LT. GENERAL LISANDRO ABADIA IN HIS CAPACITY AS CHIEF OF STAFF OF THE AFP, MAJ. GENERAL ARTURO ENRILE, IN HIS CAPACITY AS COMMANDING GENERAL OF THE PHILIPPINE ARMY, AND COL. DION…

Private respondent Lt.
Col. Marcelino Malajacan was arrested on April 27, 1990 in connection with the
December 1989 coup attempt. He was
brought to the ISG Detention Center in Fort Bonifacio, Makati where he was detained
for nine months without charges. On
January 30, 1991, a charge sheet was filed against private respondent by the
office of the Judge Advocate General alleging violations of the 67th, 94th and
97th Articles of War for Mutiny, Murder and Conduct Unbecoming an
Officer and a Gentleman, respectively. A petition for habeas corpus was filed by the private respondent
with the Court of Appeals on March 7, 1991 which was, however, dismissed by the
said court’s Fourth Division in a decision promulgated on June 28, 1991 on the
ground that pre-trial investigation for the charges against the respondent was
already ongoing before a Pre-Trial and Investigative (PTI) Panel of the Judge
Advocate General’s Office (JAGO). The pertinent
portions of the Court of Appeals’ decision state:

As in the Elepante case also, we cannot at this time order the
release of petitioner on a writ of habeas corpus without giving the military
from here on a reasonable time within which to finish the investigation of his
case and determine whether he should be formally charged before the court
martial or released for insufficiency of evidence, especially since, as
manifested by respondents, petitioner has already filed his counter-affidavits
to those supporting the charge sheet against him and that the matter is now
ready for resolution.

WHEREFORE, the instant petition is hereby DISMISSED, but the
incumbent Chief of Staff of the Armed Forces of the Philippines is directed to
take appropriate action in petitioner’s case with all deliberate speed,
consistent with his constitutional right to a speedy disposition of his case.^[1]

Three months after these charges were filed, the Pre-Trial
Investigative Panel came out with a Resolution dated 27 May 1991 finding no
evidence of direct participation by the private respondent in the December 1989
coup. Said panel nonetheless
recommended that respondent be charged with violation of Article 136 of the
Revised Penal Code (Conspiracy and Proposal to Commit Rebellion or
Insurrection) and the 96th Article of War in relation to the 94th Article of
War.^[2]
Consequently, all existing charges against respondent were dismissed and a new
charge for violation of Article of War No. 96 for Conduct Unbecoming an Officer
and a Gentleman for having allegedly been involved in a series of conferences
with other military officers for the purpose of overthrowing the government,
carrying with it the penalty of dismissal from service was filed with the
General Court Martial (GCM) No. 8.

Additionally, the Judge Advocate General’s Office endorsed the
filing of charges for violation of Article 136 of the Revised Penal Code to the
Quezon City Prosecutor’s Office on October 29, 1991.^[3] The
City Prosecutor eventually came out with a resolution dated February 4, 1992,
dismissing the charges.^[4]

Upon private respondent’s arraignment (and before entering his
plea) in General Court Martial No. 8 for violation of the 96th Article of War,
private respondent entered a special motion to dismiss the case on grounds of
prescription under AW 38. The said
article states:

“Art. 38. As to time. – Except for desertion, murder or rape
committed in time of war, or for mutiny or for war offenses, no person subject
to military law shall be liable to be tried or punished by a court martial for
any crime of offense committed more than two years before the arraignment of
such person. x x x.”
(Underlining supplied)

The private respondent contended that the offense was supposed to
have been committed between August to November, 1989, more than two years
before his arraignment on April 22, 1992. Favorably resolving the motion to dismiss for being
“substantial…meritorious and legally tenable,” the General Court
Martial dropped the last remaining charge against private respondent.^[5]
On April 23, 1992, the Assistant Trial Judge Advocate submitted a report to the
Chief of Staff quoting the Resolution of GCM No. 8 for
“info/notation”.

On May 27, 1992 respondent filed a second petition for habeas corpus before the Court of Appeals where he
assailed his continued detention at the ISG Detention Center in spite of the
dismissal of all the charges against him. He contended that his continued confinement under the circumstances
amounted to an “illegal restraint of liberty” correctable only by the
court’s “issuance of the high prerogative writ of habeas corpus.”^[6]

In a Resolution dated May 29, 1992, the 12th Division of the
Court of Appeals ordered petitioners Lt. General Lisandro Abadia, Chief of
Staff of the Armed Forces of the Philippines and Maj. General Arturo Enrile,
Commanding General of the Philippine Army “(t)o produce the person of Lt.
Col. Marcelino Q. Malajacan” and to show lawful cause for the latter’s
continued detention.^[7] On
June 3, 1992, respondent court promulgated the questioned decision issuing a
writ of habeas corpus and commanding herein petitioners to
release the private respondent. In its
decision, respondent court held:

While we recognize the fact that under military law, a decision of
a military tribunal, be it of acquittal or conviction, or dismissal is merely
recommendatory and subject to review by the convening authority and the
reviewing authority, We find a glaring hiatus in the rules and procedure being
followed by the military in general and the respondents in this particular
case, that inevitably leads to unbridled injustice, which if not corrected by
the proper authorities concerned including this court, will subject any member
of the military to indefinite confinement. The lack of time limit within which the Chief of Staff and/or reviewing
authority may approve or disapprove the order of dismissal on the ground of
prescription may be subject to abuse.^[8]

Consequently,
on June 11, 1992, petitioner filed a petition for review on certiorari under Rule 45 of the Rules of Court to annul and set aside
respondent court’s decision alleging that:

1.    The respondent court may not impose a time
frame for the Chief of Staff to act on the respondent’s case where the law
itself provides none; and,

2.    The Resolution of June 3, 1992 contravenes a
previous decision by a co-equal body, the Special Fourth Division of the Court
of Appeals which on September 27, 1991 dismissed respondent’s petition for habeas
corpus.

We disagree.

In the context of the constitutional protection guaranteeing fair
trial rights to accused individuals particularly the Right to a Speedy Trial,
we cannot accept petitioners’ submission that the absence of any specific
provision limiting the time within which records of general courts martial
should be forwarded to the appropriate reviewing authority and for the
reviewing authority to decide on the case would deny private respondent – or
any military personnel facing charges before the General Courts Martial, for
that matter – a judicial recourse to protect his constitutional right to speedy
trial. What petitioners suggest is
untenable. In the case at bench, the
records of the case may indefinitely remain with the General Court Martial, and
our courts, because of a procedural gap in the rules, cannot be called upon to
ascertain whether certain substantive rights have been or are being denied in
the meantime. That is not the spirit
ordained by inclusion of the second paragraph of Article VIII, Section 1 of the
Constitution which mandates the “duty of the Courts of Justice to settle
actual controversies involving rights which are legally demandable and
enforceable and to determine whether or not there has been a grave abuse of
discretion amounting to a lack or excess of jurisdiction on the part of any
branch or instrumentality of the government.”^[9]
Moreover, the absence of rules and regulations mandating a reasonable period
within which the appropriate appellate military authority should act in a case
subject to mandatory review is no excuse for denial of a substantive right. The Bill of Rights provisions of the 1987
Constitution were precisely crafted to expand substantive fair trial rights and
to protect citizens from procedural machinations which tend to nullify those rights. Moreover, Section 16, Article III of the Constitution extends the right
to a speedy disposition of cases to cases “before all judicial,
quasi-judicial and administrative bodies.” This protection extends
to all citizens, including those in the military and covers the periods before,
during and after the trial, affording broader protection than Section 14(2)
which guarantees merely the right to a speedy trial.

The 1987 Constitution
reflects both the recognition by the Constitutional Commission of the
necessity of a military force and the widespread concern, after two decades of
authoritarian rule, over its role in a democratic society. Thus, while the Constitution recognizes the
need for a military force to protect its citizens, it emphatically ordains the
supremacy, at all times of civilian authority over the
military. Through numerous provisions
scattered all over the fundamental law, the constitutional injunction mandating
the principle of civilian supremacy over the military has been given
substantive detail.^[10] This
detail has been further elaborated by the Rules of Court and our jurisprudence.^[11]
Petitioners’ thesis, however, would deny the intent and spirit of these
provisions.^[12]

A consideration of the
history of Philippine military law, moreover, exposes the fallacy of the
petitioner’s averments. The first
military law enacted by the National Assembly of the Philippines
(Commonwealth Act No. 408 which remains the backbone of existing military law
in our country) is essentially American in origin.^[13]
With a few minor amendments, Commonwealth Act No. 408, similar to the American
military code of 1928, continues to be the organic law of the Armed Forces of
the Philippines.^[14]
Our system of court martial proceedings therefore on the surface remains
essentially identical to the system in force in the United States.^[15]

Paradoxically, developments in our military law have failed to
keep up with developments in law both here and in the United States. While the Constitution and the Rules of
Court have together expanded the fair trial rights of the accused, military law
on the matter has remained static, if not anachronistic. While admittedly, military law is a
jurisprudence which exists separate and apart from the law which governs most
of us,^[16]
because “it is the primary business of armies and navies to fight or to be
ready to fight wars should the occasion arise,”^[17]
it is distinct only in so far as it addresses the general recognition of the
unique concerns of the military establishment in safeguarding the government
and citizens it has been sworn to protect, but it cannot exist as an entity wholly separate from our
laws, particularly our Constitution. In
the United States, this recognition has led to the evolution of two basic
sources of specialized jurisprudence: the
Uniform Code of Military Justice (UCMJ), enacted in 1950 by the US Congress and
revised in 1968 and the Manual for Court Martial (MCM), most recently revised
in 1975. These statutory enactments and
the revisions which followed essentially reflected the growth of jurisprudence
in the sphere of civil rights to the extent that, in some aspects involving the
fair trial rights of the accused, the military statutory requirements have
become more stringent. This is at least
true as far as the right to a speedy disposition of cases is concerned. A few examples are in order.

Article 33 of the UCMJ requires the forwarding to the convening
authority of all documents related to the case within eight (8) days of the
accused’s arrest and confinement. Causing unnecessary delay in the disposition of criminal cases
constitutes an actionable offense under Article 98. In general, the Uniform Code of Military Justice mandates that
immediate steps be taken to try or dismiss cases against an accused member of
the armed forces imposing an unusually heavy burden on government in
establishing diligence in the disposition of cases. In the arena of military jurisprudence, decisions interpreting
speedy trial requirements adhere to standards more rigorous than those
involving normal Sixth Amendment Rights. These decisions have required stringent “Sixth Amendment balancing
of 1) length of delay, 2) reasons for delay, 3) timely assertion of speedy
trial right and 4) prejudice to the accused.”^[18]

Thus, ironically, while U.S. military law has dynamically
reflected changes and trends in fair trial jurisprudence in enacting provisions
giving life to the changes in the law, our military law has been stunted by
legislative inaction. Obviously,
current military law and jurisprudence in the Philippines have failed to
respond to actual changes in the fundamental law guaranteeing and expanding the
fair trial rights to the accused thereby leaving gaps in military law which
enables our system of military justice to ignore on a wholesale basis
substantive rights available to all citizens. The absence of a provision mandating a period within which appeals may
be taken to the corresponding appellate authority underscores this deficiency.

Yet our Constitution is clear, Section 14 Article III thereof
states:

Sec 14. (2) In all criminal
prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and the cause of the accusation against him, to have a
speedy, impartial and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the
absence of the accused provided that he has been duly notified and his failure
to appear is unjustifiable.

These rights are clearly available to all citizens even in the
absence of statutory enactment. They
cannot be denied to certain individuals because of gaps in the law for which they
are not responsible. They cannot be
taken away from certain individuals because of the nature of their
vocation. Members of the military
establishment do not waive individual rights on taking up military
uniform. That they become subject to
uniquely military rules and procedures does not imply that they agree to
exclusively fall under the jurisdiction of only those rules and regulations,
and opt to stand apart from those rules which govern all of the country’s
citizens. As the respondent Court correctly
held:

As admitted by counsel for respondents, there is no time frame
within which to transmit the records of the case to the reviewing authority as
well as time limitation within which the Chief of Staff must act on the
recommendation of dismissal However, it must be stressed that the absence of a
rule does not give to the Chief of
Staff indefinite time within which to act at the expense of the constitutional
right of a citizen to enjoy
liberty and to be protected from illegal or arbitrary detention.

Respondent court, therefore, did not commit an abuse of
discretion in ordering the petitioners to act with dispatch in dealing with the
private respondent’s case. Over three
years have elapsed since the respondent’s arrest. To this day, there is no indication – and it has not been alleged
– that records of the case have been forwarded to the appropriate military
appellate authority.

This case does not even involve complex issues of fact and
law. The central issue which the
appropriate military appellate authority will have to review is whether or not
the General Court Martial was correct in dismissing the case on grounds of
prescription under Article 38 of the Articles of War. We cannot see why the military appellate review authority should
take an interminable length of time in coming up with a decision on the
case. The unjustified delay in dealing
with the respondent’s case is a deliberate injustice which should not be
perpetrated on the private respondent a day longer.

II

Petitioner next contends that the Decision of the respondent
court dated June 3, 1992, issuing a writ of habeas corpus in
favor of the private respondent contravenes a previous decision of a co-equal
body, the Court of Appeal’s Fourth Division which earlier denied the same. This is untenable. The factual circumstances surrounding both decisions are
different.

First, at the time of the first petition, the private respondent
was being held in the detention center for eleven months without charges being
filed against him. The pre-trial
investigative panel had not yet been constituted. Because of his confinement without charges, a petition for the
issuance of the writ of habeas corpus
was filed in his behalf on the basis of respondent’s averment that his arrest
and continued detention without charges violated his constitutional rights.^[19]
The Fourth Division found adequate support upholding military jurisdiction over
the case of the private respondent under the Articles of War. It also noted that the case against the
private respondent was ongoing and that it would be difficult to order
respondent’s release on a writ of habeas
corpus without giving military authorities reasonable time within
which to investigate and try the case. The Court nonetheless urged the Chief of Staff to act on the
petitioner’s case “with all deliberate speed, consistent with his
constitutional right to a speedy disposition of his case.”

Second, by the time the subsequent petition for habeas corpus was before the court’s Twelfth
Division (herein respondent court), the JAGO’s Pre-trial Investigative Panel
had dismissed all cases against the petitioner and endorsed the filing of
charges (under Article 136 of the Revised Penal Code) with the Quezon City
Prosecutor’s Office. The latter
subsequently dismissed the case. Moreover at the time the Twelfth Division rendered its assailed
decision, respondent was already languishing in a military detention center for
three years, half of those spent in the limbo between the GCM’s decision
dismissing the cases filed against him and the uncertainty of when the military
appellate process would finally come around in either exonerating him or
overturning the GCM’s findings. This in
spite of the fact that even during the first petition before the Fourth
Division, the court had already urged speedy disposition of the case.

Finally, in dismissing the cases against the private respondent,
the General Court Martial had made a determination that the charges against
respondent had prescribed under Article 38 of the Articles of War. Conformably with this conclusion and with
this Court’s ruling in Domingo vs
Minister of National Defense,^[20] the lower court was correct in
stating that the respondent could no longer be tried by the General Court
Martial if a period of two years had elapsed prior to the arraignment of the
accused. Clearly, the circumstances,
noted above, had changed so radically in the intervening period that the
appellate court’s Twelfth Division had no choice, given the incredible delay in
forwarding the documents to the military appellate authority, but to issue the
writ.

These findings obviously militate against petitioners’ contention
that the appellate court’s Twelfth Division abused its discretion in issuing an
order allegedly in contravention to the Fourth Division’s earlier orders. The factual circumstances are hardly
similar. The respondent court, under
these changed circumstances could be hardly faulted for issuing the writ of habeas corpus in favor of the
private respondent.

The mantle of protection accorded by the issuance of a writ of habeas corpus “extends to all
cases of illegal confinement or detention by which a person is deprived of his
liberty, or by which the rightful custody of any person is withheld from the
person entitled thereto.”^[21] As
we emphasized hereinbefore, and we repeat it once more, petitioners cannot seek
shelter in the absence of specific rules relating to review of cases dismissed
by military tribunals in violating the right of the accused to a speedy trial
and in justifying his continued confinement. Were we to uphold the proposition that our courts should decline to
exercise jurisdiction because the law itself provides no time frame for the
proper military authorities to review the general court martial’s dismissal of
the respondent’s case would mean that we would be sanctioning the suggestion
implicit in petitioners’ argument that the Constitution’s guarantees are
guarantees available not to all of the people but only to most of them.

Petition is hereby DENIED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Puno, Vitug, and
Mendoza, JJ., concur.

Cruz, J., no part.

Bidin, J., on leave.

^[1]
C.A. Rollo, p. 95 (emphasis supplied).

^[2]
Id., p. 14; Annex
“A”.

^[3]
Id., p. 15; Annex “B”.

^[4]
Id., p. 16; Annex
“C”.

^[5]
Id., p. 17; Annex “D”.

^[6]
Id., p. 8.

^[7]
C.A. Resolution, May 29, 1992, pp. 1-2.

^[8]
Decision, June 3, 1992, p. 3.

^[9]
Const., art. VIII, sec. 1, par. 2.

^[10]
See, Olaguer vs. Military
Commission No. 34. (1987)

^[11]
Id., See particularly, Chief
Justice Teehankee’s separate opinion.

^[12]
“Moreover military tribunals pertain to the Executive Department of the
Government and are simply instrumentalities of Executive Power, provided by the
legislature for the President as Commander-in-Chief to aid him in properly
commanding the army and navy and enforcing discipline therein, and utilized
under his orders or those of his authorized military representatives.” Id., citing Ruffy v. Chief of Staff, 75 Phil. 875
(1946). As an agency of the Executive
Branch, acts of military tribunals are reviewable on grounds specified in
Article VIII, sec. 1, in a proper case.

^[13]
GLORIA, PHILIPPINE MILITARY LAW, 9 (1956).

^[14]
Id.

^[15]
Id.

^[16]
Parker vs Levy 417 US 733 at 744 (1974).

^[17]
United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

^[18]
C. SHANOR, MILITARY CRIMINAL JUSTICE, 107 (1980), citing, Baker
v. Wingo, 407 US 514 (1972); U.S. vs Marion 404 US 307 (1971).

^[19]
Rollo, pp. 22.

^[20]
124 SCRA 529 (1993).

^[21]
Rule 102, Rules of Court, sec. 1.