SATURNINO DOMINGO, PETITIONER, VS. MINISTER OF NATIONAL DEFENSE, ET AL., RESPONDENTS.

By this petition for a writ of habeas corpus, the petitioner
seeks to secure his release from confinement on the ground that the same is
illegal and in violation of his constitutional rights.

The petitioner is a member of the Armed Forces of the Philippines
(AFP) with the rank of Lt. Colonel.  At
the time of his arrest, he was Deputy and Executive Officer of the Constabulary
Anti-Narcotics Unit (CANU) and Assistant Chief of Staff for Intelligence, CRS.

On August 7, 1979,
the petitioner was arrested bay some army officers.  Since then up to the present, he is confined
in the Headquarters of the Constabulary Security Unit (CSU).

On August 11, 1979, respondent Minister of National Defense
issued an Arrest Search and Seizure Order (ASSO) No. 4708 for the arrest and
detention of 58 persons, including the herein petitioner, (Rollo,
pp. 34-36).  The issuance of the said
ASSO was by virtue of a Presidential Clearance given pursuant to LOI No. 772
dated November 27, 1978.

On August 31, 1980,
the Office of the Presidential Assistant on Military Affairs recommended the
trial by Military Tribunals of the petitioner “FOR ILLEGAL POSSESSION OF
FIREARMS; INFIDELITY IN THE CUSTODY OF DOCUMENTS; DESERTION; WRONGFUL
DISPOSITION OF FIREARMS; AND, ILLEGAL POSSESSION OF FAKE DOLLARS.” The
said recommendation was approved by the President of the Philippines
on September 9, 1980.  (Rollo, p. 37).

On October 7, 1980,
the instant petition for habeas corpus and prohibition with preliminary
injunction was filed by the petitioner. 
Among the allegations contained therein pertinent to his claim to enjoy
the privilege of the writ of habeas corpus is that, as of the date of the
filing of the petition which was 1 year and 2 months from his arrest, no
criminal charges have been filed against him, nor has a preliminary
investigation of any kind been conducted.  He accordingly contends that he had been
denied his constitutional right to speedy trial and should thereby be released
from his illegal detention and confinement.

In the Resolution dated October
9, 1980, the respondents were ordered to make a return of the writ
on or before Tuesday, October 14,
1980 and the hearing of the case was set on Thursday, October 16, 1980, at 10:30 o’clock in the morning.  The return was actually filed on October 15, 1980.  A Reply and Traverse To The Writ was filed by
the petitioner on November 14, 1980.

On December 12, 1980,
the petitioner filed a “Motion For Preliminary Injunction And For Early
Resolution Of Petition.” Petitioner reiterated therein the prayer
contained in his petition that the filing of charges against him be enjoined in
as much as his right to speedy trial having been violated, the proper thing to
do is to order his release.  He
accordingly prayed therein that his petition be resolved soonest, in the
expectancy that if such contention on his part would be sustained, there would
be no need to try him for the crimes charged against him.

Due to the filing of subsequent pleadings by the parties, the
hearing of the petition was held only on January 27, 1981. 
The result of said hearing is reflected in the Resolution issued on said
date, reading as follows:

“‘(G.R. No. 55212 (In the Matter of the Petition for Habeas
Corpus of Saturnino Domingo vs. The Minister of
National Defense, et al.).  – When this
case was called for hearing this morning, former Senator Lorenzo M. Tañada appeared and argued for the petitioner while
Solicitor General Estelito P. Mendoza, assisted by Assistant Solicitor General Reynato Puno and Roberto E. Soberano as well as Solicitor Roberto Abad
appeared for the respondents.  Before the
conclusion of Senator Tañada’s argument, the
Court asked both counsel whether or not they have no objection to the
suspension of the hearing with the end in view of abbreviating the proceedings until/after the petitioner
shall have filed before the Minister of National Defense petitioner’s motion
for release with or without bail or for relaxation of the terms of his
detention.  Both counsel having
interposed no objection to the suspension of the hearing, the Court Resolved to
require both parties to SUBMIT within one (1) week from today a manifestation
regarding petitioner’s filing with the Minister of National Defense the
aforesaid motion for release or for relaxation of the terms of his
detention.'” (Rollo, p.114.)

The record does not show if the petitioner filed with the
Minister of National Defense a motion for his release or for relaxation of the
terms of his detention.  Instead, the
petitioner filed before this Court a Petition for Bail on February 2, 1981. 
He took said course of action allegedly because he “entertains a
reasonable belief that it may take some time before his petition is decided on
the merits.” The respondents filed their opposition to the petition for
bail on February 10, 1981.  (Rollo, p. 138).

In said opposition to petition for bail, it was revealed that a
preliminary investigation of the case against the petitioner had been conducted
by the Prosecution Division of the Judge Advocate General’s Office (JAGO) and
that a prima facie case had been found against the petitioner for
the crimes of desertion, illegal disposition or misappropriation of government
property, and infidelity in the custody of official documents, which findings
had been approved by the Judge Advocate General; that on January 20, 1981, a
charge sheet for the crimes mentioned was forwarded by the Judge Advocate
General’s Office to the Chief of Staff of the Armed Forces of the Philippines
with a recommendation for the convening of a general court-martial to try the
case; and that on February 6, 1981 the Chief of Staff of the Armed Forces of
the Philippines (APP) approved the recommendation and convened a general
court-martial to hear and decide the case against the petitioner.  (Rollo, pp.
149-152).

On February 25, 1981,
petitioner filed a Reply to Opposition to Petition for Bail and a Reiteration
of his Motion For Preliminary Injunction. 
(Rollo, p. 157).

On March 6, 1981,
petitioner also filed a Reply to Comment on petitioner’s Motion for Preliminary
Injunction.  (Rollo,
p. 171).  The respondents filed their
rejoinder to the petitioner’s Reply on April
30, 1981.

On August 3, 1981,
petitioner filed a Motion to Resolve Petition and All Pending Incidents.

In the Resolution dated August
6, 1981, We gave due course to the Petition and considered the case
submitted for decision.

On July 1, 1982,
the petitioner filed a “Reiteration Of Motion To Resolve Petition And All
Pending Incidents.” Petitioner manifested therein that the trial of his
case had been scheduled for hearing by the court-martial on July 14, 1982.  He contends that said hearing should no
longer be held inasmuch as the government has already lost its right to
prosecute him as a consequence of the gross violation of his constitutional
right to speedy trial.

The basic issue that requires resolution is whether the remedy of
habeas corpus may be extended in favor of the petitioner in view of his having
been supposedly denied his constitutional right of speedy trial, thereby
resulting in the forfeiture of the right of the government to prosecute him for
the crimes he is alleged to have committed prior to his arrest on August 7,
1979.

The other issues raised by the petitioner, to wit, whether the
proceedings being taken against him in the court-martial should be enjoined,
and his right to be released on bail are necessarily dependent on the
resolution of the primary question aforementioned.

There is no disputing the proposition that the non-observance of
the constitutional mandate that the accused in all criminal prosecutions shall
enjoy the right to have a speedy trial can result in the loss of the right of
the government to prosecute him for the crime of which he is charged, and the
accused is entitled to be released on habeas corpus; and that the dismissal of
the case based on that ground would amount to an acquittal.  (Acebedo
vs. Sarmiento, 36 SCRA 247.) The salutary
objective of this rule, in the words of Chief Justice Fernando, is “to
assure that an innocent person may be free from the anxiety and expense of a
court litigation or, if otherwise, of having his guilt determined within the
shortest possible time compatible with the presentation and consideration of
whatever legitimate defense he may interpose.” It is likewise to be
conceded that the right to a speedy trial is available to all accused persons,
whether he be a civilian or a military personnel.  “The Constitution is a law for rulers
and for people equally in war and in peace and covers with the shield of its
protection all classes of men at all times and under all circumstances.”
(Ex Parte Milligan, 4 Wall, 2, 132, 18 L ed 281, 295;
cited in Cayaga vs. Tangonan,
66 SCRA 216, 219.)

The determination of whether an accused has been denied the right
to a speedy trial must have to depend on the surrounding circumstances of each
case.  There can be no hard and fast rule
measured mathematically in terms of years, months or days.  The pertinent inquiry, therefore, is whether
under the facts appearing with respect to the detention and criminal
prosecution of the herein petitioner, he may rightfully complain that he has
been denied his constitutional right to a speedy trial as would result in the
proscription of the right of the State to prosecute him for the crimes he
stands charged.

It is Our opinion that no such deprivation of the aforementioned
constitutional prerogative had taken place in respect of the herein
petitioner.  As hereinabove-mentioned,
the petitioner was arrested on August 7, 1979. 
In his Motion For Preliminary Injunction And For Early Resolution of
Petition dated December 11, 1980, the petitioner has revealed that the
Prosecution Division of the Military Tribunals has set the preliminary
investigation of the charges against him on December 5, 1980.  The delay of a little over a year before the
preliminary investigation as scheduled was explained by the respondents, as
follows:

“If there was initially some delay in charging petitioner
after his arrest, it was occasioned by the need to further investigate his
links with the Communist Party of the Philippines or other subversive elements
and the extent of the plot to assassinate the President.  Petitioner
could not immediately be charged, for a premature disclosure of evidence and
information in the hands of the military could undermine the investigation and
perhaps facilitate the escape of others involved in the subversion or the
attempt on the life of the President.” (Rollo,
p. 40.)

We are not in a position to question the truth of this
manifestation.  It is to be remembered,
however, that as of the time that the petitioner was arrested, the country was
still under martial law and the conditions justifying its continued existence
were presumed to prevail so much so that martial law was not lifted until January 17,1981.

The preliminary investigation set on December 5, 1980 was reset
to December 12, 1980 on motion of counsel for the petitioner.  In a Manifestation dated December 4, 1980, he
prayed for the cancellation of the said hearing and its indefinite deferment
until the Supreme Court shall have decided the instant Petition.  (Rollo, pp. 83-86.)

The said motion of the petitioner was denied, and the preliminary
investigation was conducted during which evidence on the charges against the
petitioner was presented.  Petitioner,
however, failed to present any evidence in his behalf.  The preliminary investigation resulted in the
issuance of a Resolution recommending the filing and trial of the proper
charges before a general court-martial. (Rollo, pp.
132-136.) In addition to the attempt of the petitioner to stop the proceedings
being conducted by the military authorities, the petitioner filed a motion
before this Court on December 12, 1980 reiterating the prayer in his petition
that a writ of preliminary injunction be issued to enjoin the respondents and
all government prosecutors to file any information against the petitioner for
acts allegedly committed by him prior to said date.  The same prayer was contained in the
petitioner’s Reply To Opposition, Etc. dated February 13, 1981 (Rollo, pp. 157-169); once again, in his Motion To Resolve
Petition dated July 31, 1981; and finally, in his Reiteration of Motion to
Resolve Petition and all Pending Incidents dated July 1, 1982.

What transpired thereafter is re-cited in the Comment of the
respondents, as follows:

“Although he (the petitioner) was furnished copies of the
affidavits of the witnesses of the complainants, petitioner did not present
counter-affidavits and declined to take part in the proceeding.  His co-accused in the case submitted counteraffidavits on
January 9, 1981 after two postponements at their instances.  Only then was the investigation concluded.

On January 23, 1981 the investigating officer issued a resolution
in the case finding a prima facie case against petitioner for the crimes of
desertion, illegal disposition or misappropriation of government property, and
infidelity in the custody of official documents.  After approval of this resolution by the
Judge Advocate General, a charge sheet for the crimes mentioned was forwarded on January 30, 1981 to the Chief of Staff of
the Armed Forces of the Philippines with recommendation for the convening of a
general court-martial to try the case.

On February 6, 1981 the Chief of Staff, AFP, approved the
recommendation and constituted a general court-martial composed of officers of
the military to hear and decide the case against petitioner.  Brigadier General Pacifico
de Leon was designated president of the court.

On February 25, 1981 petitioner was arraigned before the general
court-martial.  The charges were read to
him but, before he could enter his plea, his lawyers Attorneys Lorenzo Tañada and Joker Arroyo asked for continuance on the ground
that they needed time to prepare petitioner’s special pleas.  The request was granted and the continuation
of the hearing was set on March 3, 1981.

On March 3, 1981 petitioner, thru his lawyers, presented two
special pleas, i.e., a motion to quash on the ground of alleged denial of his right to speedy trial and a motion for
bill of particulars.  The motion
to quash was argued at length with the
prosecution reserving the right to file a written opposition to the
motion.  The hearing was reset on March
6, 1981.

On March 6, 1981 petitioner reiterated his motion for a bill of
particulars.  After some arguments, the
motion was granted by the court with respect
to one item in Specification No. 2 of the Charge Sheet but denied with respect to the other items
mentioned in the motion, on the ground that these referred to evidentiary matters.

The next hearing was scheduled on April 10, 1981 but on April 9,
1981 the President of the court, Brig. Gen. de Leon, retired from the service
and could not yet be replaced in time
to preside over the scheduled hearing. 
Before this, the prosecution filed on March 24, 1981 their written
opposition to petitioner’s motion to quash.

In the meantime, on April 21, 1981 petitioner made an attempt to
plea-bargain on the charges pending against him.  He wrote the Chief of Staff, AFP, thru the Trial Judge Advocate, offering to withdraw
his plea of not guilty (this was a wrong
assumption since actually he had yet made a plea) and enter a plea of guilty in
consideration of his being allowed to resign his commission in the
military and to join his family in the United States.  A copy of petitioner’s letter is attached herewith as Annex 1.  Petitioner’s lawyers were informed of this
action of petitioner and it was agreed to hold in abeyance the proceedings
before the general court-martial pending the result of petitioner’s
plea-bargaining efforts.*

Although petitioner’s offer of plea was not accepted, he manifested
that he was approaching the problem thru other lines of communications and
requested additional time to await the result
of his efforts.  However, when it became
apparent that petitioner was merely delaying the case, the general court-martial reconvened on August 24, 1982
to proceed with the hearing.  Brigadier
General Rodolfo Ecama was designated new president of
the court in place of Brig. Gen.
Vicente Piccio who was appointed on May 26, 1981 but
had no opportunity to sit in the case.

At the hearing on August 24, 1982 petitioner, thru counsel,
reiterated is pending motion to quash. 
Petitioner offered additional
arguments and was required by the court to put these in writing together with supporting documents.  On August 30, 1982
petitioner did so with the submission of his “compliance.”

At the hearing on September 7, 1982 the court handed down its
ruling denying petitioner’s motion to quash. 
Petitioner orally moved for reconsideration of the order of denial of
his motion.  In addition, he raised the question of prescription of the crimes of
which he was charged.  At his request
petitioner put his motion for reconsideration and for immediate release
in writing and submitted them at the
hearing on September 14, 1982.  The
court adjourned to consider the matters
pending before it and the hearing was reset on September 28, 1982.  The latter hearing was, however, postponed
due to unavailability of the transcript of the previous proceedings requested
by petitioner.

On October 12, 1982 the reconvened court issued a resolution
denying petitioner’s motions for reconsideration and for immediate
release.  And, because petitioner refused to enter a plea, a plea of not
guilty was entered on his behalf on orders of the president of the court.

On October 19, 1982 the prosecution presented its first witness in
the case.  Cross-examination by
petitioner’s counsel was scheduled for the next hearing set on October 26, 1982
but this as well as the hearings scheduled
on November 2 and 23, 1982 were postponed on the ground of illness of Atty. Tañada who was reported to be suffering from gout.

Petitioner should not be heard to complain about the alleged delay
in the trial of his case.  As can be seen
from the above recitals, the prosecution never once asked for a postponement of the hearing.  It was ready from the first day of the
proceeding to present its evidence against the petitioner.  Indeed, as soon as petitioner had pleaded to
the charges, the prosecution began the presentation of such evidence.

Except on account of the retirement of Brig. Gen. Pacifico de Leon, most of the resettings
of the hearing were by agreement of the parties.  The rest were due to postponements requested
by petitioner on account of illness of counsel although he had more than one
lawyer representing him.  The longest adjournment in the case was
prompted by petitioner’s own request to plea-bargain with the authorities.  This delay cannot, as it has not been,
imputed to the prosecution.”

An accused may lawfully complain of having been denied speedy
trial if there had been “vexatious, capricious and oppressive delays”
in the trial of this case.  (Conde vs. Rivera, 45 Phil. 650.) If the delay
is caused by his own fault or by his own acts to prevent the trial from being
held, the accused may not utilize the delay resulting therefrom
as a ground to claim that the government had thereby lost its right to
prosecute him for having been supposedly denied the right to speedy trial.  (Kalaw
vs. Apostol, 64 Phil. 852; People vs. Jabajab, 100 Phil. 307).

In the case of herein petitioner, the delay that he complains of
was the failure of the military authorities to file formal charges against him
and to conduct the corresponding preliminary investigation for a period of
about a year and 2 months after his arrest. 
Considering the situation existing at that time, the petitioner being a
member of the Armed Forces of the Philippines, the seriousness and number of
the charges against him, and the nature thereof being such that his possible
involvement in activities that could jeopardize the security of the State is
neither remote nor unlikely, the lapse of said period before the petitioner was
actually charged may not be, to Our mind, considered as capricious, vexatious
or oppressive.  One year and two months
is relatively short, compared to the period of delay involved in cases where
the right to a speedy trial was considered infringed under circumstances where
the failure to prosecute expeditiously was less justifiable.  (Acebedo
vs. Sarmiento, 36 SCRA 247, more than 6 years; Mercado
vs. Santos, 66 Phil. 215, 20 months; People vs. Cloribel,
11 SCRA 805, 3 years and 11 months; Luneta
vs. Special Military Commission No. 1, 102 SCRA 56, 3 years from arrest to
date of trial).

Certainly, it requires a clearer showing of the alleged
infringement of the fundamental right to speedy trial to justify a verdict that
the State had thereby forfeited its right and authority to prosecute those who
committed crimes against it.

This conclusion inevitably leads to a denial of the prayer of
petitioner that the trial of his case before the court-martial be ordered
stopped.  Aside from his claim that the
government had already lost its authority to prosecute him for the crimes of
which he stands charged due to alleged violation of his constitutional right to
speedy trial, the petitioner had not adduced any other reason why the
proceedings against him should not be allowed to take its due course.

Neither had the petitioner shown why his continued detention is
illegal on other grounds.  He may not
even complain that he was placed in custody without a formal warrant of
arrest.  The petitioner is a military
man, and his arrest may be effected even orally.

“In order to effect the arrest (of a person subject to
military law), the person to be arrested is notified that he is under arrest
and informed of the limits of his arrest. 
The order of arrest may be oral or in writing there being no particular
formality required.” (Gloria, Handbook
of Court-Martial Procedure, p. 2, citing TM 27-255 par. 206, p. 17; AW 70.)

In the case of the petitioner, an Arrest Search and Seizure Order
(ASSO) was issued with Presidential clearance two (2) days after he was
detained.  Assuming, therefore, that a
warrant was necessary to place the petitioner in lawful custody, such
requirement was complied with by the issuance of the ASSO two (2) days later,
and whatever irregularity there might have been in arresting him without a
warrant had been subsequently remedied thereby. 
His confinement since then may no longer be claimed as one without a
valid process.  The petitioner had been
properly charged, was given the benefit of a preliminary examination, and is
now facing trial of those charges before a general court-martial.  It may not be said, therefore, that the
petitioner is being detained or confined illegally so as to entitle him to be
released on a writ of habeas corpus.

With respect to the petitioner’s prayer that he be released on
bail, We reiterate the directive contained in the Resolution of January 27,
1981 issued after the hearing held on said date during which it was agreed that
the petitioner shall file with the Minister of National Defense a “motion
for release with or without bail or for relaxation of the terms of his
detention”, and to submit within a week’s time a manifestation of having
done so.  The record does not show that
the petitioner complied with said agreement. 
The petitioner is a person subject to military law facing charges be­fore
a general court-martial, and his release from confinement pending the trial of
the charges against him is a matter that lies largely in the discretion of the
military authorities.  They are
undeniably in a better position to appreciate the gravity of said charges and
the feasibility and advisability of releasing him or relaxing the terms of his
confinement pending the trial and disposition of the case filed against him.

In a Supplemental Petition dated October 19, 1982 filed after
this case was declared submitted for decision pursuant to the resolution of
August 6, 1981, the petitioner raised the question that the crimes imputed to
him had already prescribed.  In support
of this contention, petitioner cites Article 38 of the Articles of War which
reads as follows:

“Art. 38. As to Time. — Except for desertion or murder
committed in time of war, or for mutiny, no person subject to military law
shall be liable to be tried or punished by a court-martial for any crime or offense committed more than two
years before the arraignment of such person: 
Provided, that for desertion in time of peace or for any crime or
offense punishable under articles ninety-four and ninety-five of these
articles, the period of limitations upon trial and punishment by courts-martial
shall be three years:  Provided,
further, That the period of any absence of the accused from the jurisdiction of
the Philippines, and also any period during which by reason of some manifest
impediment the accused shall have been amenable to military justice, shall be
excluded in computing the aforesaid periods of limitation:  And provided, further, That this articles
shall not have the effect to authorize the trial or punishment for any crime or
offense barred by the provisions of existing law.” (Underscoring supplied.)

He points out the fact that he was arrested on August 7, 1979 and
has been detained since then.  He
maintains that from August 7, 1979 up to August 30, 1982, the date of his
Compliance filed in the General Court-Martial in connection with his Motion To
Quash, more than three years have already elapsed.  He argues that under the above-quoted
provision of Articles of War, the “trial and punishment” of the
crimes imputed to him, which are for desertion in time of peace and for
violations of Articles 94 and 95 of the Articles of War, must be completed
within three years from the commission of the offense; and That said period of
three years had already been surpassed in all the three charges against
him.  He asserts that with respect to the
charge of desertion, the three-year period of limitation should be counted from
February 17, 1979 which was the date when the petitioner left the service
without permission to do so; in the case of the charge of a violation of
Article 94 of the Articles of War, the three-year period should be counted from
February 17, 1979 when the petitioner allegedly committed said offense,
according to the charge sheet; and with respect to the charge of a violation of
Article 95 of the Articles of War, the period of prescription should begin from
July 9, 1978, the date when he allegedly committed said offense.

The respondents disagree with the petitioner’s interpretation of
Article 38 of the Articles of War.  They
contend that the period of prescription of a military offense commences from
the commission of the offense and is interrupted upon the receipt of the sworn
charges by the accused.  They point out
that the petitioner having received the charges against him only on January 30,
1981, the prescriptive period of three years of the offenses for which he
stands charged before the General Court-Martial has not yet expired in any of
the three charges.

Neither the interpretation advocated by the petitioner nor that
upheld by the respondents meets with our acquiescence.  Article 38 of the Articles of War is quite
explicit in prescribing the period of limitation for the prosecution of
military offenses.  There is no question
that the period of prescription of the three charges against the petitioner is
three years, all of the said charges being covered by the proviso in
Article 38, they being for desertion in time of peace or for violations of
Articles 94 and 95 of the Articles of War. 
This period of three years is to be reckoned from the date that the
crime or offense had been committed up to the arraignment of the
accused.  Stated differently, the
offenses filed against the petitioner may to longer be tried by the General
Court?Martial if a period of three years had lapsed from the time the
offenses had been committed up to the time he was arraigned on the same.

The view expressed by the respondents that the three-year period
should be counted from the time of receipt of the sworn charges is apparently
induced by a belief that the rule applied in the United States should be
followed inasmuch as our Articles of War is of American origin.  The adherence to the American rule is
erroneous inasmuch as the provision in the U.S. Articles of War expressly
prescribes that the three-year prescriptive period should be counted from
receipt of sworn charges and specifications.

“Except as otherwise provided in this article, a person
charged with desertion in time of peace or any of the offenses punishable under
sections 919-932 of this title (articles 119-132) is not liable to be tried by
court-martial if the offense was
committed more than three years before the receipt of sworn charges and
specifications by an officer exercising summary court-martial jurisdiction over
the command.” (Art. 43, Code of Military Justice, 10 USCA, Sec. 843 (b)).

As may be noted, Article 38 of our Articles of War provides
differently.  The period of prescription
therein decreed is the time that supervenes from the commission of the offense
up to the time of arraignment.  Contrary
to the petitioner’s submittal, the period is not interrupted by the
commencement of trial, but by the arraignment of the accused.

Petitioner admits that the charge sheet was filed on January 30,
1981 and verified on February 10, 1981. 
(p. 7, Supplemental Petition). 
The petitioner was arraigned before the General Court-Martial on
February 25, 1981 during which the charges were read to him.  It is true that the accused did not then
enter his plea, but that was because his lawyers asked for continuance on the
ground that they needed time to prepare for the entering of “special
pleas.” The absence of plea, however, does not mean that the arraignment
had not taken place, the entering of the plea not being an essential part
thereof.

“The court being organized and both parties ready to proceed,
the trial judge advocate will read the charges and specifications, including
the signature of the accuser, to the
accused, and then ask the accused, how he pleads to each charge and
specification.  This proceeding
constitutes the arraignment.  Instead of
entering a plea to the general issue, the accused may make a special plea or
demur to any charge and/or specification. 
The special pleas are not part of the arraignment.” (Gloria, A
Handbook of Court-Martial Procedure, p. 50).

It is thus clear that the date to consider in determining whether
the crimes or offenses charged against the petitioner had already prescribed
would be February 25, 1981 when he was arraigned.  All the three charges against the petitioner
were allegedly committed within a period of three years before said date.  Consequently, the statutory period of
limitations had not yet set in.

The petitioner’s insistence that his prosecution is already
barred by prescription, as so strenuously argued by him in his Supplemental
Petition as well as in his Reply to the respondent’s Comment to the same,
appears to be inconsistent with the previous contention contained in his Reply
to Comment on Petitioner’s Motion for Preliminary Injunction dated March 5,
1981 (Rollo, p. 171). 
On page 10 thereof, after arguing for the issuance of a writ of
preliminary injunction to stop the court-martial proceeding against him, the
petitioner admitted that the filing of the charges by itself suspended the
period of prescription, as follows:

“IV

The claim of respondents that petitioner should stand trial now
because the crimes imputed to him may prescribe, is no longer valid, in view of
the fact that charges have already been filed against him, and the period of
prescription has been suspended.” (Rollo, p.
180).

The view that the period of prescription was suspended by the
filing of charges which occurred on February 10, 1981 is a departure from the
petitioner’s stance in his Supplemental Petition that the period of
prescription should be deemed interrupted only by his trial and punishment.

WHEREFORE, the petition is hereby dismissed.  No costs.

SO ORDERED.

Makasiar, Concepcion,
Jr., Guerrero, Melencio-Herrera, Plana,
Escolin, Relova, and Gutierrez, Jr., JJ., concur.

Fernando, C.J., and Aquino, J., no part.

Teehankee, J., dissents on the ground that as contended by
petitioner, his prosecution is barred by the statutory three-year period of
prescription and reserves the right to file extended opinion.

Abad Santos and De Castro, JJ., on leave.

*
Petitioner admits having signed the letter attached to Respondents’ Comment as
Annex 1, but claims that he was tricked into doing so by a certain Lt. Col. Virgilio G. Saldajeno who was the
one who prepared the same, by assuring the petitioner that he would be released
if he would plead guilty.  Petitioner’s
lawyers deny knowledge of the said “scheme” until the supposed
plea-bargaining attempt of petitioner
was revealed in the Comment of the respondents.