice as is any civil tribunal. As a court of law, it is bound, like any court,
by the fundamental principles of law, and, in the absence of special provision of the subject in the military code, it
observes in general the rules of evidence as adopted in the common-law courts. As a court of justice, it is required
by the terms of its statutory oath, (art. 84.) to adjudicate between the U.S. and the accused "without partiality, favor,
or affection," and according, not only to the laws and customs of the service, but to its "conscience," i.e. its sense of
substantial right and justice unaffected by technicalities. In the words of the Attorney General, court-martial are thus,
"in the strictest sense courts of justice. (Winthrop's Military Law and Precedents, Vol. 1 and 2, 2nd Ed., p. 54.)
In re Bogart, 3 Fed. Cas., 796, 801, citing 6 Op. Attys. Gen. 425, with approval, the court said:
In the language of Attorney General Cushing, a court-martial is a lawful tribunal existing by the same authority that
any other exists by, and the law military is a branch of law as valid as any other, and it differs from the general law of
the land in authority only in this: that it applies to officers and soldiers of the army but not to other members of the
body politic, and that it is limited to breaches of military duty.
And in re Davison, 21 F. 618, 620, it was held:
That court-martial are lawful tribunals existing by the same authority as civil courts of the United States, have the
same plenary jurisdiction in offenses by the law military as the latter courts have in controversies within their
cognizance, and in their special and more limited sphere are entitled to as untrammelled an exercise of their
powers.
And lastly, American Jurisprudence says:
SEC. 99. Representation by Counsel. — It is the general rule that one accused of the crime has the right to be
represented before the court by counsel, and this is expressly so declared by the statues controlling the procedure
in court-martial. It has been held that a constitutional provision extending that right to one accused in any trial in any
court whatever applies to a court-martial and gives the accused the undeniable right to defend by counsel, and that
a court-martial has no power to refuse an attorney the right to appear before it if he is properly licensed to practice in
the courts of the state. (Citing the case of State ex rel Huffaker vs. Crosby, 24 Nev. 115, 50 Pac. 127; 36 American
Jurisprudence 253)
The fact that a judgment of conviction, not of acquittal, rendered by a court-martial must be approved by the
reviewing authority before it can be executed (Article of War 46), does not change or affect the character of a court-
martial as a court. A judgment of the Court of First Instance imposing death penalty must also be approved by the
Supreme Court before it can be executed.
That court-martial cases are criminal cases within the meaning of Section 17, Article VI, of the Constitution is also
evident, because the crimes and misdemeanors forbidden or punished by the Articles of War are offenses against
the Republic of the Philippines. According to section 1,
Rule 106, of the Rules of Court, a criminal action or case is one which involves a wrong or injury done to the
Republic, for the punishment of which the offender is prosecuted in the name of the People of the Philippines; and
pursuant to Article of War 17, "the trial advocate of a general or special court-martial shall prosecute (the accused)
in the name of the People of the Philippines."
Winthtrop, in his well known work "Military Law and Precedents' says the following:
In regard to the class of courts to which it belongs, it is lastly to be noted that the court-martial is strictly a criminal
court. It has no civil jurisdiction whatever; cannot enforce a contract, collect a debt, or award damages in favor of an
individual. . . . Its judgment is a criminal sentence not a civil verdict; its proper function is to award punishment upon
the ascertainment of guilt. (Winthrop's Military Law and Precedents, Vols. 1 & 2, 2nd Ed., p. 55.)
In N. Y. it was held that the term "criminal case," used in the clause, must be allowed some meaning, and none can
be conceived, other than a prosecution for a criminal offense. Ex parte Carter. 66 S. W. 540, 544, 166 No. 604, 57
L.R.A. 654, quoting People vs. Kelly, 24 N.Y. 74; Counselman vs. Hitchcock, 12 S. Ct. 195; 142 U.S. 547, L. Ed.
111o. (Words and Phrases, Vol. 10, p. 485.)
Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and not an
administrative case, and therefore it would be, under certain conditions, a bar to another prosecution of the
defendant for the same offense, because the latter would place the accused in jeopardy, is shown by the decision of
the Supreme Court of the United States in the case of Grafton vs. United States, 206 U. S. 333; 51 Law. Ed., 1088,
1092, in which the following was held:
If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded the finality and
conclusiveness as to the issues involved which attend the judgments of a civil court in a case of which it may legally
take cognizance; x x x and restricting our decision to the above question of double jeopardy, we judge that,
consistently with the above act of 1902, and for the reasons stated, the plaintiff in error, a soldier in the Army, having
been acquitted of the crime of homicide, alleged to have been committed by him in the Philippines, by a military
court of competent jurisdiction, proceeding under the authority of the United States, could not be subsequently tried
for the same offense in a civil court exercising authority in that territory.33 (Emphasis supplied.)
Hence, as extensively discussed above, the General Court Martial is a court within the strictest sense of the word
and acts as a criminal court. On that premise, certain provisions of the Revised Penal Code, insofar as those that
are not provided in the Articles of War and the Manual for Courts-Martial, can be supplementary. Under Article 10 of
the Revised Penal Code:
Art. 10. Offenses not subject to the provisions of this Code. - Offenses which are or in the future may be punishable
under special laws are not subject to the provisions of this Code. This Code shall be supplementary to such laws,
unless the latter should specially provide the contrary.
A special law is defined as a penal law which punishes acts not defined and penalized by the Revised Penal
Code.34 In the present case, petitioner was charged with and convicted of Conduct Unbecoming an Officer and
Gentleman (96th Article of War) and Violation of the 97th Article of War, or Conduct Prejudicial to Good Order and
Military Discipline, both of which are not defined and penalized under the Revised Penal Code. The corresponding
penalty imposed by the General Court Martial, which is two (2) years of confinement at hard labor is penal in nature.
Therefore, absent any provision as to the application of a criminal concept in the implementation and execution of
the General Court Martial's decision, the provisions of the Revised Penal Code, specifically Article 29 should be
applied. In fact, the deduction of petitioner's period of confinement to his sentence has been recommended in the
Staff Judge Advocate Review, thus:
x x x Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon City, is the
appropriate place of confinement. The period of confinement from 18 October 2004 shall be credited in his favor and
deducted from the two (2) years to which the accused was sentenced. Thus, confinement will expire on 18 October
2006. Considering that the period left not served is less than one (1) year, confinement at the National Penitentiary
is no longer appropriate.35 (Emphasis supplied.)
The above was reiterated in the Action of the Reviewing Authority, thus:
In the foregoing General Court-Martial case of People of the Philippines versus MGEN. CARLOS F. GARCIA 0-
5820 AFP (now Retired), the verdict of GUILTY is hereby approved.
The sentence to be dishonorably discharged from the service; to forfeit all pay and allowances due and to become
due; and to be confined at hard labor at such place as the reviewing authority may direct for a period of two (2)
years is also approved.
Considering that the Accused has been in confinement since 18 October 2004, the entire period of his confinement
since 18 October 2004 will be credited in his favor. Consequently, his two (2) year sentence of confinement will
expire on 18 October 2006.
The proper place of confinement during the remaining unserved portion of his sentence is an official military
detention facility. However, the Accused is presently undergoing trial before the Sandiganbayan which has directed
1âw phi 1
that custody over him be turned over to the civilian authority and that he be confined in a civilian jail or detention
facility pending the disposition of the case(s) before said Court. For this reason, the Accused shall remain confined
at the PNP's detention facility in Camp Crame, Quezon City. The Armed Forces of the Philippines defers to the
civilian authority on this matter.
Should the Accused be released from confinement upon lawful orders by the Sandiganbayan before the expiration
of his sentence adjudged by the military court, the Provost Marshal General shall immediately take custody over the
Accused, who shall be transferred to and serve the remaining unserved portion thereof at the ISAFP detention
facility in Camp General Emilio Aguinaldo, Quezon City.36 (Emphasis supplied.)
Nevertheless, the application of Article 29 of the Revised Penal Code in the Articles of War is in accordance with the
Equal Protection Clause of the 1987 Constitution. According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed.37 It requires public bodies and institutions to treat similarly situated individuals in a similar
manner.38 The purpose of the equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by its improper
execution through the state's duly-constituted authorities.39 In other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw distinctions between individuals solely on differences
that are irrelevant to a legitimate governmental objective.40 It, however, does not require the universal application of
the laws to all persons or things without distinction. What it simply requires is equality among equals as determined
according to a valid classification. Indeed, the equal protection clause permits classification. Such classification,
however, to be valid must pass the test of reasonableness. The test has four requisites: (1) the classification rests
on substantial distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing conditions only;
and (4) it applies equally to all members of the same class.41 "Superficial differences do not make for a valid
classification."42 In the present case, petitioner belongs to the class of those who have been convicted by any court,
thus, he is entitled to the rights accorded to them. Clearly, there is no substantial distinction between those who are
convicted of offenses which are criminal in nature under military courts and the civil courts. Furthermore, following
the same reasoning, petitioner is also entitled to the basic and time-honored principle that penal statutes are
construed strictly against the State and liberally in favor of the accused.43 It must be remembered that the provisions
of the Articles of War which the petitioner violated are penal in nature.
The OSG is correct when it argued that the power to confirm a sentence of the President, as Commander-in-Chief,
includes the power to approve or disapprove the entire or any part of the sentence given by the court martial. As
provided in Article 48 of the Articles of War:
Article 48. Power Incident to Power to Confirm. - The power to confirm the sentence of a court-martial shall be held
to include:
(a) The power to confirm or disapprove a finding, and to confirm so much only of a finding of guilty of a
particular offense as involves a finding of guilty of a lesser included offense when, in the opinion of the
authority having power to confirm, the evidence of record requires a finding of only the lesser degree of guilt;
(b) The power to confirm or disapprove the whole or any part of the sentence; and
(c) The power to remand a case for rehearing, under the provisions of Article 50. (Emphasis supplied.)
In addition, the President also has the power to mitigate or remit a sentence. Under Article 49 of the Articles of War:
Article 49. Mitigation or Remission of Sentence. - The power to order the execution of the sentence adjudged by a
court-martial shall be held to include, inter alia, the power to mitigate or remit the whole or any part of the sentence.
Any unexpected portion of a sentence adjudged by a court-martial may be mitigated or remitted by the military
authority competent to appoint, for the command, exclusive of penitentiaries and Disciplinary Barracks of the Armed
Forces of the Philippines or Philippine Constabulary, in which the person under sentence is held, a court of the kind
that imposed the sentence, and the same power may be exercised by superior military authority; but no sentence
approved or confirmed by the President shall be remitted or mitigated by any other authority, and no approved
sentence of loss of files by an officer shall be remitted or mitigated by any authority inferior to the President, except
as provided in Article 52.
When empowered by the President to do so, the commanding general of the Army in the field or the area
commander may approve or confirm and commute (but not approve or confirm without commuting), mitigate, or
remit and then order executed as commuted, mitigated, or remitted any sentence which under those Articles
requires the confirmation of the President before the same may be executed. (As amended by Republic Act No.
242).
Thus, the power of the President to confirm, mitigate and remit a sentence of erring military personnel is a clear
recognition of the superiority of civilian authority over the military. However, although the law (Articles of War) which
conferred those powers to the President is silent as to the deduction of the period of preventive confinement to the
penalty imposed, as discussed earlier, such is also the right of an accused provided for by Article 29 of the RPC.
As to petitioner's contention that his right to a speedy disposition of his case was violated, this Court finds the same
to be without merit.
No less than our Constitution guarantees the right not just to a speedy trial but to the speedy disposition of
cases.44 However, it needs to be underscored that speedy disposition is a relative and flexible concept. A mere
mathematical reckoning of the time involved is not sufficient. Particular regard must be taken of the facts and
circumstances peculiar to each case.45 In determining whether or not the right to the speedy disposition of cases has
been violated, this Court has laid down the following guidelines: (1) the length of the delay; (2) the reasons for such
delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay.46
In this case, there was no allegation, whatsoever of any delay during the trial. What is being questioned by petitioner
is the delay in the confirmation of sentence by the President. Basically, the case has already been decided by the
General Court Martial and has also been reviewed by the proper reviewing authorities without any delay. The only
thing missing then was the confirmation of sentence by the President. The records do not show that, in those six (6)
years from the time the decision of the General Court Martial was promulgated until the sentence was finally
confirmed by the President, petitioner took any positive action to assert his right to a speedy disposition of his case.
This is akin to what happened in Guerrero v. Court of Appeals,47 where, in spite of the lapse of more than ten years
of delay, the Court still held that the petitioner could not rightfully complain of delay violative of his right to speedy
trial or disposition of his case, since he was part of the reason for the failure of his case to move on towards its
ultimate resolution. The Court held, inter alia:
In the case before us, the petitioner merely sat and waited after the case was submitted for resolution in 1979. It
was only in 1989 when the case below was reraffled from the RTC of Caloocan City to the RTC of Navotas-Malabon
and only after respondent trial judge of the latter court ordered on March 14, 1990 the parties to follow-up and
complete the transcript of stenographic notes that matters started to get moving towards a resolution of the case.
More importantly, it was only after the new trial judge reset the retaking of the testimonies to November 9, 1990
because of petitioner's absence during the original setting on October 24, 1990 that the accused suddenly became
zealous of safeguarding his right to speedy trial and disposition.
xxxx
In the present case, there is no question that petitioner raised the violation against his own right to speedy
disposition only when the respondent trial judge reset the case for rehearing. It is fair to assume that he would have
just continued to sleep on his right − a situation amounting to laches − had the respondent judge not taken the
initiative of determining the non-completion of the records and of ordering the remedy precisely so he could dispose
of the case. The matter could have taken a different dimension if during all those ten years between 1979 when
accused filed his memorandum and 1989 when the case was reraffled, the accused showed signs of asserting his
right which was granted him in 1987 when the new constitution took effect, or at least made some overt act (like a
motion for early disposition or a motion to compel the stenographer to transcribe stenographic notes) that he was
not waiving it. As it is, his silence would have to be interpreted as a waiver of such right.
While this Court recognizes the right to speedy disposition quite distinctly from the right to a speedy trial, and
although this Court has always zealously espoused protection from oppressive and vexatious delays not attributable
to the party involved, at the same time, we hold that a party's individual rights should not work against and preclude
the people's equally important right to public justice. In the instant case, three people died as a result of the crash of
the airplane that the accused was flying. It appears to us that the delay in the disposition of the case prejudiced not
just the accused but the people as well. Since the accused has completely failed to assert his right seasonably and
inasmuch as the respondent judge was not in a position to dispose of the case on the merits due to the absence of
factual basis, we hold it proper and equitable to give the parties fair opportunity to obtain (and the court to dispense)
substantial justice in the premises.48
Time runs against the slothful and those who neglect their rights.49 In fact, the delay in the confirmation of his
sentence was to his own advantage, because without the confirmation from the President, his sentence cannot be
served.
Anent petitioner's other arguments, the same are already rendered moot and academic due to the above
discussions. 1âw phi 1
Grave abuse of discretion means such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse of discretion, as when the power is
exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and must be so patent and
so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.50 Thus, applying, the earlier disquisitions, this Court finds that the Office of the President
did not commit any grave abuse of discretion in issuing the Confirmation of Sentence in question.
WHEREFORE, the Petition for Certiorari dated September 29, 2011 of Major General Carlos F. Garcia, AFP (Ret.)
is hereby DISMISSED. However, applying the provisions of Article 29 of the Revised Penal Code, the time within
which the petitioner was under preventive confinement should be credited to the sentence confirmed by the Office of
the President, subject to the conditions set forth by the same law.
SO ORDERED.
DIOSDADO M. PERALTA
Associate justice
WE CONCUR:

Associate justice
Chairperson
ROBERTO A. ABAD MARIA LOURDES P.A. SERENO*

ESTELA M. PERLAS-BERNABE
Associate justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

Associate justice
Chairperson, Third Division
CERTIFICATION
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
* Designated Acting Member in lieu of Associate Justice Jose Catral Mendoza, per Special Order No. 1271
dated July 24, 2012.
1
Rollo, p. 73
2
Id. at 78.
3
Sec. 2. Section 5 of Presidential Decree No. 1638 is hereby amended to read as follows:
Sec. 5 (a). Upon attaining fifty-six (56) years of age or upon accumulation of thirty (30) years of
satisfactory active service, whichever is later, an officer or enlisted man shall be compulsorily retired;
Provided, That such officer or enlisted-man who shall have attained fifty-six (56) years of age with at
least twenty (20) years of active service shall be allowed to complete thirty (30) years of service but
not beyond his sixtieth (60th) birthday, Provided, however, That such military personnel compulsorily
retiring by age shall have at least twenty (20) years of active service: Provided, further, That the
compulsory retirement of an officer serving in a statutory position shall be deferred until completion
of the tour of duty prescribed by law; and, Provided, finally, That the active service of military
personnel may be extended by the President, if in his opinion, such continued military service is for
the good of the service. (Emphasis supplied.)
4
Rollo, pp. 80-81.
5
Id. at 82.
6
Staff Judge Advocate Review, id. at 83-98.
7
Rollo, pp. 102-114.
8
Order of Discharge dated December 16, 2010 by the Sandiganbayan Second Division, id. at 115.
9
Rollo, pp. 70-72. (Emphasis supplied.)
10
Id. at 116.
11
Id. at 23.
12
Id. at 122-123.
13
Id. at 215-238.
14
Id. at 239.
15
Id. at 23-25.
16
Id. at 124- 214.
17
Id. at 137-138.
18
Id. at 240-272.
19
Id. at 240-241.
20
Commonwealth Act No. 408, as amended.
21
Abadilla v. Ramos, No. L-79173, December 7, 1987, 156 SCRA 92, 102.
22
G.R. No. 170165, August 15, 2006, 498 SCRA 671.
23
Id. at 692-693. (Citations omitted)
24
99 Phil. 130 (1956)
25
G.R. No. L-62810, July 25, 1983, 123 SCRA 745.
26
Supra note 24.
27
Supra note 25.
PROVIDING FOR THE TRIAL BY COURTS-MARTIAL OF MEMBERS OF THE INTEGRATED NATIONAL

28
POLICE AND FURTHER DEFINING THE JURISDICTION OF COURTS-MARTIAL OVER MEMBERS OF

THE ARMED FORCES OF THE PHILIPPINES.
Art. 29. Period of preventive imprisonment deducted from term of imprisonment. - Offenders who have
29
undergone preventive imprisonment shall be credited in the service of their sentence consisting of
deprivation of liberty, with the full time during which they have undergone preventive imprisonment, if the
detention prisoner agrees voluntarily in writing to abide by the same disciplinary rules imposed upon
convicted prisoners, except in the following cases:
1. When they are recidivists or have been convicted previously twice or more times of any crime;
and
2. When upon being summoned for the execution of their sentence they have failed to surrender
voluntarily.
If the detention prisoner does not agree to abide by the same disciplinary rules imposed upon
convicted prisoners, he shall be credited in the service of his sentence with four-fifths of the time
during which he has undergone preventive imprisonment (As amended by Republic Act 6127, June
17, 1970).
Whenever an accused has undergone preventive imprisonment for a period equal to or more than
the possible maximum imprisonment of the offense charged to which he may be sentenced and his
case is not yet terminated, he shall be released immediately without prejudice to the continuation of
the trial thereof or the proceeding on appeal, if the same is under review. In case the maximum
penalty to which the accused may be sentenced is destierro, he shall be released after thirty (30)
days of preventive imprisonment (As amended by E.O. No. 214, July 10, 1988).
30
G.R. Nos. L-54558 and L-69882, May 22, 1987, 150 SCRA 144.
31
89 Phil, 246 (1951).
32
Sec. 17. No Senator or Member of the House of Representatives shall directly or indirectly be financially
interested in any contract with the Government or any subdivision or instrumentality thereof, or in any
franchise or special privilege granted by the Congress during his term of office. He shall not appear as
counsel before the Electoral Tribunals or before any court in any civil case wherein the Government or any
subdivision or instrumentality thereof is the adverse party, or in any criminal case wherein an officer or
employee of the Government is accused of an offense committed in relation to his office. x x x.
33
Marcos v. Chief of Staff, AFP, supra note 31, at 248-251.
34
See U.S. v. Serapio, 23 Phil. 584, 593 (1912).
35
Rollo. p. 98.
36
Rollo, p. 100.
Ichong v. Hernandez, 101 Phil. 1155 (1957); Sison, Jr. v. Ancheta, G.R. No. L-59431, July 25, 1984, 130
37
SCRA 654; Association of Small Landowners in the Philippines v. Secretary of Agrarian Reform, G.R. No.
7842, July 14, 1989, 175 SCRA 343, 375.
38
Guino v. Senkowski, 54 F 3d 1050 (2d. Cir. 1995), cited in Am. Jur. 2d, Vol. 16 (b), p. 302.
39
Edward Valves, Inc. v. Wake Country, 343 N.C. 426, cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
40
Lehr v. Robertson, 463 US 248, 103 cited in Am. Jur. 2d, Vol. 16 (b), p. 303.
41
Beltran v. Secretary of Health, 512 Phil. 560, 583 (2005).
42
Cruz, Constitutional Law, 2003 ed., p. 128.
People v. Temporada, G.R. No. 173473, December 17, 2008, 574 SCRA 258, 303, citing People v.
43
Ladjaalam, 395 Phil. 1, 35 (2000).
44
Constitution, Art. III, Sec. 16:
All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial
or administrative bodies.
Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008, 561 SCRA 135, 138-139, citing Binay v.
45
Sandiganbayan, G.R. Nos. 120681-83, October 1, 1999, 316 SCRA 65, 93.
Dela Peña v. Sandiganbayan, G.R. No. 144542, June 29, 2001, 360 SCRA 478, 485; Alvizo v.
46
Sandiganbayan, G.R. No. 101689, March 17, 1993, 220 SCRA 55, 63-64.
47
G.R. No. 107211, June 28, 1996, 257 SCRA 703.
48
Id. at 714-716.
49
See Perez v. People, G.R. No. 164763, February 12, 2008, 544 SCRA 532, 560.
Barbieto v. CA, G.R. No. 184645, October 30, 2009, 604 SCRA 825, 840-841, citing Neri v. Senate
50
Committee on Accountability of Public Officers and Investigations, Senate Committee on Trade and
Commerce, and Senate Committee on National Defense and Security, G.R. No. 180643, March 25, 2008,
549 SCRA 77, 131.

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Crim Law 1 - Cases

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Republic of the Philippines

G.R. No. 193707 December 10, 2014

The following facts are culled from the records:

Section 4, Rule 2 of the 1997 Rules of Civil Procedure is pertinent

PRESBITERO J. VELASCO, JR.

MARTIN S. VILLARAMA, JR. JOSE CATRAL MENDOZA*

PRESBITERO J. VELASCO, JR.

MARIA LOURDES P.A. SERENO

(1) The spouses;

(2) Legitimate ascendants and descendants;

(5) Legitimate brothers and sisters, whether of full or half-blood.

G.R. No. L-6277 February 26, 1954

JUAN D. CRISOLOGO, petitioner,

Antonio V. Raquiza, Floro Crisologo and Carlos Horrilleno for petitioner.

G.R. No. 164007 August 10, 2006

The facts are:

A total of 321 soldiers, including petitioners herein, surrendered to the authorities.

Upon the other hand, Section 1 of R.A. No. 7055 reads:

CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War 21 provides:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 60. Advising or Aiding Another to Desert.

Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President,

Congress of the Philippines, or Secretary of National

Art. 64. Disrespect Toward Superior Officer.

Art. 65. Assaulting or Willfully Disobeying Superior Officer.

Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

Art. 67. Mutiny or Sedition.

Art. 68. Failure to Suppress Mutiny or Sedition.

Art. 69. Quarrels; Frays; Disorders.

Art. 70. Arrest or Confinement.

Art. 72. Refusal to Receive and Keep Prisoners.

Art. 73. Report of Prisoners Received.

Art. 74. Releasing Prisoner Without Authority.

Art. 75. Delivery of Offenders to Civil Authorities.

Art. 76. Misbehavior Before the Enemy.

Art. 77. Subordinates Compelling Commander to Surrender.

Art. 78. Improper Use of Countersign.

Art. 79. Forcing a Safeguard.

Art. 80. Captured Property to be Secured for Public Service.

Art. 81. Dealing in Captured or Abandoned Property.

Art. 82. Relieving, Corresponding With, or Aiding the Enemy.

Art. 83. Spies.

Art. 84. Military Property.–Willful or Negligent Loss, Damage

Art. 85. Waste or Unlawful Disposition of Military Property

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.

Art. 88-A. Unlawful Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.

Art. 90. Good Order to be Maintained and Wrongs Redressed.

Art. 91. Provoking Speeches or Gestures.

Art. 92. Dueling.

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and Gentleman.

Art. 97. General Article.

WHEREFORE, the instant petition for prohibition is DISMISSED.

CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO