ANTONIO A. NEPOMUCENO, ALEXANDER C. AREVALO, MANUEL F. DAEZ, MARCELO C. FERRER, MARCELO V. GALLARIN, ROMUALDO B. INDUCTIVO, RODOLFO G. MACASALABANG, POLICARPO A. ROSALES, FAUSTI…

Before Us is petitioners’ Motion for
Reconsideration of the Resolution of the Court en banc dated August 10, 1978 which reads:

“L-45487 (Antonio A. Nepomuceno, et
al. vs. The Secretary of National Defense, et al.) –
Following the holding of this Court in Aquino, Jr.
vs. Enrile, 59 SCRA 183,
considering that, as ordered by the President, petitioners Faustino Samonte, Manuel Daez, Marcelo Ferrer, Marcelo Gallarin, Romualdo Inductivo and Rodolfo Macasalabang were released on June 21, 1978 and petitioner
Antonio Nepomuceno was released on June 22, 1978, and
that none of the petitioners remains under detention, the instant petition for
Habeas Corpus and Mandamus is hereby DISMISSED for being moot and
academic.”

Petitioners impugned the applicability of Aquino,
Jr. vs. Enrile, 59 SCRA
183, to the case at bar as according to them, the former “was a petition
for habeas corpus, whereas, the instant case, aside from being a petition for
habeas corpus and mandamus is also a petition for prohibition with
preliminary injunction,”^[1]
in which they sought to enjoin their prosecution and trial for any offense
which they may have allegedly committed prior to arrest.  Petitioners insist that questions concerning
the right of the State to prosecute them have not been resolved by their
release and should be decided by this Court on the merits, considering that
their petition for prohibition remains unaffected by their release
“because until now, they remain charged before Military Commission No. 5,
the case against them can come up for trial at any future time, and they
continue facing the prospect of being sent back to prison for having allegedly
committed crimes which they have not, in fact, committed, and for which they
can no longer be made accountable because the Government has forfeited its
right to prosecute them,”^[2]
as a consequence of the alleged gross and unconscionable violation of their
constitutional right to speedy trial.

The aforementioned motion was filed despite the dismissal of the
instant petition, which originally was one solely for a writ of habeas corpus,
on the ground of mootness, petitioners having been
ordered temporarily released by the President during the pendency
of the petition, following the Aquino Jr. doctrine
cited in the Resolution of dismissal above-quoted.  What is raised therein is the sole issue of
whether the peti­tioners have been denied their right to speedy trial which
would, according to their contention, result in the
forfeiture of the Government of its right to prosecute them any further.

The Court cannot sustain petitioners’ contention.

1.  The contention of the
petitioners that the Govern­ment has forfeited its right to prosecute them
suggests the idea of prescription, which is the only known ground by which the
State’s right to prosecute an offense may be
lost.  Clearly, the crime charged has not
prescribed, and petitioners never have intimated the prescription of the
offense with which they are charged.

2.  What in reality
petitioners submit as ground for the dismissal of the
charge against them before the Military Commission is the alleged denial of
their right to speedy trial.  True it is, that criminal cases have been dismissed on this ground,
but not one has been found to be where the accused have not been even
arraigned.  Petitioners have not been
arraigned as yet because upon the filing of the charges with Military
Commission No. 5, they filed a motion to quash in which they challenged the
validity of the constitution and competence of the Military Commission.  Much less has the Commission set the case for
trial since petitioners themselves, after the denial of their motion to quash,
filed a supplemental petition^[3]
impleading the Military Commission as a party
respondent, raising before this Court the question of the Commission’s legality
and competence.  Petitioners even asked
for the issuance of a writ of preliminary injunction^[4]
to suspend proceedings before the Commission, which this Court did not issue
because the President himself ordered^[5]
the suspension of said proceedings, following his order for the temporary release^[6]
of the petitioners.  Any delay in the
trial of petitioners’ case is therefore, attributable to their own action, more
than to anybody else.

3.  A delay in the trial of
the case, to constitute a denial of the right to speedy trial must be
vexatious, capricious and oppressive.^[7] No such delay has been committed
here, not even as to the filing of charges which is the main complaint of
petitioners.^[8]
The suspension of the privilege of the writ of habeas corpus affords a valid
excuse for any delay in the filing of the charges, the crime charged being of
such a nature involving a nationwide conspiracy and a continuing one, that
numerous offenders could be brought before the law and detained, so numerous
that the normal dis­patch of filing charges cannot be attained, the reason also
why their prolonged detention has to be given legal justifi­cation as was done
with the grant by the Constitution of the power to the President to suspend the
privilege of the writ of habeas corpus in case of rebellion.  The legality of their continued detention,
otherwise arbitrary under normal conditions, makes the delay in the filing of
charges against them certainly not one that is arbitrary, capricious and
oppressive.  As plausibly argued by the
Solicitor General,^[9]
the delay in the filing of the charges against them was not deliberate but was
rendered reasonably necessary by the exigencies of martial law and by the
circumstances of their case, their arrest being not necessarily for punishment,
but was by way of pre­caution to prevent the exercise of hostile acts, measures
which, if conceived in good faith and in the honest belief that they are needed
in order to quell the rebellion, or to prevent its continuance, fall within the
discretion of the Chief Executive in the
exercise of his authority to maintain peace, the central matter involved being
not merely the liberty of isolated individuals but the collective peace,
tranquility and security of the entire nation, which could not be under­estimated,
and any rebellious activity did call for certain individuals being confined as
a preventive measure.  Unless there be a showing of the arbitrariness of such a move, good faith
being presumed, the judiciary has to respect the actua­tion.

4.  Speedy trial, like fair
trial, is necessarily rela­tive and is consistent with reasonable delays, the
Constitution having been envisioned to prohibit only unreasonable delays, the
circumstances of each case not susceptible to be quantified into a specified
number of days or months and which, as obtaining in this case, do not warrant a
pronouncement that the State has forfeited its right to prosecute the
petitioners by having deprived the latter of their right to speedy trial.

5.  The right to speedy
trial as any other constitu­tionally or statutory conferred right, except when
other­wise expressly so provided by law, may be waived.  It must, therefore, be asserted.  The records do not disclose that at any time
the petitioners themselves moved for the setting of the case for trial in assertion
of such right.  This they could not have
done, with their attack against the validity and constitutionality of the
existence of the Commission itself. 
Hence, if there has been any delay in the filing of the action, or in
the trial of the case itself, petitioners are not entirely without blame.

6.  In the cases in which
denial of the right to speedy trial resulted in the dismissal of the case, the
prosecution, after arraignment and in the trial set for the case, failed to
enter into trial or otherwise to present its evidence without valid excuse, and
instead asked for postponement repeatedly. 
Trial could not, therefore, proceed notwithstanding the insistence of
the accused or the Court.  This could
give rise to the reasonable presumption that the prosecution counts with no
evidence to support conviction. 
Dismissal of the case must reasonably follow if the accused’s
right to speedy trial is not to be violated. 
There is, however, no such presumption nor
violation in the instant case.

ACCORDINGLY, the Motion for Reconsideration is denied.

SO ORDERED.

Makasiar, Aquino,
Concepcion, Jr., Fernandez, Guerrero, and Melencio-Herrera,
JJ.,
concur.

Fernando, C.J., while concurring in the denial of the motion for
reconsideration, cannot subscribe to the view expressed in the resolution that
the issue of the alleged denial of the right to speedy trial is foreclosed in a
subsequent proceeding, if any.  To that
extent, he dissents.

Teehankee, Barredo,
and Abad
Santos, JJ.,
see concurring and dissenting opinion.

^[1]
p. 3, Motion for Reconsideration; p. 1429, rollo.

^[2]
p. 4, ibid.

^[3]
pp. 1016-1059, rollo.

^[4]
pp. 1292-1311; pp. 1324-1333, ibid.

^[5]
Solicitor General’s comment on the Third Urgent Report,
Manifestation and Motion of Petitioners, pp. 1410-1416, ibid.

^[6]
Manifestation of Solicitor General, p. 1406, ibid.

^[7]
Flores v. People, 61 SCRA 331 (1974); Acebedo v.
Sarmiento, 36 SCRA 247
(1970); Kalaw v. Apostol,
64 Phil. 853 (1937); Conde v. Rivera, 45 Phil.
650 (1924).

^[8]
p. 89, Petitioners’ Memorandum, pp. 108-239, rollo.

^[9]
pp. 23-29, Respondents’ Memorandum, pp. 323-357; pp. 7-15, 18-45, Respondents’
Reply Memorandum; pp. 466-528, ibid.

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