BENIGNO S. AQUINO, JR., PETITIONER VS. MILITARY COMMISSION NO. 2, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, AND SECRETARY OF NATIONAL DEFENSE, THE CHIEF JUSTICE OF THE SU…

DISSENTING OPINION

MUÑOZ PALMA,
J.:

I concur with the dissenting Opinion of Justice Claudio, Teehankee with additional explanation for my vote.

1. On the Motion to
withdraw Petition —

From a letter of Benigno Aquino, Jr. of April
14, 1975, addressed to his wife, children, relatives, and friends
submitted to the Court and now part of the record of the case (see page 65 of
Justice Teehankee’s dissenting opinion), I am
convinced that petitioner no longer desires to seek redress or relief from this
Court.  He would, rather make of his
plight (his continued detention from September 23, 1972, in a military camp and
his trial before a Military Commission for crimes allegedly committed before
the proclamation of Martial Law) a matter of conscience between himself arid
the President of the Republic, and offer his life for what he believes is a
rightful cause.  Who am I to stand on the
way of this man who offers himself in supreme sacrifice, and is ready to
consign his fate to his Maker, for his country and his people?

2. On the merits of the Case —

I vote to grant the Petition for Prohibition because, brushing
aside the personalities of the parties involved, that is, the fact that Benigno Aquino, Jr. was a member
of the Senate and a known leader of the Opposition at the time martial law was
proclaimed and that President Ferdinand E. Marcos believes in the Rule of Law
notwithstanding martial rule, I am called upon at this moment to lay down a
principle of law which will decide the fate, not only of the present generation
but also that of Filipinos still to be born. 
For the main question now at stake — whether or not military tribunals
can try and render a verdict on civilians for offenses allegedly
committed before or even during martial rule, notwithstanding the fact that
civil authority is supreme and civil courts are existing and functioning under
the Constitution — raises before my eyes the gruesome spectre
of one, a hundred, a thousand civilian Filipinos being dragged by the mighty
arm of the military before its own created and manned tribunals, commissions,
etc., for offenses, real or imaginary, and tried and sentenced without the
constitutional safeguards attendant to a trial by civil courts (see page 70-74
of Justice Teehankee’s Opinion for these safeguards).  True it is, that the picture I conjure before
me may not take place at all under the present dispensation because President
Ferdinand E. Marcos, as Commander-in-Chief of the Armed Forces, is committed to
uphold the Constitution and, as quoted by Justice Teehankee,
believes in the protection of the Bill of Rights (see page 101 of Justice Teehankee’s Opinion). 
But what about tomorrow, and the day after tomorrow,
when we shall all be gone and the political atmosphere different?  Legal precepts which are to protect the basic
fundamental rights and liberties of an individual must be laid down not only
for the present but for all times and for all conditions.  The Bill of Rights must remain firm,
indestructible, and unyielding to all forms of pressure, for like Mount
Sinai of Moses it can be the only refuge of a people in any
crucible they may suffer in the course of their destiny.

DISSENTING OPINION

TEEHANKEE, J.:

This opinion for the granting of petitioner’s withdrawal motion
and in view of its denial, for the granting of the writ of prohibition against
respondent military commission as prayed for in the petition, is issued
pursuant to the Court’s Resolution of April
25, 1975, which ruled as follows:

“. . . The Court, by a vote of seven to three, Resolved to
DENY petitioner’s motion for withdrawal of the petition and of all motions and
incidents related thereto.  Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion, Jr. and
Martin, J.J., voted to deny the motion: Fernando, Teehankee
and Muñoz Palma, J.J., voted to grant the motion.

“There being no sufficient votes to declare that the
respondent Military Commission is without jurisdiction over the pending
criminal cases filed against the petitioner and that it acted with grave abuse
of discretion in conducting the perpetuation of testimony proceedings, the
Court Resolved to lift, effective immediately, the restraining order issued on
April 8, 1975.  Teehankee
and Muñoz Palma, JJ., voted to maintain the
restraining order.

“On the question of waiver of the presence of the petitioner
in the perpetuation of testimony proceedings, Fernando; Teehankee,
Barredo, Antonio, Muñoz
Palma and Aquino, JJ., voted in favor of upholding
the petitioner’s right of total waiver of his presence; Castro, Esguerra, Concepcion, Jr. and
Martin, JJ., voted in favor of qualified waiver, that is, that the accused
could waive his presence except in the instances where such presence is needed
for his identification by the prosecution witnesses.

“The extended reasoned resolution or decision and the separate
extended reasoned concurring and/or dissenting opinions will be released next
week.

“Makalintal, C.J., did not take part
for being a party respondent; Makasiar, J., is on
official leave.”

I. I vote for the granting of petitioner’s motion to withdraw his
petition and all other pending motions and matters.

To paraphrase and cite the Chief Justice’s reasons in casting a
vote for granting a similar motion for withdrawal of petition filed by former
Senator Jose W. Diokno in the Habeas Corpus cases^[1]
(which was also defeated for lack of necessary votes), such withdrawal would
not emasculate the “issues of paramount public interest” that need to
be resolved (as invoked by the majority) for they may be duly resolved in the
other cases which remain pending, such as the earlier and urgent lead case of Gumaua vs. Espino and
Military Commission No.2^[2]
which raises the same fundamental question of whether military tribunals have
jurisdiction to try civilians (wherein petitioner was sentenced on March 16,
1973 to death by firing squad, which sentence was affirmed on September 29,
1973 by the President and which has long been pending decision); and since it
is petitioner Aquino’s life and liberty that are at
stake, his choice to renounce his own petition questioning the jurisdiction of
respondent military commission to try the cases filed against him and the
subsequent incidents and to remove the case from this Court’s cognizance should
be respected “regardless of the fact that (one) disagreed with many of his
reasons for so doing” since one “could not escape a sense of irony in
this Court’s turning down the plea to withdraw. . . and then ruling adversely
to him on the merits of his petition.” It may be added that since the
majority who voted to deny the withdrawal motion numbers only seven out of ten
Justices taking part in the deliberations as of the date of issuance of the
Court’s Resolution of April 25, 1975 which denied the motion^[3]
the majority opinion would fall short of the required number of eight Justices
to render a decision on the merits.^[4]

The Solicitor General’s grounds for opposing withdrawal are not
persuasive.  In his first opposition of April 14, 1975 where he notes that
petitioner “has chosen to dramatize his protest by staging a hunger
strike.  Petitioner’s motion is thus
silently eloquent in its avoidance of the reasons for (withdrawal), “his
prayer that “if the petitioner’s motion is granted, it should be with
prejudice,” is inconsistent with his posture that the petition is
premature and with the fact that the charges against petitioner are still, pending
reinvestigation as ordered by the President.  In his second opposition of April 16, 1975,
he avers that the Government “seeks only to present the evidence
supporting the charges of murder, illegal possession of firearms and subversion
against the petitioner,” and if this be so, petitioner’s withdrawal of his
petition at bar precisely clears the way of all judicial obstacles for the
prosecution to do so.

Petitioner’s withdrawal should be properly granted in pursuance
of the established principle that the judicial power is exercised only when
necessary for the resolution of an actual case and controversy, particularly in
view of the respondents’ stand in their answer that the petition has been prematurely
filed.

Judicial abstention would provide the Court with time and
opportunity to ponder and deliberate on the basic constitutional questions
involved and their ramifications which concern inter alia
the supremacy of civilian authority over the military, the right of civilians
to judicial process as against the executive process of military tribunals, the
upholding of Judicial Power as vested by the Constitution in the Supreme Court
and in such inferior courts as may be established by law and the recognition of
the individual’s liberties as guaranteed by the Bill of Rights even in a state
of martial law.

II. Since the majority has nevertheless resolved to go into the
merits of the case and the transcendental constitutional issues, a brief
statement of the factual background is required for the proper consideration of
the issues on the merits.

Petitioner (after having been served on August 11 and 18, 1973 at
his detention quarters with copies of the six criminal charges filed against
him with respondent military commission) filed on August 23, 1973 his original petition
at bar for prohibition questioning the jurisdiction of military tribunals in
the absence of a state of war or belligerency over civilians like him
particularly, for civil offenses allegedly committed before the proclamation of
martial law and complaining of violation of his constitutional rights in that
he was deprived of due process and the vested right to preliminary
investigation as provided by law and the assistance of counsel with right to
cross-examine the witnesses against him.

Petitioner further alleged that the military tribunals are mere
instruments and subject to the control of the President as created by him under
the General Orders issued by him as Commander-in-Chief of the Armed Forces of
the Philippines,^[5]
and that he had already been publicly indicted and adjudged guilty by the
President of the charges in a nationwide press conference held on August 24,
1971, following the Plaza Miranda bombing of August 21, 1971 and the suspension
of the privilege of the writ of habeas corpus under Proclamation No. 889 on
August 23, 1971.

The Court set an urgent preliminary hearing on August 26, 1973 (a Sunday) on the
question of whether with its membership then of only nine (9) Justices, it had
the required quorum to take cognizance of the petition.  No further action was taken by the Court for
following petitioner’s refusal to participate in the arraignment and trial set
on August 27, 1973, the President issued on August 28, 1973 Administrative
Order No. 355, creating a special five-member committee to “reinvestigate
the charges against Benigno S. Aquino,
Jr. and others,” composed of a retired Supreme Court Justice to be
designated by the Chief Justice as chairman and four members to be designated
respectively, by the accused-petitioner himself, the president of the
Integrated Bar of the Philippines, the Secretary of Justice and the Secretary
of National Defense, with the proviso that “should the accused decline to
designate a representative to the committee, the Chief Justice shall designate
someone in his stead” and expressly stating the following premises and
objectives:

“WHEREAS, Benigno S. Aquino, Jr. and his counsel have repeatedly complained,
orally and in writing that the accused has been denied his constitutional
right to due process and have openly questioned the regularity and fairness
of the application to him of the established procedure sanctioned by law and
practice;

“WHEREAS, although the Prosecution Staff is assumed to have
conducted a fair and impartial initial investigation, it is desirable to
reassure the accused that he continues to enjoy his constitutional
right to due process and to remove any doubt whatsoever in the mind
of anybody that only after finding a prima facie case against him
were charges filed;

“WHEREAS, it is necessary for the above purpose that a
Committee be created to conduct a re-investigation of said charges to
demonstrate that everything is being done to insure utmost fairness,
impartiality and objectivity is the prosecution of the charges against
the accused and to determine whether really there is reasonable ground to
believe that the offenses charged were in fact committed and the accused is
probably guilty thereof.

“* * *              * * *                  * * *

“The Committee shall convene immediately, conduct the
preliminary investigation in the most expeditious manner and submit its
findings to the Secretary of Justice.

“To prevent a failure or delay of justice, any testimonial
evidence presented before the Committee may be used in any proceeding or action
before any court or tribunal, civil or military, without need of presenting the
witness or witnesses who testified in case such witness or witnesses
have died or left the country or become unable to testify.”^[6]

The charges against petitioner and his co-accused were thus
brought back to the stage of preliminary investigation.  On August
30, 1973, respondent military commission met and ordered that the
hearing of the cases be postponed indefinitely to await the outcome of the
reinvestigation ordered under the said Administrative Order.

 The Secretaries of Justice
and of National Defense designated their representatives.  The Chief Justice asked retired Justice
J.B.L. Reyes, but the latter on August
31, 1973 declined the designation and also declined as IBP
president to designate a representative to the special committee, on grounds of
illegality of the order.  Petitioner
likewise declined to designate his representative.

Petitioner filed on September
5, 1973 his first supplemental petition to include these
developments and to insist that he be granted his right to preliminary
investigation as prescribed by statutory law, to be conducted by the court of
first instance as far as the four charges of subversion under R. A. 1700 are
concerned.  (On October 31, 1973,
Presidential Decree No. 328 amending P.D. No. 39 prescribing the rules of
procedure for military tribunals under martial law was issued, providing for
the perpetuation of testimony in cases pending before military tribunals.)

No action was taken by the Court on this supplemental petition
until July 11, 1974 when it
issued a resolution requiring an answer thereto which was filed by the
Solicitor General on August 21, 1974.  On October 31, 1974, petitioner filed a
second supplemental petition citing the President’s statements to the world press
on April 15, 1974 and August 19, 1974 on the “actual removal” of
martial law and that “technically and legally, martial law was lifted with
the ratification of the Constitution last year (1973).” The Solicitor
General filed his answer thereto on December
11, 1974.

Memoranda were filed by petitioner’s counsel and by the Solicitor
General on March 21, 1975
and March 11, 1975,
respectively.

Meanwhile, on March 10, 1975, respondent military commission
issued ex parte its order granting the
prosecution’s motion of March 7, 1975 “to examine and take the deposition
of its witnesses” on March 31, and April 1-4, 1975 until terminated for
perpetuation purposes on the bare allegation that “(T)he petitions of the
accused Benigno S. Aquino,
Jr. pending in the Supreme Court will take time to resolve resulting in the
delay of the perpetuation of the testimonies of the prosecution witnesses . .
.”

Petitioner’s counsel filed on March 24, 1975 an urgent motion to
restrain respondent military commission from holding the perpetuation
proceedings on the grounds among others that the very issue of its jurisdiction
to take cognizance of civil offenses allegedly committed before martial law by
civilians like petitioner was pending with this Court and that such proceedings
would “short-circuit” the Special Reinvestigating Committee created
under Administrative Order No. 355 even before such committee has commenced its
duty to determine the existence of “reasonable ground to believe that the
offenses charged were in fact committed and the accused is probably guilty
thereof’ and “whether or not petitioner should be held for trial.”^[7]

On April 1, 1975,
this Court, then composed of ten members issued its resolution that it lacked
the “necessary quorum” to act on petitioner’s said urgent motion.

On April 7, 1975, petitioner’s counsel filed an urgent
manifestation averring that this Court without a qualified quorum could issue
the temporary restraining order prayed for so as not to render the case moot
and apprising this Court that after respondent military commission had on April
1, 1975 held, consistently with Elago vs.
Peoples^[8]
that the perpetuation proceedings are not a part of the trial and
granted petitioner’s request to be returned to his detention quarters, ruling
that he could refuse to be present at the proceedings since he had expressly
waived his presence, as allowed in P.D. No. 328, it reversed itself at the
military prosecutor’s instance on April 4, 1975 and now ruled that the perpetuation
proceedings are part of the trial and that petitioner must be present at the
proceedings (which would take two to three months according to the military
prosecutor’s manifestation) and that petitioner must be physically present
throughout the proceedings even against his will.

Petitioner’s counsel further manifested that petitioner’s request
to respondent military commission to suspend the proceedings for seven days to
allow his counsel time and opportunity to seek appropriate relief from this Court
was summarily denied and petitioner then delivered his statement that if denied
this “last basic right of a human being . . . to be let alone” he
would have no alternative “but to go on a hunger strike, as a form of
silent protest against a procedure that is intended to humiliate and dehumanize
me.”

The perpetuation of testimony proceedings thus commenced on April 4, 1975 and continued on
succeeding days with the military prosecutor presenting as the first state
witness Benjamin M. Bie, Jr. alias Huk Commander Melody, and with petitioner being compelled
to be present throughout the proceedings. This witness, Bie
together with another listed witness Benjamin Sanguyo
alias Huk Commander Pusa
were originally co-accused with petitioner in four subversion charges but the
charges against them were withdrawn under a “nolle
prosequi” order issued by the Secretary of
National Defense dated March 15, 1975.

On April 8, 1975,
the Court ordered the issuance of a temporary restraining order enjoining
respondent military commission from further proceeding with the perpetuation
proceedings until the matter is heard and further orders and set petitioner’s
urgent motion and related incidents for hearing on April 14, 1975. 
It was at this hearing that petitioner’s counsel presented the simple
motion to withdraw the petition and all other pending motions in compliance
with the petitioner’s express wish.

In compliance with the Court’s instruction at the hearing to
inquire into petitioner’s reasons for his withdrawal motion, his counsel on the
next day, April  5, 1975, filed their
manifestation submitting therewith petitioner’s 6-page letter of April 14, 1975
addressed to his wife, mother, relatives and friends stating his reasons therefor and for continuing the hunger strike ”
(he)began ten days ago,” inter alia, that
“(he) felt that the case (he) had filed since 1973 in the Supreme Court
had become meaningless; that he had decided to “place (his) fate and (his)
life squarely in the hands of . . . Mr. Marcos;” that “The meaning
and thrust of (his) struggle and sacrifice transcend the limited question of
(his) absence or presence in the proceedings before the military tribunal”
and he has solemnly vowed to continue his hunger strike as a protest against
:”1. the trial of civilians before military tribunals . . .; 2. the lack
of judicial independence . . . for as long as our judges remain ‘casuals’. . .;
3. the absence of a genuine free press . . .; (and) 4. the further continuance
of martial law and its evils and repressions . . .”

III. The transcendental character of the constitutional issues
raised, dealing as they do with the individual’s fundamental liberties as
guaranteed by the Bill of Rights even in a state of martial law, which
concededly is “not a military takeover of civil government functions”^[9]
and recognized under the 1973 Constitution to which all have pledged loyalty
and wherein we are now called upon to discharge the judiciary’s great burden of
defining its constitutional boundaries, compels my vote on the merits which I
cast for the granting of the writ of prohibition prayed for against respondent
military commission for the reasons and considerations which are hereinbelow respectfully submitted.

1. Civilians like petitioner
placed on trial for civil offenses under general law are entitled to trial by
judicial process, not by executive or military process.

Judicial power is vested by the Constitution exclusively in the
Supreme Court and in such inferior courts as are duly established by law.^[10]
Judicial power exists only in the courts, which have “exclusive power to
hear and determine those matters which affect the life or liberty or property
of a citizen.”^[11]

Military commission tribunals are admittedly not courts and do
not form part of the judicial system.  As
further admitted by the Solicitor General in his answer,^[12]
“military commissions are authorized to exercise jurisdiction over two
classes of offenses, whether committed by civilians or by military
personnel either (a) in the enemy’s country during its occupation by an
army and while it remains under military government or (b) in the
locality, not within the enemy’s country, in which martial law has been
established by competent authority.  The
classes of offenses are (a) violation of the laws and customs
of war and (b) civil crimes, which because the civil
courts are closed or their functions suspended or limited, cannot
be taken cognizance of by the ordinary tribunals.”

Since we are not enemy-occupied territory nor are we under a
military government and even on the premise that martial law continues in
force, the military tribunals cannot try and exercise jurisdiction over
civilians for civil offenses committed by them which are properly cognizable by
the civil courts that have remained open and have been regularly functioning.^[13]
In the leading case of Duncan vs. Kahanamoku,^[14]
the U.S. Supreme Court held in setting aside the prison sentences imposed on
two civilians by military tribunals that the placing of Hawaii under martial
law (after the Japanese Pearl Harbor attack on December 7, 1941) under the
Hawaiian Organic Act^[15]
did not include the power on the part of the military governor to supplant
civilian laws by military orders and to supplant civil courts by military
tribunals, where conditions were not such as to prevent the enforcement of the
laws by the courts.

The late Justice Frank Murphy in his concurring opinion therein
repudiated the government’s appeal to abandon the “open courts” rule
on the alleged ground of its unsuitability to “modern warfare conditions
where all the territories of a warring nation may be in combat zones or
imminently threatened with long range attack even while civil courts are
operating” as seeking “to justify military usurpation of civilian
authority to punish crime without regard to the potency of the Bill of
Rights,” and observing that “Constitutional rights are rooted deeper
than the wishes and desires of the military.”

And in Toth vs. Quarles^[16]
the U.S. Supreme Court further stressed that “the assertion of military
authority over civilians cannot rest on the President’s power as
Commander-in-Chief or on any theory of martial law.”

Thus, the President has filled up vacancies in the judiciary and
“allayed effectively the fears expressed during the initial days of
martial law that the rule of the military would prevail because other countries
under martial law had dispensed with civilian courts of justice” and
stressed the supremacy of the Constitution at the 38th anniversary rites of the
AFP when he told the Armed’ Forces that “The military is the force that
enforces the law, but the civil government is the ruling power in our
country,” and that “we have stuck to the Constitution.  We have pledged loyalty to that
Constitution.”^[17]

2. Even assuming that
military tribunals could validly exercise jurisdiction over offenses allegedly
committed by civilians notwithstanding the absence of a state of war or
belligerency and the unimpaired functioning of the regular courts of justice,
such jurisdiction could not encompass civil offenses (defined by the general
civil law as per the Revised Penal Code and Republic Act 1700 known as the
Anti-Subversion Act) alleged to have been committed by civilians like
petitioner in 1965, 1967, 1969, 1970 and 1971, long before the
declaration of martial law as of September 21, 1972.

The U.S. Supreme Court aptly pointed out, in Toth
vs. Quarles, supra, in ruling that discharged army veterans (estimated to
number more than 22.5 million) could not be rendered “helpless before some
latter-day revival of old military charges”^[18]
and subjected to military trials for offenses committed while they were in the
military service prior to their discharge, that “the presiding officer at
a court martial is not a judge whose objectivity and independence are protected
by tenure and undiminished salary and nurtured by the judicial tradition, but
is a military law officer.  Substantially
different rules of evidence and procedure apply in military trials.  Apart from these differences, the suggestion
of the possibility of influence on the actions of the court-martial by the
officer who convenes it, selects its members and the counsel on both sides, and
who usually has direct command authority over its members is a pervasive one in
military law, despite strenuous efforts to eliminate the danger.”

The late Justice Black speaking for that Court added that
“(A) Court-Martial is not yet an independent instrument of justice but
remains to a significant degree a specialized part of the over-all mechanism by
which military discipline is preserved,” and that ex-servicemen should be
given” the benefits of a civilian court trial when they are actually
civilians. . . . Free countries of the world have tried to restrict military
tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining
discipline among troops in active service.”

More so then should military trials be not sanctioned for civil
offenses allegedly committed by civilians like petitioner long before the
declaration of martial law and for which they could have been charged then as
well as now before the civil courts which have always remained open and their
process and functions unobstructed.

The Solicitor General’s contention that military tribunals have
“competence to try civil crimes relating to the causes justifying the
proclamation of martial law”^[19]
in a veiled reference to the subversion” charges against petitioner does
not meet the essential requirement of the existence of overpowering necessity
or emergency to justify the trial of petitioner, a civilian, far the said civil
offenses by respondent military commission.

On the contrary, the President’s issuance of Administrative Order
No. 355 on August 28, 1973 for the reinvestigation of the charges against
petitioner by a non-military special committee establishes per se that
no serious grounds of overpowering necessity or considerations of national
security or emergency stand in the way of recognizing petitioner’s right to a
civilian trial should the results of the civilian reinvestigation prove adverse
to him.

As stated by the present Judge Advocate General in his treatise
on martial law, “Necessity limits both the extent of powers
that may be exercised under martial law, and the duration of its
exercise.  No life may be taken, no
individual arrested or confined, or held for trial no property destroyed, or
appropriated, no rights of the individual may be curtailed or suspended except
where necessity justifies such interference with the person or the
property.  Any action on the part of the
military that is not founded on the reasonable demands of necessity is a
gross usurpation of power, illegal unjustified, and
improper.  The broad mantle of martial
law cannot cover acts illegal because not justified by necessity, nor proper
under the circumstances.  This principle
is based not only upon the fundamental precepts of constitutionalism,
but rests on sound reason — that where the action of the matter is not
necessary for the public ends of the state they are illegal and the mere
fact that martial law exists will not be a ground for their
justification.”^[20]

3.  Petitioner may not be deprived of his
constitutional right to due process by means of the proceedings instituted
against him before respondent military commission, viz:

(a) The summary ex
parte investigation by the chief prosecution
staff of the JAGO of the charges filed against him deprived him of his right to
be informed of the charges against him and of his right to counsel as expressly
recognized now by section 20 of the Bill of Rights of the 1973 Constitution.^[21]

(b) he would be
deprived of his vested statutory right to a preliminary investigation of the
subversion charges against him before the proper court of first instance as
required under section 5 of the Anti-Subversion Act, Republic Act 1700^[22]
and of the other charges against him before the proper civilian officials and
to confront and cross-examine the witnesses against him under Republic Act
5180; (at the least, the special reinvestigating committee created under
Administrative Order No. 355  should be
activated in order to discharge its assigned task of conducting the preliminary
investigation and determining whether or not the petitioner should be held for
trial);

(c) he would be
deprived of the right to be tried by judicial process, by the regular,
independent court of justice, with all the specific constitutional, statutory
and procedural safeguards embodied in the judicial process and presided over
not by military officers (“trained and oriented along strict rules of
discipline and rigid countenance (although) they are human beings with human
hearts”^[23]
who are not lawyers (except the law member), but by judges of at least ten
years experience in the practice of law whose objectivity and independence are
protected by tenure guaranteed by the Constitution and are nurtured by the
judicial tradition; and

(d) he would be
deprived of the right to appeal to the regular appellate courts and to judicial
review by this Court, in the event of conviction and imposition of a sentence
of death or life imprisonment which the charges carry.^[24]
Article X, section 1 of the 1973 Constitution expressly provides that the
National Assembly (which is vested with the power to define, prescribe and
allocate the jurisdiction of the various courts) may not deprive this Court of
its jurisdiction over such serious cases, among others.  This Court in the exercise of such
jurisdiction has consistently exacted the cardinal rule that the prosecution
must prove the guilt of the accused beyond a reasonable doubt and required a
qualified majority of ten (10) votes for affirmance
of the death penalty (which requirement is of course not found in the
Commander-in-Chiefs review of the decisions of military tribunals).

For the military tribunal to try petitioner under these
circumstances is to deny petitioner due process of law as guaranteed -under
section 1 of the Bill of Rights as well as under section 17 which further
specifically ordains that  “No
person shall be held to answer for a criminal offense without due process of
law.” The elimination by subsequent decrees of his right to preliminary
investigation (with right of counsel and of cross-examination) of the
subversion charges before the proper court of first instance under Republic Act
1700 and of other rights vested in him at the time of the alleged commission of
the offense which were all meant to provide the accused with ample lawful
protection in the enforcement of said Act, such as the basic right to be tried
by judicial process and the right of judicial review by this Court would
further offend the Constitutional injunction against the enactment of ex
post facto laws which would render it easier to convict an accused than
before the enactment of such law.^[25]

With all such constitutional safeguards, the Court through Mr. Justice
Castro in its decision in People vs. Ferrer^[26]
rendered after the proclamation of martial law, nevertheless enjoined that
“even as we uphold the validity of the Anti-Subversion Act, we cannot
overemphasize the need for prudence and circumspection in its enforcement,
operating as it does in the sensitive area of freedom of expression and
belief,” and set specific basic guidelines to be observed in any
prosecution under the Act.  Hence, the
prohibition against ex post facto laws has been aptly described as
“a warning against legislative oppression or tyranny” and a provision
that “would minimize if not eradicate the possibility of the legislature
itself discrediting the state with its palpable disregard of a basic objective,
that justice be dispensed with an even hand through the duly established organs
with a special fitness for the task.”^[27]

Petitioner has thus cited the President’s announcement on
December 11, 1974 that the persons charged with assassination attempts against
him will be tried before the civil courts although the charges were filed with
the military tribunals^[28]
and the President’s recent issuance on March 6, 1975 of Letter of Instruction
No. 225 creating a special five-member panel to conduct an investigation to
re-evaluate the evidence against the therein accused and to determine whether
an offense has been committed and whether they are probably guilty thereof and
if probable cause is found, to file the appropriate charges.^[29]

4. Petitioner’s plea that his trial by a military tribunal created
by the President and composed of the President’s own military subordinates
without tenure and of non-lawyers (except the law member) and of whose decision
the President is the final reviewing authority as Commander-in-Chief of the
Armed Forces deprives him of a basic constitutional right to be heard by a fair
and impartial tribunal, considering that the President has publicly declared
the evidence against petitioner “not only strong (but) overwhelming”
and in petitioner’s view thereby prejudged and predetermined his guilt merits
consideration.

In petitioner’s view, he has been publicly indicted and his guilt
prejudged by the President when in a nationwide press conference on August 24,
1971 following the Plaza Miranda bombing three days earlier of the Liberal
Party proclamation meeting, the President charged him and disclosed evidence in
the possession of the government linking petitioner to some illegal and
subversive activities, in 1965-1971, which are virtually the same charges now
filed against him before respondent military commission, and declared the
evidence against petitioner “not only strong (but) overwhelming.” The
President explained on the same occasion that in not acting against petitioner,
he had “erred on the side of generosity as well as of liberality hoping
that good sense may someday catch up with him” since petitioner was
“the only opposition senator left in the Senate” alter the bombing,
but that he did not know “what will happen later on, because, of course,
the military insist that we must not make any exceptions to the general
rule.”^[30]

While one may agree that the President as Commander-in-Chief
would discharge his duty as the final reviewing authority with fealty to his
oath “to do justice to every man”, particularly because of his renowned
legal sagacity and experience, still under the environmental facts where the
military appears to have been impressed by the President’s appraisal of the
evidence and without casting any reflection on the integrity of the members of
respondent military Commission which petitioner himself acknowledges, the
doctrine consistently held by the Court that “elementary due process
requires a hearing before an impartial and disinterested tribunal”^[31]
and that “All suitors . . . are entitled to nothing short of the cold
neutrality of an independent, wholly free, disinterested and impartial
tribunal”^[32]
calls for application in the present case.

This Court in all its jurisprudence on disqualification and
inhibition of judges has invariably cited as “a salutary norm . . . that
he (the judge) reflect on the probability that a losing party might nurture at
the back of his mind the thought that the judge had unmeritoriously
tilted the scales of justice against him” and applied the yardstick that
when the basis has been laid for “the possibility of a trial being tainted
by partiality, this Court can step in to assure respect for the demands of due
process” which it has extended primarily for the peace of mind and
protection of the accused.^[33]

Respondents’ citing of Yamashita vs. Styer^[34]
as justifying the prosecution and trial of civilians by military commissions is
in error as that case involved the “trial and punishment of war criminals
(which) is an aspect of waging war.” Neither is the creation of the
People’s Court after the last war to try those charged with treason in point,
for said court as well as similar courts like the Circuit Criminal Courts which
were created by Congress pursuant to its authority under the Constitution and
vested with special jurisdiction over certain crimes, were created as judicial
courts and part of the judicial system whose decisions were and are subject to
review by the appellate courts, unlike military commissions.

5. Prescinding from the issue of
respondent military commission’s lack of jurisdiction over the charges against
the petitioner, the examination of the prosecution witnesses and the
perpetuation of their testimony should properly be held before the Special
Reinvestigating Committee created under Administrative Order No. 355 for the simple
reason that all proceedings before respondent military commission were deemed
suspended by virtue of the reinvestigation ordered by the President to
determine whether there “really is reasonable ground” to hold
petitioner for trial and the perpetuation of testimony given before the said
Committee is expressly provided for in the Administrative Order.

It was precisely “to reassure the (petitioner) that he
continues to enjoy his constitutional right to due process ” and “to
insure utmost fairness, impartiality and objectivity” and “to
determine whether really there is reasonable ground to believe that the
offenses charged were in fact committed and the (petitioner) is probably guilty
thereof” that the President created under Adm. Order No. 355 on August 28,1973
a special five-member committee “to conduct the preliminary
investigation” of the charges against petitioner.

It may be seen from the above-stated premises and objectives that
the administrative order was issued by the President pursuant to his “orientation
towards the protection of the Bill of Rights (and) the judicial process.”
As the President himself declared in the same nationwide press conference of August 24, 1971:

“I am a lawyer, my training is oriented towards the protection
of the Bill of Rights, because if you will remember, I have repeatedly said,
that if it were not for the Bill of Rights I would not be here now.  If it were not for the judicial process, I
would not be President of the Republic of the Philippines.
. . .”^[35]

In petitioner’s urgent motion of March 24, 1975 for a restraining
order against the holding of perpetuation of testimony proceedings before
respondent military commission, he precisely complained that such proceedings
would preempt and render moot the prejudicial question raised by him in the
case at bar challenging the commission’s jurisdiction to take cognizance of the
charges against him and would “short-circuit” the reinvestigation
ordered by the President under Adm. Order No. 355 “even before the said committee
has performed its duty to determine whether or not petitioner should be held
for trial” and notwithstanding that “there is no indication coming
from the President of the Philippines that it has outlived its usefulness — functus oficio — or
that it is not fit to administer justice to the petitioner.”^[36]

While petitioner insisted on his right to a preliminary
investigation of the subversion charges by the court of first instance as
prescribed by Republic Act 1700, he nevertheless propounded in his March 21,
1975 memorandum that retired Justice J. B. L. Reyes’ having declined to act as
chairman of the committee and to designate a representative of the Integrated
Bar did not mean that the committee “cannot be made to function (since) in
the absence of judicial writ or process, there is nothing to prevent the
designation of another retired justice of the Supreme Court as chairman, and
nothing to prevent the incoming president of the Integrated Bar to designate a
representative to the committee.”^[37]
As to petitioner’s having declined to designate his representative, it has
already been pointed out, supra,^[38]
that the said order expressly provides that in such event “the Chief
Justice shall designate someone in his stead.”

It is evident then that under the said order, the Chief Justice
was called upon to fill at least the two vacancies by making the substitute
designations as therein provided, which would have enabled the committee to
discharge its function with a composition of four members (while awaiting the designation
of the fifth member by the IBP president) but that he refrained from doing so
as the matter was sub judice because of the pendency of the supplemental petition at bar questioning
the validity of the order on the ground that it deprived petitioner of his
right to investigation by the court of first instance on the principal charges
of subversion.

With the Court’s dismissal of the petitions (and petitioner’s
withdrawal thereof) nothing stands in the way now of activating the said
Special Reinvestigating Committee and its discharging its assigned task of
“conducting the preliminary investigation” and determining whether
petitioner should be held for trial in implementation of the order’s express
objectives of reassuring petitioner of “his constitutional right to due
process” and “insuring utmost fairness, impartiality and objectivity
in the prosecution of the charges against (petitioner).”

Such preliminary investigation by the Special Reinvestigating
Committee with its diverse membership and emphasis that those designated must
meet the qualifications of being “learned in the law, reputed for probity,
integrity, impartiality, incorruptibility and fairness and must have had no
previous connection in this matter either as counsel or investigator” is
certainly far more desirable than the present situation where such grave
charges were summarily filed with the military commission against petitioner
without his having been previously informed of the charges against him nor
given the benefit of any preliminary investigation.

Going by the very standards of “utmost fairness,
impartiality and objectivity” set by the President in the Administrative
Order, and prescinding from the unsettled question of
whether petitioner would have through counsel the right of cross-examination of
the witnesses presented against him, it will be readily appreciated that in
such preliminary investigation by a non-military special committee wholly
composed of civilians, petitioner may then fairly and properly be represented
by experienced counsel who can competently handle his defense and at least
present timely objections to the admission of incompetent or inadmissible
evidence, not to mention that the five men “learned in the law”
composing the committee would most likely motu
proprio rule out any such inadmissible
evidence.  This would be in contrast to
the perpetuation proceedings in the military tribunal where petitioner has
discharged all his counsels, civilian and military, because of the lack of
jurisdiction, in his view, (as well as per this opinion) of the military
commission over civilians like him for alleged pre-martial law civil offenses
and the nullity of the proceedings therein, and thus has been deprived,
although by his own act, of indispensable legal representation and assistance
in the proceedings where his very life, liberty and honor are at stake.

The objective of the perpetuation proceedings may properly be
achieved by the Special Reinvestigating Committee before whom the testimonial
evidence sought to be perpetuated should be presented in the discharge of its
assigned task to conduct a preliminary investigation to determine whether or
not the charges against petitioner should stand and petitioner made to face
trial.  Holding the perpetuation
proceedings before the committee would dispose of the legal requirements under
P.D. No. 328 itself that the proceedings be had before a military tribunal with
jurisdiction and “before which a case is pending.” Even though
technically, as contended by respondents, the cases are still pending with the
military tribunal, it seems obvious from the very terms of Administrative Order
No. 355 that the charges are in fact deemed withdrawn from the military
tribunal and the latter cannot hold any proceedings for as long as the
committee has not completed its preliminary investigation and determined
thereafter the existence of a prima facie case sufficient to let
the charges remain and to require petitioner to face trial.  The Administrative Order thus expressly
provides for the perpetuation of “any testimonial evidence presented
before the Committee” and for its use in any proceeding” before any
court or tribunal, civil or military, without need of presenting
the witness-or-witnesses who testified in case such witness or witnesses have died
or left the country or become unable to testify.”38-a

6.  Assuming nevertheless
that the perpetuation of testimony proceedings could be properly conducted
before respondent military commission, petitioner’s physical presence at the
proceedings could not be compelled by virtue of his express waiver thereof as
explicitly allowed by the Constitution and by P.D. No. 328 itself.

On April 1, 1975,
respondent military commission had recognized petitioner’s right to waive his
presence at the proceedings and granted his request to be returned to his
detention quarters.  But on April 4,
1975, it reversed itself at the military prosecutor’s instance and ruled
instead that petitioner’s presence at every stage of the proceeding is indispensable
on the ground, as stated by the Solicitor General, that “the charges
against petitioner involve capital offenses and petitioner is in custody and
petitioner had claimed in this case that proceedings for the perpetuation of
testimony were actually a part of trial”^[39]

Petitioner’s submittal that he cannot be compelled to be present
at the proceedings even against his will by virtue of his express waiver is
meritorious.  Whereas previously such
right of waiver of the accused’s presence in criminal
proceedings was generally recognized^[40]
save in capital cases^[41]
(leading to the suspension of trial whenever the accused was at large) or where
the accused was in custody although for a non-capital offense, the 1973
Constitution now unqualifiedly permits trial in absentia even of capital
cases, and provides that “after arraignment, trial may proceed
notwithstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustified,”^[42]
thus recognizing the right of an accused to waive his presence.  P.D. No. 328 under which the perpetuation
proceedings are being conducted in military commissions (as the counterpart
rule for similar proceedings before the regular civil courts, as provided in
Rule 119, section 7 of the Rules of Court) explicitly provides that after reasonable
notice to an accused to attend the perpetuation proceedings, the deposition by
question and answer of the witness may proceed in the accused’s
absence and “the failure or refusal to attend the examination or the
taking of the deposition shall be considered a waiver.”^[43]
Thus, an accused’s right of total waiver of his
presence either expressly or impliedly by unjustified failure or refusal to
attend the proceedings is now explicitly recognized and he cannot be compelled
to be present as against his express waiver.

Even as among the members of the Court who voted as per the April
25, 1975 resolution in favor of qualified waiver, i.e. that the accused’s presence could be required in the instances where
his presence is needed for his identification by the prosecution witness, the
view was expressed that such presence could be dispensed with if his waiver
expressly included an admission of his identification by name by the
witnesses-deponents.  It should he noted
that such an additional requirement would be superfluous because of the total
waiver as well as because of the disputable presumption^[44]
established by the rule of evidence of “identity of person from identity
of name”^[45]
aside from the many prominent public positions occupied by petitioner through
which his identification is made by the prosecution witnesses as noted from
their affidavits as submitted by the Solicitor-General.

7. Petitioner’s objection to the perpetuation proceedings,
particularly if they were to be considered part of the trial, since the very
question at issue in the case at bar on military commissions’ lack of
jurisdiction over pre-martial law civil offenses allegedly committed by
civilians like petitioner would be preempted and rendered moot by the
proceedings should have been given due consideration by said commission,
instead of being used by it to require his presence against his will.

It should be noted that the Solicitor General’s second ground for
justifying respondent commission’s reversal order requiring petitioner’s
presence was that “petitioner had claimed in this case that proceedings
for the perpetuation of testimony were actually a part of trial”, without
however stating respondent’s own stand.

The prevailing doctrine, as enunciated by the Court in People
vs. Elago^[46]
appears quite clear that “It is not a trial where the
defendant has to introduce his evidence. 
It is only taking down the statements of the witnesses for the
prosecution with opportunity on the part of the defendant to cross-examine
them.”^[47]
The Court, citing Rule 111 (e) of the 1940 Rules of Court (now reproduced in
Rule 115 (f) of the Revised Rules of Court)^[48]
and the great weight of judicial authorities against the admission of a
deposition or previous testimony of a witness who is present in court or is
available at the actual trial set aside the appellate court’s decision
affirming conviction therein and ruled that the trial court and the appellate
court “committed reversible error” in admitting the perpetuated
testimonies or depositions of the two American prosecution witnesses when they
were actually present in court at the time of trial.

The Court thus held that:

“It is clear from the rule … that the testimony or
deposition of a witness may be read or submitted in evidence only when
the deponent is dead or incapacitated to testify or cannot be
found in the Philippines.  If he was present in court, there is no
need for introducing his deposition in evidence because his testimony
is the best evidence, especially in a case like the present where the
deponent in giving his deposition had not been cross-examined by
the defendant, although of course, said failure to cross examine may not be
laid at the door of the prosecution.”^[49]

The most that can be said then is that the perpetuation
proceedings may be conditionally considered part of the trial only
when the deponent witness— is at the time of trial dead or incapacitated to
testify or cannot with due diligence be found in the Philippines.  Absent any of these conditions, it is not
a part of the trial and the witness(es) must give
their testimony anew (not their previous or perpetuated  deposition) as the best evidence subject to
the crucible of cross-examination.

Hence, petitioner had cause to complain against the military
prosecutor’s ambivalent posture that “In the first day he argued we must
proceed (notwithstanding the pendency before this
Court of the petition questioning the commission’s lack of jurisdiction)
because this is not part of the trial. 
Now, the ruling adversely was handed down (allowing petitioner’s waiver
of his presence), but this is a part of trial, he says.”^[50]

8. Withal, these questions presented serious, if not difficult,
questions of law, and particularly, the petitioner’s right to totally waive his
presence at the proceedings presented an important new question that required
an authoritative ruling from this Court because of the new provisions of the
1973 Constitution involved.

The granting of petitioner’s urgent pleas on April 4, 1975 to be
given a period of at most seven days to file a written motion for
reconsideration of the commission’s reversal order of the same date requiring
his presence at every stage of the proceedings (estimated to last from two to
three months, according to the military prosecutor^[51]
and to seek relief from this Court, instead of yielding to the stubborn
insistence of the military prosecutor that the perpetuation be “done
immediately” on the gratuitous s assertion that “precisely because if
the ground is delay, the   witnesses
whose testimonies are sought to be presented would have been long dead if
perpetuation is held up”^[52]
and summarily denying petitioner’s “repeated appeals… as fast as they
were presented” as graphically reported by the press^[53]
would have averted triggering off the hunger strike commenced on the same date
by petitioner who felt that he was unjustly denied his right of waiver and the
“last basic right of a human being . . . to be left alone.”

 Such an urgent serious
plea to be given a reasonable time and opportunity to seek recourse from this
Court would have been readily acceded to by a regular court in line with
established judicial usage and procedure. 
The Solicitor General’s reply of April 11, 1975 after this Court’s
issuance of the restraining order of April 8, 1975 suspending further
proceedings by the commission — in contrast to the military prosecutor’s
unyielding stand incongruously branding the filing with this Court of the
petition at bar and of the supplemental petitions as “delaying tactics”
and “dilatory moves”^[54]
— expressly “welcome(d) any ruling by this Court whether under
Presidential Decree No. 328 the presence of the accused is necessary or
indispensable.” The decision of this Court upholding petitioner’s right of
waiver vindicates petitioners’s assertion before
respondent military commission of his right “to keep silent . . . to stay
alone. . .not to participate. . .”^[55]
— a right which is his to exercise or not.

9. Respondents have utterly failed to show the existence of
“public danger (that) warrants the 
substitution of executive process for the judicial process” and the
setting aside of the constitutional mandate that lodges judicial power in the
regular courts of law and not in military tribunals and guarantees civilians
the benefits of a civilian court trial. 
To subject civilians to military trial just like military personnel and
troops and enemy belligerents rather than to civilian trial by the regular
civil courts is to negate the cardinal principle and state policy of supremacy at
all times of civilian authority over the military.55-a

In seeking to justify the substitution of the executive or
military process by military commissions for the judicial process of
preliminary investigation and trial by the regular civil courts with right of
appeal to the Supreme Court invoked by petitioner as his constitutional right,
the Solicitor General in his memorandum has made a number of bare assertions
without even any factual averments or allegations in support thereof, as
follows:

“Indeed, civil courts may be open and undisturbed in the
execution of their functions and yet may be wholly incompetent to avert a
threatened danger, or to punish, with adequate promptitude and certainty, the
guilty conspirators. In times of rebellion it may often happen that the judges
are in active sympathy with the rebels, and courts their most efficient
allies.  (Ex parte
Milligan, 4 Wall. 2, 18 L. Ed. 281, 299 [Chase, C.J., concurring.])

There may be other reasons justifying the creation of military
tribunals.  Judges may be unwilling to
try the rebels out of fear or other motives.”

* * *                           * * *     
           * * *

“In our case, study shows that Communist subversion and
propaganda aim at the paralyzation of the will and
the terrorism of the population and the government functionary.  In many parts of the country the rebels
succeeded in intimidating and silencing not only the offended parties and their
witnesses but even the judges.”

* * *                           * * *     
           * * *

“Still another reason for trial by military tribunals is the
possibility that the accused may explocit procedural
advantages available in the civil courts and render military operations against
the rebellion difficult.” (Citing a West Virginia case (1912) where the
court therein reasoned that “Participants (in an insurrection) arrested
and committed to the civil authorities, could easily find means of
delaying trial, and liberated on bail return to the
insurrectionary camp and continue to render aid . . . (and) the civil tribunals
. . . are wholly inadequate to the exigencies of a state of
war, incident to an invasion or insurrection.”)^[56]

These reflections on the competence of the civil courts find no
justification in the facts of public notice and knowledge, to wit:

A number of judges of courts of first instance have been removed
with the acceptance of their resignations but there is not a single recorded
case where the “judges (were) in active sympathy with the rebels, and
courts their most efficient allies”;

There is not a single known case since the martial law
proclamation of “judges (being) unwilling to try the rebels out of fear or
other motives” or of the judges, complainants and witnesses having been
intimidated and silenced by rebels;

Neither is there a single known instance of an accused rebel
having “exploited procedural advantages available in the civil courts and
rendering military operations against the rebellion difficult”, since
those suspected of participation or conspiracy in the communist rebellion have
been arrested without right to bail;

General Order No. 49 issued by the President on October 4, 1974
restored to the civil courts a large number of criminal cases that were
transferred to military tribunals upon the proclamation of martial law on the
express premises that “positive steps have been taken to revitalize the
administration of justice and the new Constitution authorizes the
reorganization of the courts” and “although there still exist areas
of active rebellion in the country, on the whole there has been such an
improvement in the general conditions obtaining in the country and in the
administration of justice as to warrant the return of some of the criminal
cases to the jurisdiction of civil courts”; and

These premises of G.O. No. 49 are borne out by the data and
published reports.  The twenty (20) military
commissions (14 ambulatory and 6 regional commissions)^[57]
hearing cases from time to time in marathon hearings as the pressures of the
military service allow the military commissions to convene could not
conceivably match the work and cases disposition of around three hundred and
twenty (320) courts of first instance and circuit criminal courts all over the
country working — continuously and regularly throughout the year.

The argument of procedural delays in the civil courts and need of
prompt and certain punishment has been long cut down by the late Justice Frank
Murphy in his concurring opinion in Duncan^[58]
when he stressed that “civil liberties and military expediency are often
irreconcilable” and that “the swift trial and punishment which the
military desires is precisely what the Bill of Rights outlaws.  We would be false to our trust if we allowed
the time it takes to give effect to constitutional rights to be used as the
very reason for taking away those constitutional rights,” as follows:

“Delays in the civil courts and slowness in their procedure
are also cited as an excuse for shearing away their criminal jurisdiction,
although lack of knowledge of any undue delays in the Hawaiian courts is
admitted.  It is said that the military
‘cannot brook a delay and that ‘the punishment must be swift; there is an
element of time in it, and we cannot afford to let the trial linger and
protracted.’ This military attitude toward constitutional processes is not
novel.  Civil liberties and military
expediency are often irreconcilable.  It
does take time to secure a grand jury indictment, to allow the accused to
procure and confer with counsel, to permit the preparation of a defense, to
form a petit jury, to respect the elementary rules of procedure and evidence
and to judge guilt or innocence according to accepted rules of law. But
experience has demonstrated that such time is well spent.  It is the only method we have of insuring the
protection of constitutional rights and of guarding against oppression.  The swift trial and punishment which the
military desires is precisely what the Bill of Rights outlaws.  We would be false to our trust if we allowed
the time it takes to give effect to constitutional rights to be used as the very
reason for talking away those rights.  It
is our duty, as well as that of the military, to make sure that such rights are
respected whenever possible, even though time may be consumed.”

As already indicated above, it should be noted that no actual
case of undue delays in the prosecution of criminal cases in the regular civil
courts has been claimed by respondents, nor has it been shown that military
necessity or public danger require that petitioner be deprived of his rights to
due process and to the cold neutrality of an impartial tribunal under the
judicial process, should the reinvestigation ordered by the President bind him
over for trial.

10. The
Solicitor-General’s submittal that “the decrees and orders relating to
military commissions are now part of the law of the land and are beyond question”
and that “as the trial and punishment of civilians by military tribunals
under the circumstances . . . are valid and constitutional, objections based on
differences between civil and military courts are immaterial” is
constitutionally infirm and untenable.

The Solicitor-General’s premise is that “with the
ratification of the new Constitution martial law as proclaimed by the President
became part of the law of the land and now derives its validity from the new
Constitution”^[59]
and that by virtue of section 3 (2) of the transitory Provisions^[60]
the decrees and orders on the military commissions are now also part of the law
of the land and beyond question states a rather prolix and sweeping concept
that cannot be precipitately sanctioned.

Martial law has not become part of the law of the land and beyond
question by virtue of the coming into force of the 1973 Constitution.  In fact, the said Constitution has precisely
reproduced the 1935 Constitution’s commander-in-chief clause with power to
declare martial law limited to exactly the same causes of invasion,
insurrection or rebellion or imminent danger and with exactly the same
requirement that the public safety require it.^[61]
Going by the doctrine enunciated in Lansang
vs. Garcia^[62]
by a unanimous Court, the existence of factual bases for the proclamation and
continuation of martial law may under the said provision be judicially inquired
into in order to determine the constitutional sufficiency thereof as well as to
circumscribe the constraints thereof, in particular cases where they clash with
an individual’s constitutional rights, within the bounds of necessity for the
public ends and the public safety, as indeed this Court did pass on such
questions in the Habeas Corpus cases.^[63]
And as the President expressly stated at his world-wide satellite press
conference of September 30, 1974, the duration of martial law is “only as
long as necessary” as per the following pertinent excerpt of his statement
thereon:

“Of course the problem here is, if you say that martial law
leads to democracy, how long are you going to maintain martial law? I say again
that only as long as necessary.  As the
constitutionalists put it, necessity gave life to martial law and martial law
cannot continue unless necessity allows it to live.”^[64]

The cited Transitory Provision, known as the validating provision
puts the imprimatur of a law upon the President’s acts and decrees under
martial law which were not within or beyond his allocated constitutional
powers.  As aptly stated by Justice Munoz
Palma in her separate opinion in the Habeas Corpus cases, the people could not
by the 1973 Constitution have thrown away “all their precious liberties,
the sacred institutions enshrined in their Constitution, for that would be the
result if we say that the people have stamped their approval on all the acts of
the President executed after the proclamation of martial law irrespective of
any taint of injustice, arbitrariness, oppression, or culpable violation of the
Constitution that may characterize such acts. 
Surely, the people acting through their constitutional delegates could
not have written a fundamental law which guarantees their rights to life,
liberty and property, and at the same time in the same instrument provide for a
weapon that could spell death to these rights.”

The contention that the decrees and orders on military
commissions as “part of the law of the land are beyond question”
really begs the question, for as was stressed by Justice Munoz Palma, it would
be “incongruous” that while the acts of the regular National Assembly
as the “permanent repository of the legislative power” are subject to
judicial review, “the acts of its temporary substitute, that is, the
incumbent President” such as the decrees and orders in question would be
claimed to be “beyond question.”

Indeed, the majority resolution recognizes that “Of course,
from the fact that the President has this range of discretion, it does not
necessarily follow that every action he may take, no matter how unjustified by
the exigency, would bear the imprimatur of validity.”

While the decrees and orders on military tribunals were made part
of the law of the land by the cited Transitory Provision (assuming that they
had been properly submitted for the purpose) still this general and transitory provision
can in no way supersede or nullify the specific allocation of jurisdiction and
judicial power of the Supreme Court and the regular courts of justice as
established by law under Article X section 1 of the Constitution nor their
proper exercise of jurisdiction to the exclusion of non-judicial agencies,
under section 8 of Article XVII which provides that:

“SEC. 8. All courts existing at the time of the
ratification of this Constitution shall continue and exercise their jurisdiction,
until otherwise provided by law in accordance with this
Constitution, and all cases pending in said courts shall be heard, tried,
and determined under the laws then in force.  The provisions of the existing Rules of Court
not inconsistent with this Constitution shall remain operative unless
amended, modified, or repealed by the Supreme Court or the National
Assembly.” (Art. XVII)

Insofar as the questioned decrees and orders encroached upon the
jurisdiction of the regular courts over the trial of civilians, they must be
deemed abrogated by the cited provisions of the Constitution itself, in
accordance with the established rule that statutes as well as executive orders
and regulations that are inconsistent with and transgress the provisions of a
new Constitution must be deemed repealed thereby.

As noted in the writer’s previous opinions,^[65]
the specific legislative powers granted the incumbent President in section 3
(2) of the article on Transitory Provisions are limited to “modifying,
revoking or superseding” the incumbent President’s validated acts and
decrees done or issued prior to the proclaimed ratification on January
17, 1973 of the 1973 Constitution.  No
post-ratification legislative powers are therein granted the incumbent
President and such legislative power or more accurately military power under
martial rule that has been exercised by him thereafter (in the absence of a
parliament) must rest on the law of necessity of preservation of the State and
the decreeing of such necessary measures as will safeguard the Republic and
suppress the rebellion (or invasion).  On
the other hand, Section 7 of the same Article expressly reserves to the
National Assembly the power to amend, modify or repeal “all existing laws
not inconsistent with this Constitution (which) shall remain operative.”
Among such existing laws whose “amendment, modification or repeal”
are reserved to the National Assembly are the laws herein involved, viz, the Anti-Subversion Act, Republic Act No. 1700 and the
existing Rules of Court^[66]
with their safeguards for the rights of an accused defendant.  At any rate, any such presidential decrees
and orders cannot prejudice the vested rights of a defendant-accused as to
pre-martial law offenses allegedly committed by him nor be given an adverse ex
post facto effect against him.

11. Respondent’s
assumption of the validity of military trials of civilians and conclusion that
objections based on differences between civil and military courts are
immaterial must necessarily fail.

It has been shown that respondents have failed to show the
existence of some overpowering factor that makes a recognition of petitioner’s
and other civilians’ constitutional rights to due process incompatible with the
public safety as to warrant the temporary casting aside or suspension of such
rights.  On the contrary, the issuance of
the reinvestigation order under Administrative Order No. 355 for the
non-military Special Reinvestigating Committee created thereunder
to conduct a preliminary investigation of the charges against petitioner shows
that no element of public safety is herein involved.

The vested rights invoked by petitioner as essential elements of
his basic right to due process, which are not granted him under the decrees and
orders for his trial by respondent military commission, are substantial and
vital, viz, his right to a preliminary investigation
as apparently recognized by Administrative Order No. 355 (as to the
non-subversion charges) with right to counsel and of cross-examination of the
witnesses against him, and the right under the Anti-Subversion Act to a
preliminary investigation by the proper court of first  instance; his right as a civilian to be tried
by judicial process, by the regular independent civilian courts presided by
permanent judges with tenure and with all the specific safeguards embodied in
the judicial process; and his right to appeal in capital cases to this Court
wherein a qualified majority of ten (10) affirmative votes for affirmance of the death penalty is required.

The ordinary layman as well as practitioner are totally
unfamiliar with the summary rules and procedures of military commissions as
compared to the established procedures under the Rules of Court before the
civilian courts, which per se places the civilian on trial before a
military commission in a disadvantageous position.  A cursory review of the transcripts furnished
the Court shows these peculiarities that normally would not occur in civilian
trials, as follows:

The swearing-in at the commencement of the perpetuation
proceedings on March 31, 1975
of two newly-appointed members:^[67]

The withdrawal on March 15, 1975 of the charges against Huk Commanders Melody and Pusa
who were originally named as co-accused principals in the four subversion
charges and their utilization as state witnesses, which according to the
commission’s law member “automatically takes effect.  The military commission cannot pass upon such
withdrawal”^[68]
in contrast to the procedure in the civilian courts where the discharge of
accused persons to be state witnesses must meet certain requirements in the
interest of truth and justice, e.g. that the “defendant (to be discharged)
does not appear to be the most guilty” and “has not at any time been
convicted of any offense involving moral turpitude” as determined in the judgment
of the court^[69];
and

The military prosecutor (designated as trial counsel) acts in his
own description as “a ‘Glorified Chimoy‘ of the
Military Commission.  He acts not only as
Prosecutor of Military Commission No. 2 but he acts as a general FACTOTUM or a
MAN FRIDAY of this Military Commission . . . (and) he prepares the record of
the trial.”^[70]

As far as is generally known, the military commission at the
conclusion of the trial takes a secret written ballot with at least two-thirds
of the members present to arrive at its summary findings of Guilty or Not
Guilty, without entering a written decision which “shall clearly and
distinctly state the facts and the law on which it is based” as is mandatorily required by the Constitution of every decision
of a civil court of record.70-a

12. The
transcendental constitutional issues involved in the case at bar which the
majority has resolved to decide on the merits despite petitioner’s withdrawal
motion call for adjudication on the basis of enshrined principles of
constitutionalism and the rule of law, as unequivocably
espoused by the President himself.

The case at bar asserts the right of civilians to the judicial
process of civilian trials by the regular civil courts (particularly for
pre-martial law offenses) as against the executive process of trial by military
tribunals and hinges on this Court’s upholding the principle that the
individual in the absence of overpowering necessity or public danger, must be
accorded his constitutional rights as guaranteed by the Bill of Rights even a state
of martial law.  A corollary principle
would be that the continuation of martial law for institutionalization of
reforms is not incompatible with recognizing the fundamental liberties granted
in the Bill of Rights.

The Bill of Rights of the Constitution specifies the powers that
have been withheld from the government and are reserved to the people.^[71]
But the freedoms guaranteed by it against the overwhelming power of the State
would be meaningless and of no use unless citizens could vindicate and enforce
them against the government officials and agencies by proper procedures in the
courts.

As held by the Court in Garcia vs. Macaraig
, “In a system like ours, every exercise of governmental competence,
whether coming from the President or from the lowest official, may be
challenged in court in an appropriate legal proceeding.”^[72]

As was stressed by the late Chief Justice Stone in Duncan,
supra, “executive action is not proof of its own necessity, and the
military’s judgment here is not conclusive that every action taken pursuant to
the declaration of martial law was justified by the exigency. In the
substitution of martial law controls for the ordinary civil processes, what are
the allowable limits of military discretion, and whether or not they have been
overstepped in a particular case, are judicial questions.’ Sterling
vs. Constantin, supra (287 US
401, 77 L ed 387, 53 S Ct 190).”

The Court’s judgment at bar is therefore of the utmost importance
since under Article 8, Civil Code, “Judicial decisions applying or
interpreting the laws or the Constitution shall form a part of the legal system
of the Philippines.”
As defined by Konvitz, “the Constitution and the
laws enacted by the legislatures and the judgments and orders of the courts
constitute the Rule of Law.”

The President has often declared that “The New Society looks
to individual rights as a matter of paramount concern, removed from the
vicissitudes of political controversy and beyond the reach of majorities.  We are pledged to uphold the Bill of Rights and
as the exigencies may so allow, we are determined that each provision shall be
executed to the fullest, . . .”.^[73]

While stressing that “martial law . . . is a temporary
constitutional expedient of safeguarding the Republic”^[74]
and “a temporary phase in the development of our country”^[75],
the President has thus called for the Constitution to “remain firm and
stable, “has rejected the “exercise (of) power that can be identified
merely with a revolutionary government” that makes its own law^[76] and
has called on every citizen to “remain steadfast on the rule of law and
the Constitution”, as follows:

“. . . Whoever he may be and whatever position he may happen
to have, whether, in government or outside government, it is absolutely
necessary now that we look solemnly and perceptively into the Constitution and
try to discover for ourselves what our role is in the successful implementation
of that Constitution. With this thought, therefore, we can agree on one thing
and that is:  Let all of us age, let all
of us then pass away as a pace in the development of our country, but let
the Constitution remain firm and stable and let institutions grow in
strength from day to day, from achievement to achievement, and so long as
that Constitution stands, whoever may the man in power be, whatever may his
purpose be, that Constitution will guide the people and no man, however
powerful he may be, will dare to destroy and wreck the foundation of such a
Constitution.

“These are the reasons why I personally, having proclaimed
martial law, having been often induced to exercise power that can be identified
merely with a revolutionary government, have remained steadfast on the rule
of law and the Constitution.  I would
recommend that if the President can do this, if the President can restrain the
exercise of his own powers, every citizen for his part should not find it a
burden to participate in this act of self-denial and self-abnegation, as an
earnest to the future of our race and our people. ^[77]

This is but to state that no one should be above or below the law
and to reiterate the classic dictum that “The Constitution . . . is a law
for rulers and people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all
circumstances.”^[78]

In the relatively recent case of Phil. Blooming Mills
Employees’ Organization vs. Phil. Blooming Mills,^[79]
Mr. Justice Makasiar restated for the Court certain
“basic concepts and principles” of constitutionalism, which bear
reproducing as they concern the issues at bar, as follows:

“(1)  In a democracy, the preservation and
enhancement of the dignity and worth of the human personality is the central
core as well as the cardinal article of faith of our civilization.  The inviolable character of a man as an
individual must be ‘protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person’.^[80]

“(2) The Bill
of Rights is designed to preserve the ideals of liberty, equality and security
‘against the assaults of opportunism, the expediency of the passing hour, the
erosion of small encroachments, and the scorn and derision of those who have no
patience with general principles.^[81]

“In the pithy language of Mr. Justice Robert Jackson, the
purpose of the Bill of Rights is to withdraw ‘certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal priciples
to be applied by the courts.  One’s
rights to life, liberty and property, to free speech, or free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections.‘^[82] Laski proclaimed that ‘the happiness of the individual, not
the well-being of the State, was the criterion by which its behaviour
was to be judged.  His interests, not its
power, set the limits to the authority it was entitled to exercise.^[83]

* * *                           * * *                              *
* *

Mr. Justice Douglas articulated this pointed reminder:

‘The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of government, but from men of goodwill
— good men who allow their proper concerns to blind them to the fact that what
they propose to accomplish involves an impairment of liberty.

 . . The motives of these men
are often commendable.  What we must
remember, however, is that preservation of liberties does
not depend on motives.  A suppression of liberty has the same
effect whether the suppressor be a reformer or an outlaw.  The only protection against misguided zeal is
constant alertness of the infractions of the guarantees of liberty
contained in our Constitution.  Each
surrender of liberty to the demands of the moment makes easier another,
larger surrender. The battle over the Bill of Rights is a never ending one.

‘. . .The liberties of
any person are the liberties of all of us.

‘. . . In short the
liberties of none are safe unless the liberties of all are protected.

‘. . .But even if we should
sense no danger to our own liberties, even if we feel secure because we belong
to a group that is important and respected, we must recognize that our Bill of
Rights is a code of fair play for the less fortunate that we in all honor and
good conscience must observe.’ “^[84]

If as stressed above uniformly by the President and the cited
legal authorities, supra, the freedoms guaranteed by the Bill of Rights
are “removed from the vicissitudes of political controversy (and) beyond
the reach of majorities and officials” and are established “as legal
principles to be applied by the courts” and “may not be submitted to
a vote; they depend on the outcome of no elections,” then it is
respectfully submitted that the principles of fundamental public policy enshrined
in the Bill of Rights that guarantee to every individual due process and fair
play, regardless of who he is and of whoever may be in power, call for the
granting of the petition and at the least for the reinvestigation of the
charges against petitioner with “utmost fairness, impartiality and
objectivity” as directed in Administrative Order No. 355 itself.

---

^[1] Aquino, Jr. vs. Enrile and
related cases, 59 SCRA 183, 236 (Sent. 17, 1974).

^[2]
L-36188, filed on January 29, 1973 and deemed submitted for resolution with the
filing on May 8, 1973 of the last pleading, petitioner’s surrejoinder,
as required by tbe Court’s resolution of April 26,
1973; see also related case for habeas corpus against execution of death
sentence, L-37586, Gumaua vs. Zagala, et al., filed on Oct. 5, 1973 and submitted for
decision on July 9, 1974.

^[3]
As of release of the Resolution on April
25, 1975, tbe other two Justices of the
present I2-member Court,
namely, the Chief Justice disqualified, and Justice Makasiar
abroad on leave, have not taken part. 
Justices Fernando and Palma
and the writer voted to grant the withdrawal.

^[4]
‘Article X, Section 2 (2), 1973 Constitution.

^[5]
General Orders, 3, 3-A, 8 and 12.

^[6]
Emphasis supplied.

^[7]
Par. 8, Petitioner’s urgent motion of March
24, 1975.”

^[8]
84 Phil. 643.

^[9]
President’s statement on announcing his proclamation of Martial Law, Sept. 23, 1972.

^[10]
Article X, section 1, 19 73 Constitution.

^[11]
Words and Phrases, Perm. Ed. Vol. 23, p. 317-318.  See Lopez vs. Roxas,
17 SCRA 756 (1966); Scoty’s Dept. Store vs. Micaller, 99 Phil. 762 (1956).

^[12]
At pages 14-16, Answer to Supplemental Petition; emphasis supplied.

^[13]
Ex parte Milligan, 4 Wallace (U.S.)
127, 18 L. ed. 297.

^[14]
327 U.S. 304
(1946).

^[15]  Its Organic Act prior to Hawaii’s
incorporation as a state of the American Union contained a provision similar to
that in our Constitution for the declaration of martial law in case of
invasion, insurrection or rebellion or imminent danger thereof, when the public
safety requires it.

^[16]
350 U.S. 5, 14
(1955).

^[17] Philippine
Daily Express, Jan. 3, 1974,
page 4.

^[18]
Chief Justice Earl Warren:  “The
Bill of Rights and the Constitution,” 37 N.Y.U. Law Review, 181.

^[19]
Respondent’s memorandum, pp. 12, 20.

^[20] Santos,
Martial Law, 2nd ed., pp. 77-78, citing Winthrop,
p. 820; Fairman, p. 48; Wiener, p. 14.

^[21]
“SEC. 20. No person shall be compelled to be a witness against
himself.  Any person under investigation
for the commission of an offense shall have the right to remain silent and to
counsel, and to be informed of such right. 
No force, violence, threat, intimidation or any other means which
vitiates the free will shall be used against him.  Any confession obtained in violation of this
section shall be inadmissible in evidence. (Article IV)”

^[22]
This sections expresslv provided that “No
prosecution under this Act shall made (without) a proper preliminary
investigation thereof, with notice, … to the party concerned, who shall have
the right to be represented by counsel, to have compulsory process for
obtaining witnesses in his favor, and to cross-examine witnesses against him; .
. .”.

^[23]
Brig. Gen. G.S. Santos, AFP JAGO Chief, Phil. Daily Express, April 26, 1975, p. 10.

^[24]
Art. X, sec. 5(2) of the 197.Constitution; Rule 115, sec. 1 (i).

^[25]
Art. IV, sec. 12, 1973 Constitution.

^[26]
48 SCRA 382, 415 (Dec. 27, 1972);
see also 56 SCRA 793 (Apr. 30, 1974.

^[27]
Fernando’s Bill of Rights, 1970 ed., p.246; See In re:  petition of Kay Villegas Kami,
35 SCRA 429 (1970).

^[28]
Phil. Daily Express, December 12,
1974.

^[29]Idem.
April 12, 1975.

^[30]
The pertinent text as reported in Manila Times Aug. 30, 1971, Annex A, petition, reads:

Q: — In the light of all this,
Mr. Presidents do you contemplate any particular action on Mr. Aquino and some other officials, which you have also
mentioned?

The President: — Well, I have
been asked the question, then why did you not order the arrest of Senator Aquino? And my answer was he has always claimed that he is
one of the leaders of the Opposition, and I have erred on the side of
generosity as well as of liberality, hoping that good sense may someday catcb up with him. 
That is why I have not acted.  I
do not know what will happen later on, because, of courses the military insist
that we must not make any exceptions to the general rule.

Q: — Mr. President, is the
evidence against the senator strong enough to – for conviction?

The President: — I believe so, I
have not included some of the evidence, but even with what we have, and the
testimonies of some of those whom I have presented to you, as well as those who
are in the custody of the government, I believe that the evidence is not only
strong; it is overwhelming.

Q: — Then Mr. President, if this
is the case under your suspension of the writ of Habeas corpus, are you
empowered to call the Armed Forces to arrest the senator?

The President — Yes, I am — that
I am empowered, yes, even before the suspension of the privilege of the writ of
habeas corpus.  But now he is the I only
senator, the opposition senator left in the Senate.”

^[31] Geotina vs. Gonzales, 41 SCRA 66, per Castro, J.

^[32] Luque vs. Kayanan, 20 SCRA
165, per Sanchez, J.

^[33]
See Umale vs. Villaluz,
51 SCRA 84 (1973), per Makasiar, J.; Mateo, Jr. vs.
Villaluz, 50 SCRA 18, (1973) per Fernando, J. and
cases cited.

^[34]
75 Phil. 563 (1971).

^[35] Manila
Aug. 30, 1971, Annex A,
petition.

^[36]
Par. 8, Urgent Motion of March 24,
1975.

^[37]
Petitioner’s memorandum of March 21,
1975, p. 48.

^[38]
At page 880 hereof.

38-a Supra, at page 880 hereof.

^[39]
Respondents’ Reply to petitioner’s Manifestation dated April 11, 1975.

^[40]
People vs. Francisco, 46 Phil. 403 (1924).

^[41]
People vs. Avanceña, 32 O.G. 713 (1933); see
Diaz vs. U.S. 222 U.S. 442 (1912)

^[42]
Art. IIV, section 19, Bill of Rights.

^[43]
This quoted waiver proviso is identically provided for in Rule 119, sec 7.

^[44]
Rule 131, sec. 5 provides that such “presumptions are satisfactory if uncontradicted, but may be contradicated
and overcome by other evidence.”.

^[45]
Rule 131, sec. 5, par. (w).

^[46]
84 Phil. 643 (1949).

^[47] Idem.
at p. 650.

^[48] Section
1. Rights of defendant at the trial. — In all criminal prosecutions the
defendant shall be entitled:

“ * * *          * * 
*

“(f) To be
confronted at the trial by, and to cross-examine the witness against him. Where
the testimony of a witness for the prosecution has previously been taken down
by question and answer in the presence of the defendant or his attorney, the
defense having had an opportunity to cross-examine the witness, the testimony
or deposition of the latter may be read, upon satisfactory proof to the court
that he is dead or incapacitated to testify, or cannot with due diligence be
found in the Philippiness…”

^[49]
84 Phil. at p. 651, emphasis supplied. 
The accused and counsel in this case had refused to take part in the
perpetuation proceedings, claiming lack of reasonable notice and had abandoned
the session hall.

^[50] April 3, 1975, t.s.n.
p. 53, notes in parenthesis supplied.

^[51] April 4, 1975, t.s.n.
p. 34.

^[52] March 31, 1975 p. 88.

^[53]
Bulletin Today, April 5, 1975.

^[54]
“Phil. Daily Express, April 6,
1973.

^[55] April 3, 1975 t.s.n.,
p. 29.

55-a Art. 11, sec. 8, 1973 Constitution.

^[56]
Solicitor-General’s memorandum, pp. 29-31.

^[57]
Brig. Gen. Guillermo S. Santos, AFP JAGO Chief, Phil. Daily Express, April 26, 1975, p. 10.

^[58] Supra,
tn. 14.

^[59]
Solicitor-General’s memorandum, at p. 17.

^[60]
“(2) All proclamations, orders, decrees, instructions and acts
promulgated, issued, or done by the incumbent President shall be part of the
law of the land and shall remain valid, legal, binding, and effective even
after lifting of martial law or the ratification of this
Constitution, unless modified, revoked, or superseded by subsequent
proclamations, orders, decrees, instructions, or other acts of the incumbent
Presidents or unless expressly and explicitly modified or repealed by the
regular National Assembly.” (Art. XVII, sec. 1)

^[61]
The commander-in-chief in both Constitutions is identical and reads:  “SEC. 12. “The Prime Minister
[President] shall be commander-in-chief of all armed forces of the Philippines
and, whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion, insurrection, or rebellion. In
case of invasion, insurrection, or rebellion, or imminent danger thereof, when
the public safety requires it, he may suspend the privilege of the writ of habeas
corpus, or place the Philippines
or any part thereof under martial law.” (Art. IX, sec. 12, 1973
Constitution and Art. VII, sec. 11 (2) 1935 Constitution)

^[62]
42 SCRA 448, citing Sterling vs.
Constantin 287 U.S. 375, 385.

^[63] Aquino, Jr. vs. Enrile,
etc. 59 SCRA 183, 647-648.

^[64]
Phil. Daily Express, Sept. 23, 1974.

^[65]
See writer’s separate opinions in Aquino, Jr. vs.
Comelec, L-40004, Jan. 31, 1975 and in Gonzalez vs. Comelec, L-40017, Feb.
22, 1975.

^[66]
Sec. 8 of the Transitory Provisions above-quoted recognizes the power of the
Supreme Court or the National Assembly to amend, modify or repeal the Rules of
Court.

^[67]
Col. Stefani C. Domingo, appointed 25 March 75; and
Capt. Benjamin E. Facto, appointed 20 March 75; March 31, 1975, t.s.n., pp. 5-9.

^[68] March 31, 1975, t.s.n.,
p. 18.

^[69]
Rule 119, sec. 9 imposing five requirements.

^[70] March 31, 1975, t.s.n.
pp. 90-91; emphasis supplied.

70-a Art. X, sec. 9, 1973 Constitution.

^[71]
Thomas Jefferson contended in urging that tbe new
U.S. Constitution should include a bill of rights:  “I have a right to nothing which another
has a right to take away . . . Let me add that a bill of rights is what the
people are entitled to against every government on earth … and what no just
government should refuse.”

^[72]
39 SCRA 106, 116 (1971), per Barredo, J.

^[73]
President Marcos:  “Democracy:  a living ideology” delivered May 25, 1973 before the U.P. Alumni Ass’n.; Times Journal issue of May 28, 1973.

^[74]
Pres. Marcos:  Foreword, Notes on the New
Society, p. vi.

^[75]
Pres. Marcos:  Sept. 20, 1974 satellite world press Conference;
Phil. Daily Express issue of Sept. 23,
1974.

^[76]
Pres. Marcos at satellite world press conference of Sept. 20, 1974: “(I) insisted that not only
individuals but also we ourselves in government arid the military be guided by
a Constitution and that Constitution be respected.  This was one of the agreements with those
with whom I met before we agreed to proclaim martial law, and that is, that we
would follow the Constitution and nonestablish a
revolutionary form of government and start fighting all over the
country-side again.” (Phil. Daily Express issue of September 23, 1974.)

^[77]
Pres. Marcos’ address on observance of the first anniversary of the 1973
Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan.
1974, p. 6; emphasis supplied.

^[78]
Ex parte Milligan 4 Wall. (U.S.)
120.

^[79]
51 SCRA 189, 201-202, 220-221; italics copied.

^[80]
American Com. vs. Douds, 339 U.S.
382, 421.

^[81]
Justice Cardoso, Nature of Judicial Process, 90-3; Tañada and Fernando, Constitution of the Philippines,
1952 ed., 71.

^[82] West
Virginia State
Board of Education vs. Barnette, 319 U.S.
624, 638.

^[83] Laski, The State in Theory and Practice, 35-36.

^[84]
A Living Bill of Rights (1961), pp. 61, 62, 64; 4 SCR A, 690-692; italics
copied.

In the latest case
of Magtoto vs. Manguera
etc., L–37201-02, March 3, 1975, Mr. Justice Castro in his dissenting opinion
paraphrased Justice Douglas’ admonition thus: 
“the rights of none are sale unless the rights of a II are
protected; even if we should sense no danger to our owl rights because we
belong to a group that is informed, important and respected, we must always
recognize that any code of fair play is also a code for the less fortunate.”