THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE HONORABLE JUDGE MEYNARDO A. TIRO OF THE CIRCUIT CRIMINAL COURT, 15TH JUDICIAL DISTRICT (ILIGAN CITY), MAJOR FELIPE U. CARREON,…

Petition for certiorari filed by the State to annul an order of
the respondent Judge Meynardo A. Tiro (Presiding Judge of the Circuit Criminal
Court, 15th Judicial District, at Iligan City), promulgated on August 6, 1970
in criminal case CCC-XV-14- Lanao del Norte, entitled “People of the
Philippines vs. Major Felipe U. Carreon, Jr. and Corporal Sergio Atwil,”
which order directed the delivery of “Major Felipe Carreon and Cpl. Sergio
Atwil to their Commanding General, the IV PC Zone Commander, at Camp
Evangelista, Cagayan de Oro City, for safekeeping, pursuant to Executive Order
No. 106, Series of 1937 and ‘the original Order of Honorable Judge Hernando
Pineda of the Court of First Instance of Lanao del Norte, dated June 16, 1970,
with the instruc­tions that the two accused should be kept within the camp pre­mises
of Camp Evangelista, Cagayan de Oro City, and that should it be necessary for
any of the accused to leave said premises for medical purposes and the like,
the proper petition should be filed before this Court with prior notice to the
prosecution.”

The essential facts are not complicated.

On December 24, 1969 City Fiscal Cicero C. Jurado of Iligan filed
an information charging Major Felipe U. Carreon, Jr. and Cpl. Sergio Atwil with
the crime of murder, committed, in the language of the information, as
follows:

“That on or about December 21, 1969, in the City of Iligan,
Philippines, and within the jurisdiction of this Honorable Court, the said
accused, conspiring and confederating together
and mutually helping each other, armed with deadly weapons, to wit: .38 and .45
caliber firearms, by means of treache­ry and evident premeditation, and with
intent to kill, did then and there willfully, unlaw­fully and feloniously
attack, assault, shoot, hit and wound one Judge Erlito L. Echiverri, thereby
inflicting upon him the following phy­sical injuries to wit:

“Massive Hemorrhage Chest and Abdomen

“Gunshot wounds

which caused his death.

“Contrary to law and in violation of Article 248 of the
Revised Penal Code, with the aggravating circumstances of treachery and evident
premedita­tion.”

At the end of the information appear the
following words: “No Bail Recommended.”

Application was thereafter made with the City Court of Iligan by defense counsel Major Jovito Pinatakan
for the delivery of the two accused for safe-keeping, pending trial, to their
com­manding officer, invoking the provisions of paragraph 4, Execu­tive Order 106, series 1937,
which read as follows:

“4.  In case the judge
or justice of the peace will bind over any officer or enlisted man under ar­rest
to answer a criminal charge, and such officer or enlisted man shall fail to
give bail, the person so in custody shall be delivered to the provincial com­mander
or to the commanding officer of the accused for safe-keeping and shall so
remain until acquitted or convicted on final judgment by the court.  It shall henceforth be the duty of such officer
or provincial commander safely to keep and produce the prisoner before the proper court at the proper
time.  If ne­cessary for the safe-keeping
of the prisoner, he may be committed to the provincial jail or the Bu­reau of
Prisons at Manila by the officer aforesaid.”

In
an order dated April 10, 1970, City Judge Pompeyo L. Palarca of Iligan
ordered the commitment of the two accused to the custody of Major Jovito
Pinatakan at Camp Evangelista, Ca­gayan de Oro City.

On April 30, 1970,
because the accused had waived pre­liminary investigation, an information was
filed with Branch II of the Court of First Instance of Lanao del Norte
(criminal case no. 27) charging the two accused with murder.  The
information recites:

“That on or about December 21, 1969, in the City of Iligan,
Philippines, and within the jurisdiction of this Honor­able Court, the said
accused, conspiring and confederating together and mutually helping each other,
armed with deadly wea­pons, to wit:  .38
and .45 caliber firearms, by means of treachery and evident preme­ditation, and
with intent to kill, did then and there willfully, unlawfully and felo­niously
attack, assault, shoot, hit and wound one Judge Erlito L. Echiverri, thereby in­flicting
upon him the following physical injuries,
to wit:

Massive hemorrhage, chest
and abdomen,

“Gunshot wounds,

which caused his death.

“Contrary to and in violation of Article 248 of the Revised Penal Code, with the aggravating cir­cumstances
of treachery and evident premeditation.”

Private Prosecutors Juan Echiverri and Voltaire Rovira, on June
3, 1970, moved the said Court of First Instance for the commitment of the two
accused to the city jail of Iligan City,
con­tending that par. 4 of Executive Order 106 applies only to crimi­nal cases where the
offenses charged are bailable, and arguing that since the offense charged in
this case is murder, which is a capital offense, and no bail was recommended,
and the accused did not formally petition for bail, par. 4 of Executive Order 106 therefore does not apply.  The
court denied this motion on June 16, 1970.

After the case was transferred to the Circuit Criminal Court, and
after the prosecution had rested its case, the defense counsel presented an
oral demurrer to the evidence.  This
demur­rer was denied on August 4, 1970, in the following words:  “x x x the evidence so far presented by the prosecution, if not
contra­dicted and rebutted by evidence of the defense, is sufficient to convict
the two accused beyond a reasonable doubt.”  Two days later the said circuit criminal
court issued the order of August 6, 1970, the legality of which is now challenged
by the petition at bar.

The petitioner and the respondents are in agreement that
Executive Order 106, series of 1937, is a valid executive order.  The petitioner contends however that par. 4
of This executive or­der does not apply to capital offenses, as in the case at
bar, whereas the respondents argue that the said provisions are man­datory upon
courts of justice in all cases.

We hereunder again quote in full the provisions of para­graph 4
of Executive Order 106:

“4. In case the judge or justice of the peace will bind over
any officer or enlisted man under ar­rest to answer a criminal charge, and such
officer or enlisted man shall fail to give bail, the person so in
custody shall be delivered to the provincial com­mander or to the commanding
officer of the accused for safe-keeping and shall so remain until acquitted or
convicted on final judgment by the court. 
It shall henceforth be the duty of such officer or provincial commander
safely to keep and produce the prisoner before
the proper court at the proper time. 
If ne­cessary for the safe-keeping of the prisoner, he may be committed
to the provincial jail or the Bureau of
Prisons at Manila by the officer aforesaid.” (emphasis ours)

Executive Order 106, series of 1937, which embodies fun­damental rules
and regulations governing the arrest of officers and enlisted men of the armed
forces, was issued and promulgat­ed by the then President Manuel L. Quezon of
the Philippine Com­monwealth, presumably in the exercise of the powers vested
in him as commander-in-chief of the armed forces by the provisions of section
10, clause 2, of article VII of the Constitution.  There was
no statute in existence, before the issuance of the said executive
order, specifically and expressly empowering the President to issue the said
executive order. However, subsequent legisla­tion has recognized the rules
recited in the said executive order pertaining to the arrest and detention of
members of the armed forces who are criminally charged before the civil
courts.  Arti­cle 75 of Commonwealth Act
408 (approved September 14, 1938), otherwise known as the Articles of War,
requires the command­ing officer of a person accused before the civil courts
“to use his utmost endeavor to
deliver over such accused person to the civil authorities, or to aid the
officers of justice in apprehending and securing him, in order that he may be
brought to trial. ” Sec­tion 21 of Republic Act 138 (approved June 14,
1947), as amended by section 4 of Republic Act 1067 (approved June 12, 1954),
takes it for granted that officers ‘and enlisted n-en accused of crimes before
the civil courts may or may not be held in the custody of the civil
authorities.  Thus the said section
provides as follows:

“SEC. 21.  (a) Except as
hereinafter pro­vided in this section, officers and enlisted men lawfully
detained or provisionally released on bail by the civil authorities pending the
trial or final determination of their cases in the civil courts, or serving
sentence of imprisonment, will receive no pay and allowances for the period of
their ab­sence from military control or custody.

“(b) Except as hereinafter provided in this section, officers
and enlisted men who have re­turned to military control following their release
on bail or transfer to the custody of their respec­tive commanding officers for
safekeeping, pend­ing the trial or final determination of their cases in the
civil courts, will receive no pay, as distinguished from allowances, for
any period of ab­sence from their regular duties by reason of the pendency of
their cases before the civil courts.

“(c) Should any officer
or enlisted man fall­ing under subsections (a) or (b) of this section be
unconditionally released by the civil authorities without trial, or after trial
and acquittal, or if the case against him before the civil courts is dis­missed
or otherwise terminated without conviction, or if he shall have been sentenced
to the penalty of destierro under Article two hundred and forty-seven of the
Revised Penal Code, he shall be entitled to receive the pay and allowances, or
pay, as the case may be, for
the period of his absence from military control and/or
regular duties: Provided, That the status of a person as absent without leave
or in de­sertion immediately prior to the time of his arrest or detention by
the civil authorities, and/or follow­ing his provisional or unconditional
release there­from, shall continue until his return to actual mili­tary
control, irrespective of the final outcome of his case before the civil courts.

“(d) Any officer or enlisted man
who has re­turned to military control and performed regular duties pending the
trial or final determination of his case before the civil courts, shall be
entitled to receive pay and allowances during the period such duties have been
performed, irrespec­tive of the outcome of his case.  The restoration to, or relief from, full duty status of officers and enlisted men
who have lawfully returned to mili­tary control or custody pending the trial or final determination of their cases before the civil courts; shall be as directed by the Chief of Staff,
with the approval of the Secretary of National Defense:  Provided, That nothing herein shall be
construed as relieving the proper commanding officer or officers of military
personnel accused before the civil courts from the responsibility of producing
the person of the accused at  the time
and place  required by the lawful order
of the proper civil  authorities.”
(emphasis ours)

A perceptive analysis of the, foregoing provisions of law will yield
the inevitable conclusion that although the law consi­ders as proper the
transfer of an accused military personnel to the custody of the army
authorities for safe-keeping pending trial, just as inescapably is to be
implied from the said statu­tory enactments that the said transfer or
commitment is not compulsory since the same legislative enactments likewise re­cognize
the propriety of the accused remaining in the custody of the civil authorities.

The Legislature has thus impliedly retained in the civil courts
the full discretion, unimpaired and undiminished, to de­termine whether or not to resort
to the provisions of par. 4 of Executive Order 106 in
the proper cases.  This must be so be­cause the said precise
provisions of the said executive order have not been embodied in any statutory
enactment and are a mere part of Army regulations issued by the President as
com­mander-in-chief.  Such regulations
are only directory, as far as civil
courts are concerned.

To this effect are the
following authoritative comments of Colonel
William Winthrop on pages 27 and 32 of his book entitled “Military Law and
Precedents,” 2nd edition:

“The authority for army regulations proper is to be sought –
primarily – in the distinctive func­tions of the President as Commander-in-chief
and as Executive.  His functions as
Commander-in-chief authorize him to issue, personally or through his military
subordinates, such orders and directions as are necessary and proper to ensure order and discipline in the
army.”

“x x x whether or not resting upon any express authority of
statute, the legal effect of army regulations – as of other regulations
proper is – as already indicated,
simply that of executive, administrative, instrumental rules and directions as
distinguished from statutory enactment. 
It is in­deed somewhat
loosely said of the army regulations by some of the authorities,
that they have ‘the force of but this expression is well explained by the court
in U. S. v. Webster, as follows: – ‘When it is said that they have the force of
law, nothing more is meant than that they have that virtue when they are
consistent with the laws established by the Le­gislature.  That is to say, while they have a legal
force, it is a force quite distinct from, and inferior and subordinate to, that
of the statute law.  The have the force
of law within their proper scope, not beyond it.  They are thus not law in the sense of being a part of the ‘law of the land,’ nor are they
embraced in the designation,
‘laws of the United States,’ but are law, and operative, as regulations
only.  As such they are law to the army and those whom they may concern, and so far are binding and conclusive.  While regulations, ‘intended for the
government and direction of officers and agents under his autho­rity, would not
legally restrain, in the exercise of his executive powers, the President,
or the head of the Department by whom the same were made, yet the
President, as well as any other executive offi­cial, would be so far bound by general regulations framed by him that he could not
justly except from their operation a particular case to which they ap­plied.  x x x

“The binding force and application to the army of the army
regulations is illustrated by the fact that a failure to observe a regulation
may constitute a military offence cognizable by court-martial under the 62d
art. of War.  On the other hand, officers
and soldiers, in complying with an authorized regulation, will be justified in
law and protected by the courts.”

Applying the above time-tested and time-honored princi­ples, it
is our view, and we so hold, that while the provisions of par. 4 of Executive
Order 106 may bind the military compulsori­ly, they do not so bind the judicial
tribunals.  Nor is any modicum of
judicial power vested in the military by the mere commitment of an accused to
his commanding officer for safe-keeping, for the duty of an officer in
executing the mandate of a judicial order “is purely ministerial, and his
power with respect thereto is limited to compliance with its terms.”^[1]

That the provisions of
par. 4 of Executive Order 106 are not to be regarded as mandatory upon judicial
tribunals is like­wise compellingly inferred from the following portions of the
ex­planatory note to House Bill 1443, which later became Republic Act 1067 (supra):

“Military personnel awaiting trial before the civil courts, or the
result thereof, may or may not
be under military control; and those who return to military control may or may
not be present and available for their regular duties.  Those de­tained by the civil authorities will
receive pay and allowances for the period of their absence only if they are
acquitted, or if the case is otherwise ter­minated without a conviction.  But so long as per­sons who have lawfully
returned to their units are placed on full duty status and are in the perform­ance
of their regular duties, the outcome of the case against them should have no
effect on their right to receive pay and allowances for the period during which
actual duty has been performed.  And on
the other hand, if they have been prevented from performing regular duties because of the pen­dency of such cases
against them, their right to receive pay and allowances for the period of such
absence from regular duties should logically de­pend upon the final outcome of
the case.  If convicted, their absence is
due to their fault; therefore, no pay accrues. 
The wisdom or desirability of placing such persons (who lawfully return
to mi­litary control) on full duty status, or of placing them under some form
of restraint pending their trial, will of course depend upon the gravity of the
offense, and likelihood of the accused’s at­tempting to escape, and the
military exigencies.  It is proposed to
leave the matter of the restora­tion to, or relief from, full duty status of
mili­tary personnel awaiting trial, to the discretion of the Chief of Staff and
the Secretary of National Defense alone. This discretion is for purposes of
determining the pay status of the accused only. 
It has been expressly provided that in no way can the exercise of this
discretion by the Chief of Staff relieve the commanding officer of the accused
(who is under military control or custody) of the duty of
producing the accused when lawfully required by the proper civil
authorities.”

Thus, the provisions of par. 4 of Executive Order 106, we repeat,
are to be construed as merely directory upon the civil courts.  Stated elsewise, in a case where the offense
charged is bailable, a civil court, with respect to the commitment of the
accused, may, in the proper exercise of its discretion, avail of
the provisions of par. 4 of Executive Order 106, as an alternative recourse
for the commitment of the accused and his custody and safe-keeping until acquitted or convicted by final
judgment.

Coming now to the case at bar, we hold that the provisions of
par. 4 of Executive Order 106 have no application.  The accused are charged with murder, which is
a capital offense.  No bail was
recommended by the City Fiscal when he filed the information.  Nor was any formal application for bail ever
made by the accused.  Even if we
regard the repeated petitions of the accused for their commitment, pending trial, to their commanding officer
as, cons­tructively, petitions for bail, what the respondent court should have priorly done was to
determine, in accord with the pertinent
provisions of the Rules of Court, whether the evidence of guilt against the said accused is
strong.  On an affirmative finding, the
respondent court cannot avail of the provisions of par. 4 of Exe­cutive Order 106, as this paragraph, we have already held, is applicable only to offenses
which are bailable.

In view of the finding of the respondent court, embodied in its
order of August 4, 1970, that “the evidence so far presented by the
prosecution, if not contradicted and rebutted by evidence of the
defense, is sufficient to convict the two accused beyond a rea­sonable doubt,”
which means, in essence, that the evidence of guilt is strong, the questioned
order of the respondent court dated August 6, 1970 directing the re-delivery of
the two accused to their commanding officer for custody and safe-keeping,
pending trial, is clearly a nullity.

ACCORDINGLY, the present petition is granted; the chal­lenged
order of the respondent Circuit Criminal Court dated Aug­ust 6, 1970 is hereby
annulled and set aside; and the said respon­dent Court is hereby directed to
forthwith order the commitment of the two respondents-accused, Major Felipe U.
Carreon, Jr. and Cpl. Sergio Atwil, to the city jail of Iligan, or, if the
environ­mental circumstances so warrant, to any other suitable place of
detention, pending termination of the trial of, and rendition of judgment in,
its criminal case CCC-XV-14-LANAO DEL NORTE. 
No costs.

Reyes, Makalintal, Zaldivar, Teehankee, Barredo, and Villamor, JJ., concur.

Fernando, J., concurs in a
separate opinion.

Concepcion, C.J., no part.

Dizon and Makasiar, JJ.,
on official leave.

^[1]
Whalen v. Cristell, 173 P 2d
252, 161 Kan. 747.

150
Clean
Clean

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