G.R. No. 92606. July 26, 1991
MAJOR ZOSIMO R. MAGNO, AND CAPTAIN ROSARIO J. TAMAYO, PETITIONER, VS. GENERAL RENATO DE VILLA, IN HIS CAPACITY AS CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, COMMODORE PROC…
DAVIDE, JR., J.:
The threshold issue raised in this case is whether or not General
Court Martial No. 6 committed any jurisdictional error in not ordering the
dismissal or quashal of the Charge Sheet against
petitioners and their co-accused on the ground that more than one offense is
charged therein and in proceeding with the arraignment and entering a plea of
not guilty for the petitioners when they refused to plead.
The antecedents are not disputed.
Petitioners are officers of the Armed Forces of the Philippines. Major Zosimo Magno is with the Philippine Constabulary while Captain
Rosario Tamayo is with the Philippine Army.
In a Memorandum
dated 28 March 1989, Lt. Col. Rodolfo G. Munar,
Chief, Military Justice Division of the Judge Advocate General’s Office (JAGO)
of the Armed Forces of the Philippines (AFP) made the following findings and
recommendation involving Capt. Antonio Gelvero and
herein petitioners:
“10. Premises considered, there exists probable cause against
CAPT ANTONIO G GELVERO PAF, MAJ ZOSIMO R MAGNO PC, MAJ ROSARIO J TAMAYO and LTC
ROBERTO F GUILLERGAN for viol of AW 94, in rel to Art
217 of the RPC, AW 95, and AW 96 and against BG DOMINGO T RIO AFP (Ret) for viol of AW 95 to warrant preferment of CM charges against them. x x
x.“[1]
In due course, a charge sheet was prepared. During the pre-trial investigation, petitioners
submitted their Counter-Affidavits.[2]
Both denied the charges and alleged that the multiple
charges or “shotgun charges” levelled
against them are illegal and unconstitutional since they were deprived of their
constitutional right to be informed
of the nature and cause of the accusation against them and to enable them to
answer the said charges squarely.[3]
The Charge Sheet[4]
contains the following charges and specifications:
CHARGE: I – VIOLATION OF THE 94th
ARTICLE OF WAR (Various Crimes) in relation to Article 217 of the Revised Penal Code (Malversation
of Public Funds and Property)
SPECIFICATION:
In that CAPTAIN ANTONIO G GELVERO, Philippine Air Force, MAJOR
ZOSIMO R MAGNO, Philippine Constabulary and CAPTAIN ROSARIO J TAMAYO,
Philippine Army, did on or about the first
semester of 1987 at then Regional Unified Command Headquarters, Camp Delgado,
Iloilo City, conspiring and confederating together and mutually helping one
another, feloniously and with grave abuse of confidence, embezzle by fraudulently
converting to their personal use money amounting to P600,000.00, property of the Government of the
Philippines, entrusted to them for proper disposition and appropriation in
accordance with law and regulations.
CHARGE: II – VIOLATION OF
THE 95th ARTICLE OF WAR (Frauds against the Government)
SPECIFICATION:
In that CAPTAIN ANTONIO G GELVERO, Philippine Air Force, MAJOR
ZOSIMO R MAGNO Philippine Constabulary, and CAPTAIN ROSARIO J TAMAYO,
Philippine Army, did on or about the 1st semester of 1987 at then Regional
Unified Command Headquarters, Camp Delgado, Iloilo City, conspiring and
confederating together and mutually helping one another, having charge and
control of money of the government of the Philippines, knowingly and willfully
misappropriate and apply to their own benefit money amounting to P481,800.00
property of the government of the Philippines furnished and intended for the
military service thereof.
CHARGE: III –
VIOLATION OF THE 96th ARTICLE OF WAR (Conduct Unbecoming (sic) an Officer
and a Gentleman)
SPECIFICATION:
In that CAPTAIN ANTONIO G GELVERO Philippine Air Force, MAJOR
ZOSIMO R MAGNA Philippine Constabulary and CAPTAIN ROSARIO J TAMAYO Philippine
Army did at then Regional Unified Command Headquarters, Camp Delgado, Iloilo
City, on or about 19 February 1987 and 2 April 1987, with intent to deceive and
injure wrongfully and unlawfully
make and issue to then 1st
LIEUTENANT ANTONIO G GELVERO 13 checks, in words and figures as follows, to wit:
Check Number Payee Date Amount
SN4-2151283-6 Antonio Gelvero 2-19-87 P100,000.00
SN4-2151284-0 -do- -do- 100,000.00
SN4-2151285-1 -do- -do- 100,000.00
SN4-2151286-2 -do- -do- 100,000.00
SN4-2151287-3 -do- -do- 100,000.00
SN4-2151288-4 -do- -do- 100,000.00
SN4-2151446-1 -do-
2-08-87
100,000.00
SN4-2151449-4 -do- -do- 2,000.00
SN4-2151450-5 -do- -do- 100,000.00
SN4-2151451-6 -do- -do- 100,000.00
SN4-2151452-0 -do- -do- 71,000.00
SN4-2151474-1 -do- -do- 100,000.00
SN4-2151475-2 -do- -do- 8,000.00
TOTAL P1,081,000.00
then well knowing that the issuances of
said checks were not authorized, as they were all issued without the
corresponding disbursement voucher duly processed and approved as required
under established accounting procedures and that no appropriations and
allotments obligated/earmarked for the purpose in accordance with law and
regulations, which acts constitute conduct unbecoming of an officer and a
gentleman.
Trial was referred to General Court Martial No. 6 (hereinafter referred to as GCM 6).
When GCM 6 convened on 1 March 1990 for the arraignment and trial
of petitioners and their co-accused, petitioners questioned the Charge Sheet on
the ground that “[i]t charges petitioners of (sic) more than one offense.”[5]
Specifically, petitioners, through their counsel, Atty. Renecio
Espiritu, argued that under the charge sheet they are charged for four (4)
offenses, namely: violations of (a) AW
94, (b) AW 95, (c) AW 96, and (d) Art. 217 of
the Revised Penal Code, which is taken in relation to AW 94 and AW 95, each of which carries a different penalty. Counsel stressed that the constitutional
right of the accused to be informed of the nature of the charges against them
with particularity was violated when the charge sheet charged them with more
than one offense. However, probably confused as to what had to
be properly and effectively done, they merely stated that “this is a
ground for a demurrer to the evidence or demurrer to the charge sheet.”[6]
After a few legal skirmishes between the civilian counsel, on the one hand, and
the Trial Judge Advocate and the Co-Trial
Judge Advocate on the other, and following the pronouncement of the President
of GCM 6 for the parties to go
through the proper sequence before entry of a special plea,[7]
the introduction of petitioner’s counsel,
the statement by the Co-Trial Judge Advocate of the general nature of
the charges and that no member of the court would be a witness, and after
asking the petitioners and co-accused if they challenge any member of the
court,[8]
counsel for petitioners
reiterated his earlier observation that the
charge sheet charges more than one offense. Unable
to adjust his bearing after the confusion however, said counsel did not
press for a quashal of the Charge Sheet. Instead, after confessing that petitioners
“really do not know x x x which of these particular
violations of the Articles of War whether 94, 95 and 96 is the particular
offense being charged of the
accused (sic),” counsel “ask for
a bill of particulars on the matter.”[9]
Thereafter, petitioners, with co-accused Gelvero,
were arrainged.
The latter, through counsel, entered a plea of not guilty to each of the
three charges and specifications.
Petitioners, through their counsel, announced that in view of their
special plea that “there is
a multiplication of charges against”
them, and that they “are
going on certiorari on that particular issue,” they will not enter
a plea,[10]
and it would be “up for the Trial Judge Advocate to enter the plea there because if there is no plea, it would be a plea of Not
Guilty.”[11]
The Law Member then directed that a plea of not guilty be entered
for petitioners.[12]
On 30 March 1990,
petitioners filed the instant petition, raising more issues than what they
pleaded before GCM 6, to wit:
“1. Whether the
Charge Sheet which indicted petitioners of alleged violations of Articles of
War Nos. 94, 95, and 96, and Article 217 of the Revised Penal Code (Malversation)
violates Constitutional provision (sic) and Procedural Laws? (Criminal Procedure and Manual of Court Martial).
2. Whether the
legal basis of questioned document report No. 187-88 dated October 11, 1988 can be classified as an (sic) evidence illegally seized?
3. Whether there
exist (sic) conspiracy between petitioners herein and Lt. Antonio G. Gelvero in violating the Articles of War (AW 94, 95, and 96) and Article 217 of the
Revised Penal Code?
4. Whether
the affidavit of Lt. Antonio G. Gelvero admitting
that he forged the signatures of petitioners will legally justify petitioners
(sic) contention that the cases against
them be dismissed for want of evidence.”[13]
As regards the
first issue, petitioners contend that the challenged Charge Sheet violates
”Rule 110 Sec. 12[14]
of the Rules on Criminal Procedure” which provides that a complaint or
information must charge but one offense, except only in those cases in which
existing laws prescribe a single punishment for various offenses, Section 14 of
Article III of the 1987 Constitution which provides that the accused has the
right to be informed of the nature and cause of the accusation against him, and
Section 27 of the Manual for Courts-Martial prohibiting multiplicity of
charges.
In Our resolution of 3
April 1990,[15]
We required respondents to comment on the petition.
In their Comment filed on 22
June 1990 by the
Office of the Solicitor General, respondents
submit that the only basic issue in this case is whether or not respondents, in
denying petitioners’ motion to quash, committed any jurisdictional error,
correctible by a writ of certiorari or writ of prohibition. They
maintain that no such error was committed and in support thereof, they argue
that petitioners are subject to military law.
In the Philippines,
military law is substantially set forth in the Articles of War,[16]
Manuals for Court-Martial, promulgated AFP rules and regulations, and such
other relevant statutes and rules defining rights, duties and privileges of
military personnel as well as those pertaining to infractions and the
appropriate punishments for violation
thereof. On 17 December 1938, the
President of the Philippines, pursuant to the authority vested upon him as
Commander-in-Chief of the Armed Forces of the Philippines under Article 37 of
C.A. No. 408, promulgated Executive Order No. 178, known as the Manual for
Courts-Martial, Philippine Army (hereinafter referred to as the Manual),
prescribing the procedure, including modes of proof, in cases before
courts-martial, courts of inquiry, military commissions and other military
tribunals of the Philippine Army.
Respondents further argue that the proceedings had against
petitioners were done in accordance with the prescribed procedure and that
“insofar as the cases
against petitioners-accused are concerned, court martial jurisdiction over
their persons and over the subject matter has already long attached or has
already long been acquired”;[17]
consequently, in denying petitioner’s motion to quash and in directing that a
plea of “not guilty”
be entered into the record, respondents did not act without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack of
jurisdiction. Certiorari and
prohibition or prohibitory injunction under Sections 1 and 2 of Rule 65 and
Section 1 of Rule 58, respectively, of the Rules of Court cannot then
prosper. Finally, they stress that
petitioners have not raised any question or issue affecting respondents’
jurisdiction or legal authority over the subject criminal case and their
jurisdictional competence to issue the assailed order denying the motion to
quash.
In Our resolution of 5
July 1990, We required petitioners to file
a Reply to the Comment of respondents.
In their Reply, which was filed on 26 July 1990, petitioners reiterated
their main arguments that their indictment for four (4) offenses “violates
Rule 110 Sec. 12[18]
of the Rules on Criminal Procedure which prohibits multiplicity of
charges,” Article III, Section 14 of
the 1987 Constitution which mandates that an accused must be informed of
the nature and cause of the accusation against him, and Section 27 of the Manual which prohibits multiplicity of charges.[19]
They, however, categorically admit that:
“x x
x In this instant case the jurisdiction of
Court Martial No. 6 over the person of the petitioners and the nature of the
offenses of which they were charged is not assailed before the Honorable Supreme
Court, but it is the grave abuse of discretion by the Honorable Members of
Court Martial No. 6 in continuously ignoring the legal issues (Procedural Laws and Constitutional Provisions) raised
before it, such acts (is) without or in excess of their jurisdiction and with
grave abuse of discretion, and there is no appeal, speedy and adequate remedy
in the ordinary course of law, thus the writ of certiorari and
prohibition x x x.”[20]
In the resolution of 9
August 1990,[21]
We gave due course to the petition, considered the
Comment of respondents as their Answer, and required the parties to file
simultaneously their respective Memoranda within twenty days from notice. Respondents, pursuant to their motion of 29 August 1990,[22]
were allowed[23]
to adopt the Comment as their Memorandum.
Petitioners filed their Memorandum on 4 October 1990.[24]
Issues 2, 3 and 4 submitted by petitioners cannot be properly
raised in this case. They go into the
merits of some evidence which may or may not be offered or admitted at the appropriate
time. This Court is neither a reviewer
of evidence before its submission in court,
nor, generally, a trier of facts.[25]
This is specially
true in cases before Courts-Martial because its decisions are not appealable to this
Court. Pursuant to Sections 87 and 88 of
the Manual, such decisions would pass the reviewing and the confirming
authorities. This conforms to the
principle, as hereinafter discussed, that courts-martial are not courts within
the Philippine judicial system. This is
not to suggest, however, that this Court is without corrective authority over
the courts-martial. It does have that
authority when jurisdictional errors are involved. In Martelino, et al. vs. Alejandro,
et al.,[26]
this Court ruled:
“It is true that civil courts as a rule exercise no supervision or
correcting power over the proceedings of courts-martial, and that
mere errors in their proceedings are not open to consideration. ‘The single inquiry, the test, is jurisdiction.‘
But it is equally true that in the exercise of their undoubted discretion,
courts-martial may commit such an abuse of discretion – what in the language of
Rule 65 is referred to as ‘grave
abuse of discretion‘ – as to
give rise to a defect in their jurisdiction.
This is precisely the point at issue in this action suggested by its
nature as one for certiorari and prohibition, namely, whether in
overruling the petitioners’ challenges, the general court-martial committed
such an abuse of discretion as to call for the exercise of the corrective powers of this Court.
It is thus obvious that no other way is open to this Court by which it
may avoid passing upon the constitutional issue thrust upon it. Nor will the fact that there may be available
remedies within the system of military justice bar review
considering that the questions raised are questions of law.”
We
should then focus our discussion on the first issue, as reformulated by
the Solicitor General.
It having been admitted that petitioners are subject to military
law and that GCM 6 has validly acquired jurisdiction over their persons and
over the nature of the offenses charged, the inquiry should then be limited to
a determination of whether or not respondents acted with grave abuse of
discretion or in excess of jurisdiction amounting to lack of jurisdiction in
not ordering the quashal or dismissal of the charge
sheet on the ground that more
than one offense is charged therein.
Petitioners anchor their plea principally on Section 13 (which they cite
as Section 12) of Rule 110 of the Rules of Court on the theory that the Rules
of Court should also apply to military personnel since the “Court Martial
proceedings, and the Articles of War, are not and should not be enterpreted (sic) as a (sic) complete, separate, and
distinct rules of procedure than those used in the trial of civilians which is
the Rules of Court.”[27]
Insistence on this provision of the Rules of Court is misplaced. Courts-Martial are not courts within the
Philippine judicial system and are merely instrumentalities of the executive
department.
In the leading case of Olaguer,
et al. vs. Military Commission
No. 4, et al.,[28]
this Court held:
“x x x
Military Commissions or tribunals, by whatever name they are called, are not
courts within the Philippine judicial system.
As explained by Justice Teehankee in his separate dissenting opinion[29] –
x x
x
‘The late Justice
Black x x x added that ‘(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,’ as that exservicemen
should be given ‘the benefits of
a civilian court trial when they are actually civilians x x
x. 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.’”
“Moreover, military tribunals pertain to the Executive Department
of the Government and are simply instrumentalities of the Executive power,
provided by the legislature for the President as Commander-in-Chief to aid him
in properly commanding the army and the navy and enforcing discipline therein,
and utilized under his orders or those of his authorized military
representatives.”[30]
In his concurring opinion in Vargas vs. RADM
Kilcline, et al.,[31] Mr. Chief Justice Teehankee,
to further emphasize the principle that courts-martial are not courts under the
judicial system, stated:
“x x x I only
wish to add, in order to avoid any misinterpretation of the statement in the
main opinion that ‘the United
States Navy courts martial are courts duly constituted and under the jurisdiction of the United States
Government,’ that it is not to be taken as departing from the well-established
principle that military commissions or tribunals or courts martial are
admittedly not courts and do not form part of the judicial system and judicial
process. As stressed in the leading case
of Toth vs. Quarles (350 U.S. 5), ‘(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 ‘the
presiding officer at a court martial 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.’ x x x.“
Consequently, the Rules of Court, which this Court adopted
pursuant to its power and authority under the Constitution[32]
to govern pleading, practice and procedure in all courts of the Philippines, is not applicable to pleading, practice and procedure in
courts-martial. However, no legal
obstacle bars certain guidelines relating to court-martial proceedings from
adopting statutes relating to preliminary investigations of ordinary criminal
cases triable by regular courts.[33]
The rule of procedure which shall be applied to petitioners is that
prescribed in the Manual.[34] Section 31 thereof provides that
charges and specifications shall be signed and sworn to substantially as
indicated in the form, Appendix 3, which is the CHARGE SHEET.[35]
A Charge Sheet may contain more than one charge. However, as provided for in Appendix 4 of the
Manual,[36]
the charges should be numbered, using the Roman numerals, viz., I, II,
etc. The specification shall follow
under each charge. When there is one
specification under a charge, the
specifications under that charge should be numbered, using the Arabic numerals,
viz., 1, 2, etc.
The charge indicates, where the offense alleged is a
violation of the Articles of War, the article alleged to have been
violated. The specification sets forth the specific acts and circumstances relied upon as
constituting the violation.[37]
Section 67[38]
of the Manual expressly provides that in order to
prevent confusion and to guarantee to the accused an intelligent presentation of
his defense for each offense charged against him, each specification must contain only one offense. This is founded upon the constitutional right
of an accused person to be properly informed of the nature of the offense for
which he is charged. Accordingly, if more than one offense is alleged in a specification, the
accused may file a demurrer,[39]
which is equivalent to a motion to quash under the Rules of Court.[40]
Thus, the Manual itself assures protection of this right.
A careful scrutiny of the challenged Charge Sheet, more specifically Charges I, II and III and
the specifications thereunder do not yield the
conclusion that GCM 6 had committed grave abuse of discretion or had acted in
excess of jurisdiction amounting to lack of jurisdiction in denying the motion
of petitioners and in later entering for them a plea of not guilty when they
refused to make any plea after their arraignment. As clearly shown in the Charge Sheet, each
specification recites the act constituting
the alleged offense charged. There
is no specification which
recites the commission of more than one offense.
It cannot also be successfully argued that the acts for which
petitioners have been charged cannot give rise to violations of more than one
article of the Articles of War, unless the rule against double jeopardy is
available to them. We do not find it to
be so, for even conceding for the sake of argument that the three charges arose
out of one transaction or one single act, the requisites of double jeopardy are
not present.
In People vs. Doriquez,[41]
We held:
“It is a cardinal rule that the protection against double
jeopardy may be invoked only for the same offense or identical offenses. A simple act may offend against two (or more)
entirely distinct and unrelated provisions of law, and if one provision
requires proof of an additional fact or element which the other does not, an
acquittal or conviction or a dismissal
of the information under one does not bar prosecution under the other. Phrased elsewise,
where two different laws (or articles of the same code) define two crimes,
prior jeopardy as to one of them is no obstacle to a prosecution of the other,
although both offenses arise from the same facts, if each crime involves some
important act which is not an essential element of the other.”[42]
AW 94, AW 95 and AW 96 are distinct, different, and separate
offenses under the Articles of War. One
single act or transaction may constitute a violation of any or all of such
articles. We are not,
however, unaware of Section 27 of the Manual which provides that one
transaction, or what is substantially
one transaction, should not be made the basis for an unreasonable
multiplication of charges against a person.[43]
That has not been violated in this case, for, on the assumption that there had been multiplication of charges, it
cannot be characterized as “unreasonable.”
GCM 6 did not, therefore, commit any error of jurisdiction in
proceeding with the arraignment and in ordering that a plea of not guilty be entered for each of the petitioners
following their refusal to plead.
Article 21 of the Articles of War and Section 10 of the Manual provide
that when the accused, after arraignment, refuses to plead or answers foreign
to the purpose, the court shall proceed
to trial and judgment as if he had pleaded not guilty.
WHEREFORE, for lack of merit, the instant
petition is DISMISSED with costs against petitioners.
SO ORDERED.
Fernan, C.J., Narvasa,
Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, and Regalado, JJ., concur.
[1] Annex “E” of Petition; Rollo,
39-42.
[2] Annexes “G” and “H” of Petition; Id.,
47-73.
[3]
Id., 49, 61.
[4]
Annex “I” of Petition; Rollo, 75-79.
[5]
Petition, 5; Rollo, 6.
[6]
TSN of the proceedings (Annex “K” of Petition), 2-3; Id., 84-86.
[7]
Annex “K” of Petition, 10; Id.,
92.
[8]
Annex “K” of Petition; Id.,
97.
[9]
TSN of proceedings
(Annex “K” of Petition), 17; Rollo,
99.
[10]
Id., 109.
[11]
Loc. cit.
[12]
Id., 28.
[13]
Rollo, 7-8.
[14]
Now Section 13 which reads:
“SEC. 13. Duplicity of offense. – A complaint or information must charge but one offense, except only in
those cases in which existing laws
prescribe a single punishment
for various offenses.”
[15]
Between p. 116 and p.
117 of Rollo.
[16]
C.A. No. 408, as amended.
[17]
Rollo, 174.
[18]
Now Section 13.
[19]
Loc. cit., 184-185.
[20]
Rollo, 209.
[21]
Id., 193.
[22]
Id., 194.
[23]
Resolution of 11 September 1990.
[24]
Loc. cit., 202-211.
[25]
Cañete, et al. vs. Court of Appeals, et al.,
171 SCRA 13; and the cited cases of Lim vs. Court of Appeals, 158 SCRA
308; Samson vs. Court of Appeals, 141 SCRA 194; Republic vs.
Intermediate Appellate Court, 144 SCRA 705; Municipality of Meycauayan,
Bulacan vs. Intermediate Appellate Court, 157
SCRA 640.
[26]
32 SCRA 106, 110.
[27]
Rollo, 205.
[28]
150 SCRA 144, 159 (1987).
[29]
In Aquino, Jr. vs. Military
Commission No. 2, et al., 63 SCRA 546,
621 (1975).
[30]
Citing Ruffy vs.
Chief of Staff, 75 Phil. 875 (1946).
[31]
142 SCRA 232 (1986).
[32]
Section 13, Article VIII of the 1935
Constitution, now paragraph (5), Section 5, Article
VIII of the 1987 Constitution.
[33]
For example, Section 12 of the Rules and
Regulations Implementing Presidential Decree No. 1850, dated 4 October 1982,
Defining Court-Martial Jurisdiction Over Members of the Armed Forces of the
Philippines and Integrated National Police provides that the procedures
prescribed in P.D. No. 77, as amended by P.D. No. 911, on preliminary
investigations, shall be followed in the conduct of pre-trial investigations.
[34]
Executive Order No. 178.
[35]
A Manual For Courts Martial,
Armed Forces of the Philippines, 1969 ed., 226-227.
[36]
Manual, 229.
[37]
Section 24; Id., 16.
[38]
Id., 55.
[39]
Section 64; Id., 55.
[40]
Rule 117.
[41] 24 SCRA 163, 171.
[42]
Citing People vs. Bacolod, 89 Phil. 621; People vs. Capurro,
7 Phil 24; People vs. Alvares, 45 Phil. 472.
[43]
Manual, 17.