G.R. No. L-58284. November 19, 1981
IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, BERNABE BUSCAYNO, JOSE MA. SISON AND JULIET SISON, PETITIONERS, VS. MILITARY COMMISSIONS NOS. 1, 2, 6 AND 25, GENER…
AQUINO, J.:
Bernabe Buscayno alias Commander Dante and Jose
Ma. Sison alias Amado Guerrero, alleged subversives classified as “PKP/HMB/CPP/MAMAO and
Traditional Armed Group personalities”, were wanted by the authorities
since 1971.
In Department Order No. 610 Undersecretary of National Defense
Efren I. Plana fixed P150,000
and P50,000 as the prizes to be paid to any person who kills, captures or
causes the killing, capture or surrender of Buscayno and Sison, respectively,
or who furnishes information directly leading to and which is the proximate
result of their killing or capture. (p. 96, Rollo of L-47185.)
Buscayno and Sison were included in the so-called “National
Target List” of active participants in the conspiracy to seize political
and state power and to take over the government by force whose arrest was
ordered under General Order No. 2 dated September
22, 1972. The list was
prepared by Colonel Hamilton B. Dimaya.
(p. 95, Rollo of L-47185.)
Buscayno’s cases. – Even before Buscayno’s arrest, he and
Benigno S. Aquino, Jr. (arrested on September
23, 1972) were charged before Military Commission No. 2 in an
amended charge sheet dated August 14,
1973 with subversion or violation of the Anti-Subversion Law,
Republic Act No. 1700.
It was alleged that as ranking leaders of the Communist
Party of the Philippines and its military arms, the Hukbong Mapagpalaya ng
Bayan and the New People’s Army, constituting an organized conspiracy to
overthrow the government by force or placing it under the control of an alien
power, they committed the following acts (Criminal Case No. MC-2-23, pp. 71-75,
Rollo of L-47185):
1. In April, 1969, Aquino at
25 Times Street, Quezon City gave
P15,000 to the said organizations for the purpose of
staging an NPA-sponsored demonstration in Manila
which was in fact carried out in Congress, Malacañang and the American Embassy
on April 19, 1969 to
achieve the objectives of the said organizations.
2. Aquino in 1967 gave to
Buscayno in Concepcion, Tarlac a .45 caliber pistol with magazine and
ammunition to be used against the government.
3. Aquino in August, 1967 in
the house of Leonida Arceo located at Barrio San Francisco, Tarlac,
Tarlac gave to Buscayno two .45 caliber pistols to be used against the
government.
4. Aquino in October, 1969
in Barrio Alto, Hacienda Luisita, San Miguel, Tarlac, Tarlac, gave to
Commanders Arthur Garcia and Jose Buscayno two armored vests and a pair of
walkie-talkies to be used against the government.
5. Aquino on November 1 and
2, 1965 in San Miguel, Tarlac, Tarlac, gave to Commander Alibasbas through
Commander Danilo several firearms and ammunition which were taken from the
house of Manuel Rodriguez and which were to be used against the government and
in fact the said firearms were recovered from Commander Alibasbas and his group
when they were killed in Barrio Almendras, Concepcion, Tarlac.
6. Aquino in 1970 and 1971
at 25 Times Street, Quezon City
provided shelter and medical treatment for Roberto Santos alias Commander
Felman, Benjamin Sanguyo alias Commander Pusa and eight other sick or wounded
officers or members of the HMB and NPA.
Aquino, Buscayno, Peter Ilocano and Puriok, as conspirators, were
also charged with murder before Military Commission No. 2 in a charge
sheet dated August 7, 1973. It was alleged that during the last days of
November to December 2, 1967
they took Cecilio Sumat, a barrio captain of Motrico, La
Paz, Tarlac, from his house and killed him in Barrio
San Miguel, Tarlac, Tarlac (Criminal Case No. MC-2-22, pp.
76-77, Rollo of L-47185).
In Criminal Case No. MC-1-92, Buscayno,
with ninety-one other persons including Sison and his wife, Juliet de Lima,
Saturnino Ocampo and Mila Astorga-Garcia, were charged with rebellion
before Military Commission No. 1 in a charge sheet dated March 18, 1977.
It was alleged that on or about February 4, 1972 and for sometime
prior or subsequent thereto the ninety-two accused as officers and leaders of
the Communist Party of the Philippines and its military arm, the New People’s
Army, and as conspirators rose publicly and took up arms against the government
in Navotas, Rizal and elsewhere in the Philippines for the purpose of removing
from the allegiance to said government or its laws the territory of the
Philippines or any part thereof or of its armed forces by organizing the
Karagatan Fishing Corporation and operating the M/V Karagatan, a fishing
vessel, to procure firearms and ammunition for the CPP and NPA as in fact war
materials and armaments were landed at Digoyo Point, Palanan, Isabela on July
2, 1972 from Communist China and were used against the army.
The second specification in Criminal Case No.
MC-1-92 is that Buscayno, Sison and others during the period from August, 1973
to February, 1974 committed rebellion in Manila, Baguio, La Union, Pangasinan,
Bulacan and elsewhere in the Philippines by acquiring, purchasing and operating
vessels, motor vehicles, beachhouses, lots and other real and personal
properties for use in distributing firearms and ammunition for the CPP and NPA
to be utilized in resisting the army and overthrowing the government. (pp. 78-91, Rollo of
L-47185.)
The said case was refiled in Special Military Commission No. 1 as
Criminal Case No. SMC-1-1 with an amended charge sheet dated November 8, 1977 (pp. 189-205, Rollo of G.R. No. 58284).
Buscayno was arrested on August
26, 1976 in Barrio Sto. Rosario, Mexico, Pampanga by operatives of the armed forces. He was detained in the Constabulary Security
Unit at Camp Crame. When the trial counsel informed Buscayno that
his presence at the hearing on September 15, 1976 before Military Commission
No. 2 was necessary, Buscayno in a letter dated September 7, 1976 addressed to
the President of the Commission declared that he had no intention of appearing
before the tribunal; that he did not need a lawyer; that he would not contest
the tribunal’s jurisdiction and that any reference by the prosecution witnesses
to Buscayno alias Commander Dante would be to him and to no other person.
At Buscayno’s arraignment in the subversion and murder cases, he
waived his right to be present and to have counsel. He said that he was not challenging any
member of the tribunal. He just wanted
to have a record of the trial. He
pleaded not guilty. After the
prosecution had finished the presentation of its evidence, Buscayno was asked
whether he wanted to present evidence.
He answered in writing that he did not want to present evidence.
On July 18, 1977,
Juan T. David entered his appearance as counsel for Buscayno in Criminal Case
No. MC-2-23 for subversion. On October
25, 1977, lawyer David filed in this Court in behalf of Buscayno a
petition for habeas corpus and prohibition.
As no restraining order was issued, the Commission continued its
proceeding against Buscayno and Aquino.
On November 25, 1977,
after Buscayno failed to present any evidence in spite of having been given
another chance to do so, his case was deemed submitted for decision. After deliberation, the Commission found all
the accused guilty as charged and imposed death by firing squad. The complete records of the cases were
transmitted to the Secretary of National Defense.
However, four days later or on November 29, the President of the Philippines
directed the Commission to reopen the trial and give Aquino and Buscayno
another chance to present their evidence.
According to the petitioners, on December 15, 1977, this Court enjoined the Commission
from rehearing the two cases (p. 20, Petition) but no restraining order was
actually issued.
This Court in its decision dated January 15, 1981 dismissed Buscayno’s petition (L-47185,
102 SCRA 7). We reiterated the rule that
a military tribunal has jurisdiction to try civilians and that the proceeding
in a military commission is not violative of procedural due process and would
not be vitiated by partiality. (Aquino vs. Ponce Enrile, L-37364, May 9, 1975, 63 SCRA 546; Gamaua
vs. Espino, L-36188-37586, February 29, 1980, 96 SCRA 402.)*
On March 27, 1981,
Military Commission No. 2 convened to hear Buscayno’s evidence in the
subversion and murder cases. His counsel
asked for postponement on the ground that he requested the President of the Philippines
to transfer the two cases to the civil courts and that he should be furnished
with the transcripts of the hearings held on November 25 and December 5, 1977. The truth is that he was furnished with those
transcripts on January 8, 1978.
The postponement was granted.
The hearing was reset for April 23.
At the hearing on that date, Buscayno’s counsel again asked for
postponement because the President had not yet acted upon his request for the
transfer of his cases to the civil courts.
He challenged the competency of the president of the Commission on the
ground of lack of adequate knowledge of the two cases. The challenge was rejected. Buscayno did not present any evidence. The Commission considered the cases
re-submitted for decision.
On May 4, 1981,
the Commission denied Buscayno’s motion for the reconsideration of the ruling
that his case was already submitted for decision. It reaffirmed its 1977 decision imposing on
Buscayno the penalty of death by firing squad.
Cases
against Sison spouses.
– They were arrested on November
10, 1977 by virtue of arrest, search and seizure orders issued by
the Secretary of National Defense.
As already stated in connection with the Buscayno case, the Sison
spouses and ninety-one other persons including Buscayno and Victor Corpus were
charged with rebellion on two counts before Special Military Commission No. 1
as shown in the amended charge sheet dated November 8, 1977.
Even before her arrest, Juliet Sison, with fifty-five other persons
including Victor Corpus, was charged with subversion before Military
Commission No. 6 (Case No. 55), as shown in the charge sheet dated November 16, 1972.
It was alleged therein that the fifty-six accused, in 1968 and
for sometime prior and subsequent thereto, became and have remained officers
and ranking leaders of the CPP and the NPA, the CPP’s military arm, and the
CPP’s front organizations such as the Kabataang Makabayan (KM), Samahang
Demokratikong Kabataan (SDK), Malayang Samahan ng Magsasaka (MASAKA),
Student Alliance for National Democracy (STAND), Movement for
Democratic Philippines (MDP) and Malayang Kilusan ng Bagong Kababaihan
(MAKIBAKA), whose objective is the overthrow of the government for the
purpose of establishing a totalitarian regime and placing the government under
the control and domination of an alien power.
It was specified that the accused engaged in extensive
indoctrination, agitation and promotion of rallies (ten instances) and in
propagandas, speeches, teach-ins, messages, lectures, all intended to promote
the communist pattern of subversion (eleven instances).
The same charge sheet indicated that the accused rose publicly
and took up arms against the government, engaging in war against the forces of
the government and committing serious violence (eight instances).
Juliet Sison was pinpointed as a ranking leader of the Kabataang
Makabayan operating in the Bicol region, helping her husband Jose as KM
chairman and editing the periodical Ang Bayan in Isabela in 1971-72
(Annex 3 of Return).
Jose Ma. Sison, with Juanito Canlas, Cesario Diego, Saturnino
Ocampo, Antonio Liao, Mila Roque, Alfredo Granada, Ramon Isberto, Ester Ceniza
and Evelyn Sarmiento were charged with subversion under Presidential
Decree No. 885 (which superseded Republic Act No. 1700) before Military
Commission No. 25 in Case No. 113 as shown in the charge sheet dated October
3, 1978.
It was alleged that the ten accused, in or about 1968 and for
sometime prior and subsequent thereto and continuously thereafter, in Capas,
Tarlac and elsewhere in the Philippines, wilfully organized and joined as
officers and ranking members of the CPP and the NPA for the purpose of
overthrowing the government through armed revolution, violence and subversion
with the covert assistance and support of a foreign power in order to establish
therein a totalitarian regime subject to alien control and domination (Annex 4
of Return).
In the rebellion case, Case No. SMC-1-1, the Sison spouses and
the Buscayno spouses assailed the jurisdiction of the military tribunal to try
civilians like them.
On January 3, 1979, the Sison spouses, together with the
Buscayno spouses, Peter Mutuc, Edgar Pilapil, Eduardo Lingat, Joaquin Rivera,
Leonila Lumbang and Juanito Canlas, filed in this Court a petition for habeas
corpus, prohibition and mandamus (L-49579).
That petition, like Buscayno’s petition in L-47185, was dismissed
in this Court’s decision dated January
15, 1981 (102 SCRA 33).
The instant case. – On October
2, 1981. Buscayno and the
Sison spouses filed the instant omnibus, catchall petition for habeas corpus,
prohibition and mandamus couched in repetitious, involuted and
obfuscatory verbiage.
They prayed that the decision of Military Commission No. 2 dated May 4, 1981, convicting Buscayno of
subversion and murder and sentencing him to death by firing squad, be declared
void because he was denied his constitutional right to present evidence and
that he be released from detention.
They also prayed that the charges of rebellion and subversion be
dismissed for being in contravention of the rule on double jeopardy, that
Military Commissions Nos. 1, 6 and 25 be enjoined from proceeding with the
trial of the petitioners and that the petitioners be
released. They also prayed that they be
granted bail.
The petitioners also asked for the issuance of a temporary
restraining order, enjoining the three Commissions from trying the petitioners,
enjoining Military Commission No. 1 from continuing with the perpetuation of
testimonies and from requiring the petitioners to attend the perpetuation
proceedings and enjoining the Review Board-AFP from reviewing the decision in
the subversion and murder cases.
Habeas
corpus and petitioners’ release on bail. – This is Buscayno’ s
third petition for habeas corpus and the second petition of the Sison
spouses. The ultimate issue is whether
they are legally detained. We find that
they have not been illegally deprived of their liberty and that there is no justification
to order their release.
Proclamation No. 2045 dated January 17, 1981, which terminated martial law, sanctions
the continued confinement of the petitioners.
It provides (77 OG 441):
“x x x Now, therefore, I, Ferdinand E. Marcos,
President/Prime Minister of the Philippines,
x x x proclaim the termination of the state of martial law throughout the Philippines;
“Provided, that the call to the Armed Forces of the Philippines
to prevent or suppress lawless violence, insurrection, rebellion and
subversion shall continue to be in force and effect; and
“Provided, that in the two autonomous regions in
Mindanao, upon the request of the residents therein, the suspension of the
privilege of the writ of habeas corpus shall continue; and in
all other places the suspension of the privilege of the writ shall also continue
with respect to persons at present detained as well as others who may
hereafter be similarly detained for the crimes of insurrection or rebellion,
subversion, conspiracy or proposal to commit such crimes, and for all other
crimes and offenses committed by them in furtherance or on the occasion
thereof, or incident thereto, or in connection therewith;
“General Order No. 8 is also hereby revoked and the military
tribunals created pursuant thereto are hereby dissolved upon final
determination of cases pending therein which may not be transferred to the
civil courts without irreparable prejudice to the state in view of the rules on
double jeopardy, or other circumstances which render further prosecution of the
cases difficult, if not impossible;”
Proclamation No. 2045 explicitly provides that persons, like
petitioners who are under detention for rebellion and the capital offense of
subversion, cannot enjoy the privilege of the writ of habeas corpus. Because the privilege of the writ of habeas
corpus is suspended as to them, they are not entitled to bail (Lansang
vs. Garcia, L-33964, December 11, 1971 and eight other cases, 42 SCRA 448).
Review of rulings of the military commission.- Ordinarily, this Court cannot review the rulings and
proceedings of the military commission. The National Security Code,
Presidential Decree No. 1498, which was issued on June 11, 1978 (74 OG 11066),
provides in its sections 86(f) and 87(e) that what this Court can review are
the decisions of the Court of Military Appeals in cases appealed to it from the
military commission.
Generally, this Court does not exercise over military commissions
the supervisory jurisdiction which it possesses over civil trial courts whose
interlocutory rulings and decisions may be reviewed by this Court. (See Kuroda vs. Jalandoni,
83 Phil. 171; Martelino vs. Alejandro, L-30894, March 25, 1970, 32 SCRA 106).
So, the issue as to whether Buscayno was denied his
constitutional right to present evidence should first be passed upon by the
reviewing military authority and not by this Court. The propriety of the perpetuation proceedings
in the rebellion case and the conduct of the trial in the Commission cannot at
this stage be passed upon by this Court.
We have definitively ruled that the petitioners can be tried by
the military commissions and that their cases are within the jurisdiction and
competence of military tribunals.
Nevertheless, two legal issues regarding double jeopardy and the alleged
repeal of the Anti-Subversion Law may be resolved in the interest of justice,
to dissipate any uncertainty and for the guidance of the parties.
Alleged repeal of the Anti-Subversion Law. – Juliet de Lima-Sison contends that her
criminal liability for subversion was extinguished when Presidential Decree
No. 885 (which took effect on May 11,
1976, 72 OG 3826) repealed Republic Act No. 1700. This contention is bereft of merit.
That decree, which is the Revised Anti-Subversion Law, in
repealing or superseding Republic Act No. 1700, expressly provides in its
section 7 that “acts committed in violation” of the former law before
the effectivity of the said decree “shall be prosecuted and punished in
accordance with the provisions of the former Act” and that nothing in the
said decree “shall prevent prosecution of cases pending for violation
of” Republic Act No. 1700. That
saving or transitory clause is reenacted in section 14(i) of the National
Security Code.
It is similar to article 366 of the Revised Penal Code which
provides that felonies and misdemeanors committed prior to the effectivity of
the Revised Penal Code shall be punished in accordance with the old Penal Code
and the laws in force at the time of their commission.
The fact that Presidential Decree No. 885 does not mention the CPP does not mean that that party is no longer regarded as
a subversive organization. The purpose
of the party is the decisive factor in determining whether it is a subversive
organization.
The issue of double jeopardy. – The petitioners invoke their constitutional
right not to be put twice in jeopardy of punishment for the same offense. As may be gleaned from section 9, Rule 117 of
the Rules of Court, “same offense” means the offense charged, or an
attempt to commit it or a frustrated stage thereof, or “any offense which
necessarily includes or is necessarily included in the offense charged in the
former complaint or information”.
For an accused to be in jeopardy, it is necessary (1) that a
valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction is filed against him; (2) that the charge is
filed in a court of competent jurisdiction and (3) that after he had pleaded to
the charge, he was convicted or acquitted or the case against him was dismissed
or otherwise terminated without his express consent (People vs. Pilpa,
L-30250 September 22, 1977, 79 SCRA 81).
To be in jeopardy, the case against the accused must be
terminated by means of a final conviction, acquittal or dismissal without his
express consent. If the case is not yet
terminated, then jeopardy does not set in.
After the accused has been put in jeopardy, the filing against him of
another charge for the same offense or for an attempt or frustrated stage thereof
or for any offense which necessarily includes or is included in the offense
originally charged places him in double jeopardy.
That is forbidden by section 22, Article IV of the Constitution
or by the rule against double jeopardy: nemo
bis punitur pro eodem delicto (no one is twice
punished for the same offense) or non bis in idem which is analogous to res
judicata in civil cases.
As stated earlier, Buscayno was charged with subversion together
with Aquino in a 1973 charge sheet.
Jose Ma. Sison was charged with subversion in a 1978 charge
sheet. His wife, Juliet de Lima, was
charged with subversion in a 1972 charge sheet. The three petitioners were all charged with rebellion
in an amended charge sheet dated November
8, 1977. Only the
subversion case against Buscayno was decided but the decision is still subject
to review.
Because no case against the petitioners has been terminated, it
is at once evident that they cannot invoke the rule on double jeopardy. The petitioners have not yet been placed in
jeopardy.
In Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746, Agaton Bulaong was charged
with rebellion in the Laguna Court of First Instance and later with subversion
in the Manila Court of First Instance in connection with his activities as an officer
of the CPP and HMB. He was convicted of
rebellion by the Laguna court. The Court
of Appeals affirmed the judgment of conviction. He appealed to this Court. The subversion case was still pending in the Manila
court.
In this Court, he contended that because rebellion is an offense
cognate with subversion and that the two informations contain the same facts, he could not be tried for rebellion and subversion
without being placed twice in
jeopardy for the same acts.
It was held that the defense of double jeopardy should be
interposed by Bulaong in the subversion case. He could not plead double jeopardy in the rebellion
case because the subversion case had not yet been terminated. (See Silvestre vs. Military Commission No.
21, L-46366, March 8, 1978, 82 SCRA 10; Jimenez vs. Military Commission No. 34,
G.R. No. 54577, January 15, 1981, 102 SCRA 39).
Petitioners contend that rebellion is an element of the crime of
subversion. That contention is not
correct because subversion does not necessarily include rebellion. Subversion, like treason, is a crime against
national security. Rebellion is a crime
against public order.
Republic Act No. 1700 (quoted in full in People vs. Ferrer,
L-32613-14, December 27, 1972, 48 SCRA 382), which took effect on June 20, 1957
and which outlaws the Communist Party and similar associations because their
existence and activities constitute a clear, present and grave danger to
national security, punishes the following acts:
1. By arresto mayor,
anyone who knowingly, wilfully and by overt acts affiliates himself with, becomes or remains a member of the Communist
Party or its successor or any subversive association as defined in the
law. Prision correccional shall
be imposed for a second conviction. Prision
mayor shall be imposed for subsequent convictions.
2. By prision mayor to
death, being an officer or a ranking leader of the Communist Party
or of any subversive association as defined in the law.
3. By
prision mayor to death, any member of the Communist Party or
similar subversive association who takes up arms against the government.
4. By prision
correccional to prision mayor, one who conspires with any other
person to overthrow the Government of the Republic of the Philippines or the
government of any of its political subdivisions by force, violence, deceit,
subversion or other illegal means for the purpose of placing such Government or
political subdivision under the control and domination of any alien power.
5. By prision
correctional, any person who knowingly furnishes false evidence in any
action brought under the Anti-Subversion Law.
As already noted, Republic Act No. 1700 was superseded by
Presidential Decree No. 885 which reads as follows:
PRESIDENTIAL
DECREE NO. 885
OUTLAWING SUBVERSIVE ORGANIZATIONS,
PENALIZING MEMBERSHIP THEREIN AND FOR OTHER PURPOSES
Whereas, there are certain associations or organizations in the
Republic of the Philippines, not covered by Republic Act No. 1700, which are
seeking to overthrow the Government of the Republic of the Philippines or to
dismember a portion thereof; and
Whereas, in order to protect the Government of the Republic of
the Philippines and the people, it has become necessary to revise Republic Act
No. 1700 to broaden its coverage;
Now, therefore, I, Ferdinand E. Marcos, President of the Philippines
by virtue of the powers in me vested by the Constitution, do hereby decree as
follows:
Section 1. Short Title– This decree shall be
known as the Revised Anti-Subversion Law.
Sec. 2.
Subversive Associations and Organizations – Any association,
organization, political party, or group of persons organized for the purpose of
overthrowing the Government of the Republic of the Philippines or for the
purpose of removing from the allegiance to said Government or its laws, the
territory of the Philippines or any part thereof, with the open or covert
assistance or support of a foreign power or the open or covert support from a
foreign source of any association, group or person, whether public or private,
by force, violence, terrorism, arson, assassination, deceit or other illegal
means shall be considered and is hereby declared a subversive
organization. (As amended by Batas
Pambansa Blg. 31, effective on June 6, 1979 and P.D. No. 1736, Sept. 12, 1980.)
Sec. 3.
Penalties – (a) Members. – Whoever knowingly, wilfully and by overt
act affiliates with, becomes or remains a member of a subversive association
or organization as defined in Section 2 hereof shall be punished by arresto
mayor and shall be disqualified permanently from holding any public office,
appointive or elective, and from exercising the right to vote; in case of a
second conviction, the principal penalty shall be prision correccional;
and in all subsequent convictions the penalty of prision mayor shall be
imposed.
The following acts shall constitute prima facie evidence
of membership in any subversive association:
(1) Allowing himself to
be listed as a member in any book or any of the lists, records, correspondence,
or any other document of the organization;
(2) Subjecting himself
to the discipline of such association or organization in any form whatsoever;
(3) Giving financial contribution to such association
or organization in dues, assessments, loans, or in any other forms;
(4) Executing orders, plans or directives of any
kind of such association or organization;
(5) Acting as an agent, courier, messenger,
correspondent, organizer, or in any other capacity, on behalf of such
association or organization;
(6) Conferring with officers or other members of
such association or organization in furtherance of any plan or enterprise
thereof;
(7) Transmitting orders, directives, or plans of
such association or organization orally or in writing or any other means of
communication such as by signal, semaphore, sign or code;
(8) Preparing documents, pamphlets, leaflets,
books, or any other type of publication to promote the objectives and purposes
of such association or organization;
(9) Mailing, shipping, circulating,
distributing, or delivering to other persons any material or propaganda of any
kind on behalf of such association or organization;
(10) Advising, counselling, or in other way giving
instruction, information, suggestions, or recommendations to officers or
members or to any other person to further the objectives of such association or
organization;
(11) Participating in any way in the activities,
planning action, objectives, or purposes of such association or organization.
(b) Officers or Ranking Leaders. – If such member is an officer or a ranking
leader of any subversive association or organization as defined in Section 2
hereof, or if such member takes up arms against the Government, he shall be
punished by prision mayor
to death with all the accessory penalties provided therefor in the Revised
Penal Code.
(c) Deportation. – Any alien convicted under this decree shall
be deported immediately after he shall have served the sentence imposed upon
him.
Sec. 4.
False Testimony. – Any person who knowingly furnishes false
evidence in any action brought under this decree shall be punished by prision
correctional.
Sec. 5.
Sufficiency of Evidence. – Except as provided in Section 7 hereof, the
two-witness rule heretofore provided in Republic Act Numbered Seventeen
hundred is hereby obrogated and the accused may be convicted on the testimony
of one witness if sufficient under the rules of evidence, or on his confession
given in open court.
Sec. 6.
No Restriction of Thought.
– Nothing in this decree shall be interpreted as a restriction on
freedom of thought, of assembly and of association for purposes not contrary to
law as guaranteed by the Constitution.
Sec. 7.
Repealing Clause. – This decree supersedes Republic Act
Numbered Seventeen Hundred, but acts committed in violation thereof and before
the effectivity of this decree, shall be prosecuted and punished in accordance
with the provisions of the former Act.
Nothing in this decree shall prevent prosecution of cases pending for
violation of Republic Act Numbered Seventeen Hundred.
Sec. 8.
Sequestration of Property. – The sequestration of the property of any
person, natural or artificial, engaged in subversive activities against the
Government and its duly constituted authorities, is
hereby authorized, in accordance with implementing rules and regulations as may
be issued by the Secretary of National Defense.
As used herein, the terms “sequester” and
“sequestration” shall mean the seizure of private property or assets
in the hands of any person or entity in order to prevent the utilization,
transfer or conveyance of the same for purposes inimical to national security,
or when necessary to protect the interest of the Government or any of its
instrumentalities. It shall include the
taking over and assumption of the management, control and operation of the
private property or assets seized.
Sec. 9.
Effectivity. – This decree shall take effect thirty days
after its publication in the Official Gazette.
Done in the City of Manila, this 3rd
day of February, in the year of Our Lord, nineteen hundred and seventy-six.
Presidential Decree No. 885 is incorporated in section 14 of the
National Security Code.
On the other hand, rebellion or insurrection is committed by
rising publicly and taking arms
against the Government for the purpose of removing from the allegiance to said
Government or its laws, Philippine territory or any part thereof, or any body
of land, naval or other armed forces, or of depriving the Chief Executive or
the Legislature, wholly or partially, of any of their powers or prerogatives.
Rebellion is distinct from participation or membership in an
organization committed to overthrow the duly constituted government (People vs.
Hernandez, 120 Phil. 191, 220).
The petitioners were accused of rebellion for having allegedly
undertaken a public uprising to overthrow the government. In contrast, they were accused of subversion
for being allegedly officers and ranking members of the Communist Party
and similar subversive groups. The
alleged overt acts of resisting the armed forces were only incidental to the
main charge of being leaders of subversive or revolutionary organizations
collaborating with an alien power to make the country a satellite thereof, like
Cuba, North
Korea and North
Vietnam in relation to Soviet Russia.
The issue on double jeopardy raised by the petitioners was
resolved by this Court in People vs. Liwanag alias Linda Bie, L-27683, October
19, 1976, 73 SCRA 473. In that case,
Silvestre Liwanag was charged in 1960 with subversion for being an officer and
ranking member of the CPP and HMB.
He filed a motion to quash the information on the ground of
double jeopardy because he had already been convicted of rebellion based
on the same overt acts allegedly constituting the crime of subversion. The trial court denied the motion. After trial, he was convicted and sentenced
to reclusion perpetua. He
appealed to this Court where he again raised the issue that the charge of
subversion placed him in double jeopardy.
It was held that there was no double jeopardy because Liwanag was
convicted of rebellion for acts committed before the Anti-Subversion Law took
effect while the subversion charge referred to his act of having remained an
officer and ranking leader of the CPP and HMB from the time the Anti-Subversion
Law took effect on June 20, 1957 up to his capture in 1960. Moreover, the crime of subversion is distinct
from rebellion.
In the instant case, the rebellion charge against the petitioners
embraced the acts committed by them on or about February 4, 1972 and during the period from August, 1973
to February, 1974. The subversion charge
against Buscayno involved his acts committed in 1965, 1967, 1969, 1970 and
1971. The subversion charge against the
Sison spouses referred to their acts committed in 1968 and for sometime prior
and subsequent thereto. The common
denominator of the rebellion and subversion charges is that the petitioners
committed overt acts as alleged communists or leftists. The overt acts in the two charges are
different.
Rebellion is an offense that has existed in the Penal Code for a
long time. It may be committed by
noncommunists without collaborating with the agents of an alien power. In contrast, the crime of subversion came
into existence when the communists sought to dominate the world in order to
establish a new social, economic and political order.
The constitutionality of the Anti-Subversion Law was upheld in
People vs. Ferrer, L-32613-14, December
27, 1972, 48 SCRA 382 and 56 SCRA 793. Long before the passage of the
Anti-Subversion Law membership in illegal associations has been penalized (Art.
146, Revised Penal Code).
A statute which punishes membership in a party or association
that advocates the overthrow or destruction of the government by force or
violence is justified on the ground of self-preservation (Dennis vs. U.S.,
341 U.S. 494,
509; Scales vs. U.S.,
367 U.S. 203).
The unavoidable conclusion is that in the present posture of the
pending cases against the petitioners their plea of double jeopardy cannot be
sustained.
WHEREFORE, the petition is dismissed. The restraining order is lifted. No costs.
SO ORDERED.
Barredo, Fernandez, Guerrero,
and De Castro, JJ., concur.
Fernando,
concurring and dissenting opinion.
Teehankee, J., dissents in
separate opinion.
Makasiar, J., in the result.
Concepcion, Jr., J., no part.
Abad Santos, J., with the same
reservation made by J. Melencio-Herrera.
* The habeas corpus
case filed in behalf of Benigno S. Aquino, Jr., L-46909,
was dismissed on the ground of abandonment in this Court’s resolution of January 8, 1981.
The habeas corpus
case filed by Jose Luneta and other defendants in the rebellion case, No. MC-1-92 or SMC-1-1 of Special Military
Commission (Case No. MC-24-9) was dismissed in this Court’s decision of January 16, 1981 (Luneta vs.
Special Military Commission No. 1, L-49473, 102 SCRA
56).
The habeas corpus
case filed by Othoniel Jimenez, who was charged with subversion in Military
Commission No. 34, was dismissed in this Court’s decision of January 15, 1981 (G.R. No. 54577,
January 15, 1981, 102 SCRA 39).
The habeas
corpus case filed by Saturnino Ocampo and four others against Military
Commission No. 25 in connection with the subversion charge against them and
Jose Ma. Sison, G.R. No 50155, is still pending.
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concurring and
dissenting opinion
FERNANDO, C.J.:
With regret and with due recognition that with the approach taken
the conclusion reached by the Court expressed with his usual clarity in the
able ponencia of Justice Aquino was inevitable, I find myself unable to
agree with my brethren on the question of the scope of our power of review over
military tribunals, especially so where the accused are civilians. Moreover, while it is not inaccurate to
state that the suspension of the privilege of the writ of habeas corpus carries
with it the suspension of the right to bail,[1] I am
for a reexamination of such a doctrine. Moreover, even if I did not succeed, it is my submission that there may
be a question of unconstitutional application of such a principle if,
notwithstanding the advanced stage of pregnancy of Mrs. Juliet Sison, she is
not released on bail.
I am led to concur in the result primarily on the concept of the
law of the case, the present petitioners having failed in their previous
petitions to transfer their cases to civilian tribunals.[2] I
likewise concur with my brethren on the lack of merit in the petition insofar
as it contended that there was double jeopardy. Also, while being the lone dissenter in People v. Ferrer,[3]
where the validity of the Anti-Subversion Act was challenged, I must perforce
yield to the prevailing doctrine that it is not unconstitutional.
Hence this separate concurring and dissenting opinion.
1. On the question of the
power of this Court to review actuations of military tribunals, I adhere to our
decision in Go v. Gen. Olivas.[4] That
petition for habeas corpus was dismissed on the basic principle that no
jurisdictional question was raised by the person detained. Nonetheless, this Court made clear what are
the guiding principles to determine its jurisdiction whenever the actuation of
a military tribunal is challenged before it. Thus: “1. This Court in
Aquino v. Military Commission No. 2 ruled that there is no constitutional
objection to military tribunals conducting trials of civilians for certain
specified offenses, among which is kidnapping. That does not preclude the judiciary, of course, from granting in
appropriate cases applications for the return of habeas corpus. There is, however, this limitation. The jurisdictional question must be squarely
raised. That is a doctrine implicit in
the In re Carr 1902 decision, the
opinion being penned by Justice Willard. The leading case of Payomo v. Floyd, a 1922 decision, made it
explicit. As set forth by its ponente,
Justice Street: ‘The next point to be
observed upon it that, where the detained person is held in restraint by virtue
of a judgment rendered by a military or naval court, tribunal, or officer, no
court entertaining an application for the writ of habeas corpus has authority
to review the proceedings of that tribunal, court, or officer in the sense of
determining whether the judgment was erroneous. The only question to be considered is whether the court,
tribunal, or officer rendering the judgment had jurisdiction to entertain the
case and render judgment at all. As was
said by the Supreme Court of the United States in a case where the writ of
habeas corpus had been sued out to liberate a person detained by virtue of the
sentence of a court-martial, the civil
courts exercise no supervisory or correcting power by the writ of habeas corpus
over the proceedings of a court-martial and no mere errors in their proceedings
are open to consideration. “The
single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be denied and the
petitioner remanded. That wanting, it
must be sustained and the petitioner discharged.” . . . As otherwise
stated the rule is that the proceedings of a military or naval court cannot be
reviewed upon habeas corpus when it appears that such tribunal had jurisdiction
over the offense charged and that the offender was a person amenable to its
authority.’ The first Supreme Court decision after the Liberation in 1945,
Cabiling v. Prison Officer, reiterated such a doctrine. As set forth in the opinion of Chief Justice
Moran: ‘It is alleged in the petition
for habeas corpus filed in his behalf that he is illegally detained, the
General Court-Martial having no jurisdiction to try and convict him for the
crime charged. . . . [The only] question to be determined is whether or not the
General Court-Martial was vested with jurisdiction to try and convict the
petitioner for the crime of murder. There seems to be no doubt that it had such jurisdiction. According to Article of War 12 “General
Courts-Martial shall have power to try any person subject to military law for
any crime or offense made punishable by these articles, . . .” The
petitioner, being a staff sergeant of the Philippine Scouts, United States
Army, is a person subject to military law, under Article of War 2, and in time
of war, the crime of murder committed by a person subject to military law,
comes within the jurisdiction of a court-martial, in accordance with Article of
War 92.’ 2. What minimizes the difficulty facing a detained person, triable by
a military tribunal, is this categorical pronouncement by Justice Antonio,
speaking for the Court, in the aforesaid Aquino v. Military Commission
decision: ‘It is important to note here
that an accused being tried before a military tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself
and counsel, to be informed of the nature and cause of the accusation, to meet
the witnesses face to face, to have compulsory process to secure the attendance
of witnesses and the production of evidence in his behalf, and to be exempt
from being a witness against himself. As in trial before civil courts, the presumption of innocence can only
be overcome by evidence beyond reasonable doubt of the guilt of the accused. These tribunals, in general, are “bound
to observe the fundamental rules of law and principles of justice observed and
expounded by the civil judicature.” … There is, therefore, no
justification for petitioner’s contention that such military tribunals are
concerned primarily with the conviction of an accused and that proceedings
therein involve the complete destruction and abolition of petitioner’s
constitutional rights.’ Such being the case, the well-settled doctrine
announced as early as 1924 by Justice Malcolm in Conde v. Rivera and
subsequently reiterated, the latest case being Gumabon v. Director of Prisons
that came out in 1971, to the effect that a denial of a constitutional right
may oust the Court of jurisdiction, finds pertinence. In this petition, however, counsel failed to invoke such a principle,
relying instead on Jovito Go not falling within Proclamation No. 1081. There is plausibility to the argument that
under the ruling in Aquino v. Ponce Enrile, the offense for which Go was
indicted is not included in the crime of insurrection or rebellion which
supplied the basis for preventive detention under martial law
proclamation. That is not decisive of
the controvery before us in view of the fact, as mentioned above, that a
military tribunal is vested with jurisdiction where the prosecution is one for
kidnapping.”[5]
2. I am for the
reexamination of the doctrine that the suspension of the privilege of habeas
corpus carries with it the suspension of the right to bail. That was my view as one of the counsel in
Hernandez v. Montesa,[6] heard
and thereafter decided in one opinion with Nava v. Gatmaitan. As set forth in the dissenting opinion of
Justice Teehankee, the majority was of that view but unfortunately there was
one vote short of the necessary six affirmative votes at that time. It is quite understandable if I find
nothing objectionable in his opinion when he cited extensively from Tañada and
Fernando on the Constitution of the Philippines Annotated.[7]
3. A few additional
observations. The petition made mention
of the efforts of counsel to have the President transfer the cases to the civil
courts. The success of such endeavor
would be for me a cause for gratification. It would mean that the lifting of martial law would likewise put an end
to the jurisdiction of military tribunals over civilians, necessitated by the
past period of emergency. At any rate,
to the extent that the evidence before respondent Military Commission found in
the records was offered with due regard to the constitutional rights of an
accused, it could still be relied upon by the court to which the cases may be
transferred. In the event that such
efforts would not be attended to with success, it would be desirable, to my way
of thinking, if there be only one military commission to continue with the
trial of petitioners. There is this
last point. The opinion of the United
States Supreme Court in Dennis v. United States[8] and
Scales v. United States[9] were
cited in the ponencia. The later
case, as made clear in the opinion of Justice Harlan, while upholding the
applicability of the Smith Act likewise emphasized that such statute requires
proof of a specific intent to bring about the violent overthrow of the
government and proof of “active” as distinguished from mere
“nominal” or “passive,” membership. Nonetheless, the more liberal view which for
me expresses the current state of American constitutional law is that set forth
in Brandenburg v. Ohio[10]
decided in 1969 at the end of the last term of the Warren Court. To cite from the opinion of the United
States Supreme Court: “These later
decisions have fashioned the principle that the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such advocacy is
directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.”[11]
[1]
Lansang v. Garcia, L-33964, December 11, 1971, 42 SCRA 448.
[2]
Cf. Buscayno v. Enrile, L-47185, January 15, 1981, 102 SCRA 7 and Jose
Ma. Sison, Juliet Sison, Mila Buscayno, et al. v. Enrile, L-49579,
January 15, 1981, 102 SCRA 33.
[3]
L-32613, December 27, 1972, 48 SCRA 382.
[4]
L-44989, November 29, 1976, 74 SCRA 230.
[5]
Ibid, 234-236.
[6]
90 Phil. 172 (1971).
[7]
Fourth edition, 531-532 (1953).
[8]
341 US 494 (1951).
[9]
367 US 203 (1961)
[10]
395 US 444.
[11]
Ibid, 447. Cf. Strong, Fifty
Years of “Clear and Present Danger.” Supreme Court Review 41 (1969).
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Dissenting opinion
TEEHANKEE, J.:
The principal questions presented in the case at bar assert (1)
the constitutional right of civilians like petitioners to the judicial process
of civilian trials by the regular civil courts composed of judges trained in
the law whose objectivity and independence are protected by tenure and
undiminished salary and are nurtured by the judicial tradition as against the
executive process of trial by military tribunals composed of military officers,
specially so with the lifting of martial law on January 17, 1981 through the
President’s Proclamation No. 2045, and (2) petitioners’ constitutional right to
bail unless it could be shown that evidence of guilt for the capital offense
of subversion for which they are charged were strong.
I dissent from the majority decision’s dismissal of the petition
and denial of these constitutional rights invoked by them.
I. On the first question of the right of
civilians to trial by judicial process, I dissent on the grounds stated in my
separate opinions in Aquino vs. Military Commission No. 2[1]
and in the latest cases this year of Buscayno
vs. Enrile[2], Sison vs. Enrile[3] and Luneta vs. Special Military
Commission No. 1[4].
These cases were all decided before the President’s issuance of
Proclamation No. 2045 on January 17, 1981 revoking his previous proclamations
of martial law (Nos. 1081 and 1104) as well as General Order No. 8, and
directing that “the military tribunals created pursuant thereto are hereby
dissolved upon final determination of cases pending therein which may not be
transferred to the civil courts without irreparable prejudice to the state in
view of the rules on double jeopardy, or other circumstances which render
further prosecution of the cases difficult, if not impossible.”
In Sison particularly, the Court in dismissing the
petition, unanimously noted that “(T)he President of the Philippines has
announced that the military tribunals are being phased out. It is reported that the Ministry of Justice
is now taking steps to transfer cases pending before the military tribunals to
the civil courts. Hence, the issues
raised by the petitioners have become moot and academic.”
With the official lifting of martial law under Proclamation No.
2045 and the revocation thereunder of General Order No. 8 creating military
tribunals, and pursuant to the Court’s above-quoted pronouncement in Sison
on the phaseout of military tribunals, there is no longer any justification for
continuing to subject petitioners-civilians to trial by military commissions in
derogation of the judicial power vested exclusively in the civil courts.
As stressed in my separate opinion in Aquino, civilians
like petitioners placed on trial for 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. Military commissions or
tribunals are not courts and do not form part of the judicial system. Since we are not enemy-occupied territory nor
are we under a military government, 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.
As was held in a leading U.S. Supreme Court case[5],
“the assertion of military authority over civilians [discharged servicemen]
cannot rest on the President’s power as Commander-in-Chief or on any theory of
martial law.” The late Justice Hugo Black speaking for that Court aptly
pointed out that “the presiding officer at a court martial [or military
commission] 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,” and
“(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 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.”
Finally, it should be noted that there has been no showing by
respondents that the cases against petitioners fall within the only
exception provided in Proclamation No. 2045[6]
wherein the military tribunals which are therein dissolved may make a “final
determination,” to wit, “cases pending therein which may
not be transferred to the civil courts without irreparable
prejudice to the State in view of rules on double jeopardy, or other
circumstances which render further prosecution of the cases difficult,
if not impossible.” Certainly, neither the respondents nor the
State claim, much less have shown, that the transfer of petitioners’ cases to
the civil courts would result in “irreparable prejudice” to the
State because of double jeopardy or that such transfer to the civil courts
would render further prosecution “difficult, if not impossible” in
the face of petitioners’ assertion and insistence that the military tribunals
have no jurisdiction over them as civilians.
II. On the second question on the right of
petitioners to bail, absent a showing of strong evidence of guilt of the
capital offense of subversion, notwithstanding the saving clause in Proclamation
No. 2045 maintaining the suspension of the privilege of the writ of habeas
corpus as to them as persons detained for rebellion and subversion, I
reiterate my adherence to the majority holding in the leading 1951 cases of Nava
vs. Gatmaitan and Hernandez vs. Montesa[7]
(although it failed one vote short of the required majority of six affirmative
votes at the time) as expounded by then Chief Justice Ricardo Paras and
Associate Justice (later Chief Justice) Cesar Bengzon and Associate Justices
Pedro Tuason, Alex Reyes and Fernando Jugo that after formal indictment in
court by the filing against them of an information charging rebellion with
multiple murder, etc., accused persons covered by the proclamation of
suspension of the privilege of the writ of habeas corpus are
entitled to the right to bail. As
stressed by then Chief Justice Paras, “(T)he right to bail, along with the
right of an accused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have compulsory process to
secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his
innocence and obtain acquittal. If it be
contended that the suspension of the privilege of the writ of habeas corpus
includes the suspension of the distinct right to bail or to be provisionally
at liberty, it would a fortiori imply the suspension of all his other
rights (even the rights to be tried by a court) that may win for him ultimate
acquittal and, hence, absolute freedom.
The latter result is not insisted upon for being patently
untenable.”
I cannot improve on the presentation of the rationale of the
failed majority in the cited right to bail cases as made in the oft-cited work
of Tañada and Fernando, and herewith reproduce the same:
“In Nava v. Gatmaitan and Hernandez v. Montesa,
the question presented before the Supreme Court was the effect on the right to
bail of the suspension of the writ of habeas corpus. For lack of one vital vote, to make a
majority of six as required by the Judiciary Act, the Supreme Court missed an
opportunity to speak in unmistakable language that constitutional rights mean
what they say and that the Constitution is supreme, emergency to the contrary
notwithstanding. Respondent judges in
the above two petitions ruled that the petitioners were included among those
coming within the terms of the suspension of the privilege of the writ of
habeas corpus and were for that reason not entitled to their constitutional
right to bail. Upon the matter being
taken before the Supreme Court, five of the nine Justices who voted on the
question were of the opinion that petitioners under the Constitution have the
right to bail unless it could be shown that evidence of guilt for the capital
offense of which they were charged were strong.
In thus arriving at that conclusion, the above five justices merely
applied literally the terms of the controlling constitutional provision.
“As Chief Justice Paras expressed it:
‘* * * The privilege of the writ of habeas corpus and the right to
bail guaranteed under the Bill of Rights are separate and co-equal. If the intention of the framers of the
Constitution was that the suspension of the privilege of the writ of habeas
corpus carries or implies the suspension of the right to bail, they would have
very easily provided that all persons shall before conviction be bailable by
sufficient sureties, except those charged with capital offenses when evidence
of guilt is strong and except when the privilege of the writ of habeas corpus
is suspended. As stated in the case of
Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the Constitution limited the
suspension to only one great right, leaving the rest to remain forever
inviolable.’
“Justice Tuason had no doubts on the matter either:
‘To the plea that the security of the State would be jeopardized by
the release of the defendants on bail, the answer is that the existence of
danger is never a justification for courts to tamper with the fundamental
rights expressly granted by the Constitution.
These rights are immutable, inflexible, yielding to no pressure of
convenience, expediency or the so-called ‘judicial statesmanship.’ The Legislature
itself cannot infringe them, and no court conscious of its responsibilities and
limitations would do so. If the Bill of
Rights are incompatible with stable government and a menace to the Nation, let
the Constitution be amended, or abolished.
It is trite to say that, while the Constitution stands, the courts of
justice as the repository of civil liberty are bound to protect and maintain
undiluted individual rights.’
“From Justice Bengzon. . . .
there is a cogent
and forceful presentation of the argument that respect for constitutional
rights would aid in the fight against Communism in the Philippines.
‘And in my opinion, one of the surest means to ease the uprising is
a sincere demonstration of this Government’s adherence to the principles of the
Constitution together with an impartial application thereof to all citizens,
whether dissidents or not. Let the
rebels have no reason to apprehend that their comrades now under custody are
being railroaded into Muntinglupa, without benefit of those fundamental
privileges which the experience of the ages has deemed essential for the
protection of all persons accused of crime before the tribunal of
justice. Give them the assurance that
the judiciary, ever mindful of its sacred mission, will not, thru faulty or
misplaced devotion, uphold any doubtful claims of Governmental power in
diminution of individual rights, but will always cling to the principles
uttered long ago by Chief Justice Marshall that when in doubt as to the
construction of the Constitution, ‘the Courts will favor personal liberty.’ (Ex
parte Burford, 3 Cranch, & U.S., Law Ed. Book 2, at p. 495).”[8]
III. A final word on the statements in the main
opinion[9]
that would deny to this Supreme Court the right to “review the rulings and
proceedings of the military commission” or at best limit such review
“to decisions of the Court of Military Appeals[10]
in cases appealed to it from the military commission.” It must first be
noted that these statements do not carry the affirmance of a majority of the
Court that would unsettle or overthrow this Court’s consistent exercise of its
judicial power and jurisdiction through the prerogative writs of certiorari
and prohibition or habeas corpus over cases, including military
commissions (in whatever stage of the proceedings), where a violation or denial
of constitutional rights is asserted by the aggrieved party, although not
always with successful results. In this
very case, the Court did again exercise, with the required concurrence of at
least eight (8) members, its jurisdiction over proceedings in the military
commissions per its Resolution of October 22, 1981 through the issuance of a
temporary restraining order enjoining respondent military commissions
“from proceeding with the trial of petitioners …. until otherwise
ordered by the Court.”
[1]
63 SCRA 546 (May 9, 1975).
[2]
L-47185 (January 15, 1981), 102 SCRA 7,
21.
[3]
L-49579 (January 15, 1981), 102 SCRA 33, 38.
[4]
102 SCRA 56, 68 (January 16, 1981).
[5]
Toth vs. Quarles, 350 U.S. 5 (1953), notes in brackets supplied.
[6]
Quoted on pages 10-11, main opinion.
[7]
Jointly decided with Angeles vs. Abaya and reported in 90 Phil. 172.
[8]
Op. cited, 4th Ed., pages 531-532.
[9]
At pages 11-12.
[10]
The writer is not even aware that such Court of Military Appeals has been
actually organized and is actually functioning.