ANTONIO C. OGNIR, PETITIONER, VS. THE DIRECTOR OF PRISONS, RESPONDENT.

A motion for  reconsideration of our decision was filed in this case by the Judge Advocate General of the Philippine Army and Solicitor Antonio A. Torres,  on the ground:   (1) that the General Court-Martial which convicted the defendant had been convened not by Col. Fertig, but by Lt.  Col. Hedges of the 18th Division,  10th Military District;   (2)  that as a matter of fact Col. Fertig was expressly authorized by Gen. MacArthur to convene such court; and (3)  that the decision of the General Court-Martial which convicted the petitioner may be given the same effects as the actuation of the civil courts during the Japanese occupation.

As to the first ground,    according to the    return filed by the First Assistant Solicitor Generalg,    and the Solicitor Antonio Torres,    “The records of    this    case on file with the Judge Advocate General Office, Philippine Army, disclose that the petitioner, together with one Private Elino Pagaling, was charged with violation of the 93rd Articles of War before a general court martial appointed by Colonel Wendell W. Fertig, Commanding Officer of the 10th Military District (Mindanao) pursuant to paragraph 9, Special Order 124, Headquarters, 108th Division, CPQ, Series of 1944, as amended.” According to Sec. 13, Rule 102 of the Rules of Court, the return is prima facie evidence of the cause of restraint, that is, that the petitioner was confined by virtus of a judgment of conviction rendered by a Court Martial convened or appointed by said officer Colonel Fertig, and there is no mention whatever of Lt. Col. Hodges in said return. Therefore, the contention or allegation in paragraph 4 of the motion for reconsideration that “the decision of this Hon. Court was erroneously based on the assumption that the Court-Martial which convicted the petitioner was appointed and convened by Colonel Wendell W. Fertig, when in truth and in fact said Court was appointed by Lt. Col. Hodges, Division Coranander of the 108 Division, 10th Military District,” is a reckless allegation.

With regard to the second ground, assuming, contrary to the return, that Lt. Col, Hodges was the one who convened the General Court-Martial, and not Col. Fertig, there is nothing in the record to show or support the allegation that either Col. Fertig or Lt. Col. Hodges was ever authorized by General MacArthur to convene or appoint the General Court-Martial which convicted the petitioner.    The Exhibit I attached to the motion for reconsideration, that  purports to be an affidavit dated March 8, 1948, of one Captain F. S. Lagman, states among others that  “a radiogram to GHQ,, SWPA was transmitted requesting for an authorization sometime in 1943,  as far as I remember.    After the said request, it is my recollection that an authority was granted him to appoint Special and General Court-Martial.”    This statement in Exh.  I does not deserve any credit.    In the first place,  the so-called affidavit is not signed;  the names F.S. Lagman appearing as affiant, and Jose R. Catibog as the officer before whom the’ so called affidavit is supposed to have been sworn to,  are not signed but typewritten.     (2) Secondly,  said Lagman does not affirm that his recollection is based on the fact that he personally received such radiogram.    On the contrary,  as he states that “as an Adjutant General,  I had access,  as custodian of all records  to  all incoming and outgoing official communications of our headquarters,” it is to be inferred that he had obtained  such information from the record,  and the best evidence is the record itself or the original transcription of radiogram received,   there being no showing that it was lost or destroyed.    Thirdly, Lagman refers to an authority granted (he does not say by whom)   to Colonel Fertig to convene Special and General Courts-Martial,  and not to Lt.  Colonel Hodges    who, according to Exhibit 3 of the motion for reconsideration, convened tiie General Court-martial in question;  and therefore, even assuming without deciding that Col.Fertig. was granted such, authority, the General Court-Partial in question convened by Lt.  Col. Hodges is null and void for the latter had no authority to do so. And fourthly,   Circular No. 34 of the Commonwealth of the Philippine Army Headquarters Apo 75, Appendix B to the petitioner’s petition (admitted and not denied as a  correct  copy of the original),  belies the gratuitous assumption that Lt.  Col. Hedges had authority to convene said General Court-Partial,  for said circular provides that “General Courts-Martial appointed by District Commanders from 1942 to  1944 are not covered by this order  (Executive Order that  empowers District Commanders to convene general courts-martial),  otherwise it would be giving the order its retroactive effect,” and that  “General Courts-Martial appointed by recognized guerilla District Commanders  prior to June 6,  1945,  must show authority for the appointment.”     (underscore ours)

(3) And regarding the third ground, the contention that the proceedings of the General Court-Martial under consideration “may be given effect as  the actuation of de facto officers in the same manner as the pronouncement of Civil Tribunals set   up during the second Republic,” is untenable;  because there is no analogy between the decision of the courts  established by the Military Government    or the so-called second    Republic, and that of the General Court-Martial which convicted the petitioner.

The courts of the Commonwealth legally constituted which were continued during the so-called Philippine Republic, and the other courts during the Japanese occupation were legally created by laws which, under the International Law,  the Military occupant had the right to promulgate. While the said General Court-Martial was created or convened by an officer having no power or authority to do so.

Paras, Actg. C.J., Pablo, Bengzon, Padilla, and Tuason, JJ., concur.
Hilado, J., I concur in the result, but dissent from the declaration that the Commonwealth Courts were continued during the so-called Philippine Republic. As I have so often contended the occupation courts were different from the Commonwealth Courts – the majority have held the former de facto, but we all agree the latter were de jure. The former were courts of the occupation regime, the latter of the lawful government.
Perfecto, and Briones, JJ., joins in the opinion of Mr. Justice Hilado.