G.R. No. L-37364, May 9, 1975,
♦ Decision,
Antonio, [J]
♦ Concurring & Dissenting Opinion,
Castro, Fernando [JJ]
♦ Dissenting Opinion,
Teehankee, Muñoz-Palma [JJ]
♦ Concurring Opinion,
Barredo, [J]
EN BANC
G.R. No. L-37364 May 9, 1975
BENIGNO S. AQUINO, JR., petitioner,
vs.
MILITARY COMMISSION 2, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, and SECRETARY OF NATIONAL DEFENSE, THE CHIEF JUSTICE OF THE SUPREME COURT, and SECRETARY OF JUSTICE,* respondents.
Tañada, Salonga, Ordoñez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.
Office of the Solicitor General Estelito P. Mendoza, Assistant Solicitor-General Vicente V. Mendoza, Assistant Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Reynato S. Puno and Attorney Blesila Quintillan for respondents.
Separate Opinions
CASTRO, J., concurring and dissenting:
I am constrained to write this concurring and dissenting opinion because (a) although I substantially agree with Justice Felix Q. Antonio's forthright discussion and learned resolution of the inescapable issues posed by the petition and the supplemental petitions filed by the petitioner Benigno S. Aquino, Jr., I disagree with his approbation of the "right" of total waiver claimed by the petitioner, and (b,) I desire to express my views on matters which, although in a sense peripheral and not squarely in issue, are nevertheless cogent and pertinent to the central issues at bar.
1. At the threshold, I must state that I voted to deny the petitioner Aquino's motion to withdraw his petitions and all related motions and incidents, for the self-same reasons that impelled my vote to deny Jose W. Diokno's motion to withdraw his petition in the Martial Law cases (Aquino, et al. vs. Enrile, et al., L-35546, and other allied cases.*) Like in the cases just adverted to, there are in the case at bar considerations and issues of transcendental and grave import, and I apprehend that great disservice may be caused to the national interest if these are not resolved on the merits.
2. I am hard put to understand how and why the petitioner's counsels conjured the argument that under the Bill of Rights the "due process" accorded to persons accused in criminal cases contemplates only judicial process. This argument runs squarely athwart the time-honored doctrine in the Philippines as well as in the United States — a doctrine that the petitioner's counsels must surely be aware of that due process in criminal trials may comprehend not only judicial process, but also executive process (and even legislative process in the proper cases).
3. Corollarily to this contention of the petitioner, the further thesis is advanced that his trial by a military commission denies him due process because he is deprived of the right of appeal. It seems rather elementary that the right of appeal, unless the Constitution expressly guarantees such right, is merely statutory and may be withdrawn, modified or altered at any time — a principle that his counsels know only too well. Even an appeal to an intermediate collegiate appellate court or to the Supreme Court is not a right under the Constitution unless an explicit guarantee can be found in the words thereof.
And as far as appeal is concerned, it is apparent that the petitioner's counsels are not aware of the number of the levels of review of a decision of conviction by a military commission in our jurisdiction. Four levels of review (equivalent to four levels of automatic appeal) are provided, namely: the first review by the Staff Judge Advocate of the Chief of Staff (who appoints the military commission); the second review by a Board of Review of not less than three senior officers, of the Judge Advocate General's Service; the third review by a Board of Review of not less than three senior officers of the Judge Advocate General's Service; the third review by a Board of Military Review acting for the Secretary of National Defense and consisting of not less than two lawyer-officers of at least field rank; and the fourth and final review by the Secretary of Justice for the President of the Philippines as Commander-in Chief. These four reviews are compulsory; none of them may be bypassed or dispensed with. And even if the Staff Judge Advocate, the Board of Review, and the Board of Military Review all concur in the judgment of conviction and the sentence imposed by the military commission, the Secretary of Justice may yet, if in his opinion the evidence so warrants, recommend to the President the acquittal or exoneration of the accused. So that from arraignment by a military commission to final action by the President, a minimum of thirteen presumptively responsible individuals in different capacities are involved in the entire process: a military commission of not less than five members, a Staff Judge Advocate, a Board of Review of not less than three officers a Board of Military Review of not less than two officers, the Secretary of Justice, and the President. I cannot accept the petitioner's inferential conclusion that all the twelve persons involved (before the President takes final action) can be dictated to, assuming that the President is minded to influence them. The petitioner may not be aware what the military commission now existing have acquitted many who have been accused before them, and that convictions have been reversed or modified upon the recommendation of the reviewing officers and boards of officers
4. The petitioner makes the indictment that the military tribunals and the entire Judiciary are, to paraphrase him, well under the thumb of the President of the Philippines. I quote his exact words: "Mr. Marcos is the single genius, composing and directing all the proceedings, whether in the military tribunal or in the civil courts... [and] has destroyed the independence of the civil courts..... Trials by civil courts would still be a travesty of justice...." This accusation is doubtless very serious, but I say that it is a gravely irresponsible one. To declare or imply that the entire Judiciary, from the Chief Justice and Associate Justices of the Supreme Court down to the last municipal judge, is under dictation by the President, is an indictment that can come only from a person who does not know whereof he speaks. If the petitioner has no faith in military justice and at the same time professes absolute lack of faith in the Judiciary, does this mean that the petitioner is so magically endowed that only he and he alone is capable of meting out justice in this country? The over-all workload of all the courts in the Philippines has increased immeasurably. If this does not indubitably indicate the faith of the people in the Judiciary then I do not know what does. If the petitioner does not share the faith of the people in the Judiciary, we must look to reasons other than the ostensible ones for his irresponsible and reprehensible statements. To my mind these reasons are obvious and need not be belabored.
5. On the matter of whether the petitioner has what he claims is a "right of total waiver" of his presence in the proceedings before the military commission, I confess that the basis for such view escapes me. The trouble with the advocacy of the so-called "right" of total waiver is that it places undue and inordinate stress on the "rights" of the individual and completely refuses to recognize that the State, too, has its own rights and duties. I do not believe that there can be any debate on the right and obligation of the State to administer justice properly. Part and parcel of this right and obligation is the right of a tribunal, whether judicial or executive, to satisfy itself that the person whom it may later convict upon the evidence is the accused pointed to by the eye-witnesses for the prosecution. Because if the witnesses point to X, and the accused actually happens to be Y, the court of tribunal has, in conscience, no recourse but to absolve Y. For, the proper identification of the accused is the very quintessence and sine qua non of any valid prosecution, is the very fundamental of due process in any criminal trial. Surely, if the commission is to discharge its burden conscientiously, it cannot be denied the right to determine for itself the proper identity of the person who stands accused before it. This right has absolute primacy over what the petitioner calls his "right" of total waiver of his presence.
Of course, in this particular case of the petitioner, it could be argued that he is a national figure and therefore is known by everybody.ℒαwρhi৷ But I challenge the correctness of this postulate. For can it not possibly happen that a member of the trying tribunal may have heard of Benigno S. Aquino, Jr., the former Governor of Tarlac and former Senator, but may have never actually seen him before? Identification is essentially one of perception of sight and not a process of inference or strained deductive reasoning. It may be correct to infer from the declarations in court of witnesses for the prosecution who refer to a Benigno S. Aquino, Jr., former Governor of Tarlac and former Senator, that the person referred to is the petitioner, but this cannot thereby foreclose the petitioner from later challenging the validity of his conviction (if he is convicted) upon the ground that not one of the prosecution witnesses pointed to him as the indicted Benigno S. Aquino, Jr.
My understanding of the provisions of the new Constitution on waiver of presence in criminal proceedings is that such waiver may be validly implied principally in cases where the accused has jumped ban or has escaped, but certainly may not he asserted as a matter of absolute right in cases where the accused is in custody and his identification is needed in the course of the proceedings.
And what of the reviews to be conducted by the Staff Judge Advocate of the Chief of Staff, the Board of Review, the Board of Military Review, and the Secretary of Justice? Is it not the bounden duty of these individuals, singly and collectively, to satisfy themselves beyond cavil at the outset of review that the person convicted by the commission is the accused named in the charges and that he was identified properly by the eyewitnesses for the prosecution?
Thus, I voted for qualified waiver: the accused may valve his presence in the criminal proceedings except at the stages where identification of his person by the prosecution witnesses is necessary. I might agree to the proposition of "total" waiver in any case where the accused agrees explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a prosecution witness mentions a name by which the accused is known, the witness is referring to him and to no one else.
What is disturbing is that because six Justices voted for "total" waiver and only five Justices voted for qualified waiver, the judges of all inferior courts would now be at a loss to determine, in any given situation, whether to take the "total" waiver position or follow the qualified waiver doctrine — unless it be conceded that because the Court is divided and the "total" waiver theory fails to command the assent of eight Justices, the qualified waiver theory must be regarded as doctrinal law. Otherwise, each judge should be left to determine, according to his conscience and the milieu of each case, what to do in order to administer justice properly.
Acquittal on a mistaken identity basis has occurred in numberless instances all over the world. While it is true that the Rules of Court provide that identity of name means identity of person, it is a well-known fact in this country that there are names so common that many persons carry the same name. Especially considering that our population has burgeoned considerably, no one can deny that there are many persons by the name Jose Cruz, many by the name Jose Santos, many by the name Jose Reyes, ad infinitum** (which is good enough reason why the President of the Integrated Bar, retired Supreme Court Justice Jose B.L. Reyes, has found it necessary to put the letters "B" and "L" between the names "Jose" and "Reyes," and why I have used the name "Ruiz" in my name in order that my identity will not be confused with those of two other persons who are known by the name Fred Castro).
6. During the deliberations on this case, there came to the attention of the Court rumors and amorphous bits of news to the effect that the petitioner was on the verge of death because of his "hunger strike." Curiously and oddly enough, none of those who purveyed the rumors ever thought of submitting to the Court a statement from the Secretary of National Defense as to the state of health of the petitioner. And because of this, there was a feeling on the part of the members of the Court that they were being stampeded into deciding this case on the basis of the petitioner's "hunger strike." As far as I am concerned, I did not think it advisable for the Court to request the Secretary of National Defense for such statement, because I assumed that if the petitioner were indeed in a state where his death was imminent, his counsels would have come forward with alacrity to inform the Court accordingly and this, inspite of the petitioner's motion to withdraw which, at the time the rumors reached the Court, was still unresolved. To argue that because the petitioner had already filed his motion to withdraw there was no more need for his counsels to give the Court information regarding his supposedly deteriorating health, is to assume erroneously that the Court would grant his motion.
7. I here make of record my considered view that the petitioner has deliberately and calculatingly tried to utilize the Court as a forum for his propaganda. First he said he preferred trial by the civil courts to trial by any military tribunal, but in the next breath he denounced the civil courts as "lacking in independence." Then he filed a petition with the Court to stop the proceedings before the military tribunal; shortly thereafter he moved to withdraw it, saying that his remedies had come "too little and too late." Next he renounced the services of all his counsels, civilian and military, yet his lawyers continued to file pleadings in his behalf with the Court, visit him in his quarters, and assist him in the perpetuation proceedings before the military commission. Then his lawyers filed a manifestation with the Court claiming that the military commission's decision to compel him to appear was for the purpose of "dehumanizing and humiliating" him; but when the Court, acting on his manifestation, restrained the military commission, he directed his lawyers to withdraw his petitions before the Court, including his prayer for a temporary restraining order. He informed the newspapers that his "hunger strike" was a protest against his compelled presence in the perpetuation proceedings, but when six Justices of the Court voted for his "right" to "total" waiver of his presence, he announced that he would attend the proceedings. All of these developments could indeed be read to mean one or both of two things: that his "hunger strike" was, after all, perhaps not quite what it purported to be and/or that he has been trifling and continues to trifle with the military commission and with the Court.
8. If I were the petitioner, and I know I am innocent, there would appear to be no reason for me not to face the proceedings frontally and establish my innocence. This is not to imply that the petitioner is guilty of the charges; it is merely to stress that his behavior is hardly what perceptive people would expect from a man who professes innocence. If it is propaganda that is in the back of the head of the petitioner, I would think that the highest-quality propaganda in his favor is to establish his innocence of the charges soonest possible.
9. I would like to add my own emphasis to the opinion written by Justice Antonio, by stating in capsule my considered views: (1) the President of the Philippines, by virtue of his proclamation of martial law (in sensu strictiore), which the Court has already upheld as within the ambit of his powers under the 1935 and 1973 Constitutions, has likewise the power to organize military commissions in order to carry out the objectives and purposes of martial rule; (2) the military commissions created by authority of the pertinent presidential decrees are legal as well as constitutional, as the said presidential decrees have been expressly made part of the law of the land by the transitory provisions of the 1973 Constitution; (3) by tradition and history as well as by the explicit provisions of the said valid presidential decrees, the military commissions so created have jurisdiction to try civilians for offenses necessarily connected with the objectives of martial law, whether these offenses were committed prior to the institution of martial rule or subsequent thereto and this inspite of the fact that the civil courts are open and functioning; (4) the claim of the petitioner that because the offenses with which he is charged were, in point of time, allegedly committed prior to the declaration of martial law they may not be taken cognizance of by a military commission, ignores one inescapable basic fact, and this is that the crimes imputed to him are among the crimes that gave cause for the institution of martial rule; (5) the argument of the petitioner that the Constitution, in providing for due process in criminal trials, can mean only trial by judicial courts, not only demonstrates the petitioner's misunderstanding or misreading of military traditions in civilized countries throughout the ages but as well foists an interpretation of the Constitution not warranted by its phraseology ; (6) well-imbedded in our jurisprudence is the recognition that justice can be administered fairly by military tribunals; and (7) the power of the Supreme Court to review death sentences does not include the power to review death sentences imposed by military tribunals.
10. In view, of all that I have above stated, and especially in the light of my considered opinion that the military commissions now in existence have jurisdiction to try civilians, judicial restraint effectively precludes me from expressing my views on whether the President should transfer the case of the petitioner to a civil court for trial. Finally, it is my abiding conviction that the President will do, within the intendment of his sacred oath of office, what he believes is just for the petitioner and, logically, also for everyone else similarly situated.
Makasiar, Esguerra, Concepcion, Jr. and Martin, JJ., concur.1äwphï1.ñët
Separate Opinions
FERNANDO, J., concurring and dissenting:
As was made, clear at the opening of the learned and comprehensive, ably-penned decision of the Court through Justice Antonio, I am for the granting of petitioner's motion for withdrawal. My brethren had thought otherwise and consequently did proceed to discuss the merits of the issues raised. While again I would vote for the transfer of the criminal charges against petitioner to civil courts, it does not mean that I am in total disagreement. Nonetheless, there may be a need for a brief expression of opinion on my part as a mere formal concurrence on some of the points discussed may for some imply an identity of thought lurking dormant and concealed. It is better to avoid any misunderstanding. Moreover, at least to my mind, it would make even more apparent the truth that there can be no such thing as complete objectivity in constitutional law, a field where there are no absolutes, every constitutional question involving a balancing of competing values. It may also serve, hopefully, to illustrate that orthodoxy in juridical thought is not per se antithetical to the professed aims of an innovative legal order. It gives me an opportunity likewise to acknowledge the neat and logical pattern to the decision that strengthens its plausibility. The principles of law announced flow from the basic premise of the stern necessities of martial law. What bothers me is that from the standpoint of tried and tested concepts in constitutional law, there would seem to be a need for further refinement as to the scope of such doctrines and for clarifying differentiation. That, for me at least, would have been desirable. The apprehension is entertained that as worded in a rather all-encomassing manner, they may yield the impression of a total surrender to the pressure of events and the demands of the times. Candor though compels the admission that in the final analysis juridical theories cannot afford to be insensible to political and social realities. Now for the grounds of my concurrence and my dissent.
1. In the belief that petitioner's motion to withdraw should be granted, I am compelled to dissent.ℒαwρhi৷ This is with due recognition of the principle that the Court is vested with discretion to grant or refuse such a plea. This notwithstanding, I am fully persuaded that the more appropriate response is one of acceding to petitioner's prayer that all cases filed on his behalf in this Court be terminated. The assumption must be that before he did arrive at such a conclusion, he had weighed with care and circumspection all the relevant aspects of the situation. It could very well be that he was prompted to take such a move to avoid further anxiety and worry on his part, considering that the ultimate outcome could belie expectations and frustrate hopes. At any rate, with his mind thus made up and without any compelling reason, in my mind, for the Court to keep the case in the docket, the discretion should be exercised in his favor. Nor does the fact that he used rather harsh language in the reasons given by him for his motion of withdrawal militate against his plea. There must be more understanding shown for the state of his physical and mental health after this long period of confinement, and of late of his depriving himself of the daily sustenance. What is more, the cutting edge of his sharp and pointed words may be blunted by the performance of this Court, which in the ultimate analysis is the ultimate criterion as to whether or not it has adequately discharged its responsibilities or lived up to the trust reposed in it. The judgment is for the entire constituency of informed and concerned citizens, not of petitioner alone. As for any individual Justice, I would assume that what matters most is the verdict of his conscience.
2. Now as to the nature of my concurrence which has to be further qualified. Right at the outset, may I make clear that I join my brethren only to the extent that the conclusion arrived at by them conforms to what I had previously expressed in my separate opinions in Aquino v. Ponce Enrile1 and Aquino v. Commission on Elections.2 It follows that where the opinion of the Court reflects the stand I took, I am in agreement. More specifically, on the question of the scope of the competence of a military commission, I would predicate my vote on the constitutional provision that affixes to General Orders Nos. 8, 12, and 39 the status of being "part of the law of the land."3 With due recognition of the vigor with which counsel for petitioner had pressed the point that such a character cannot be impressed on the aforesaid general orders if found in conflict with the present Constitution, I still find difficulty in according complete acceptance to such a view. To do so in my opinion would mean closing one's eyes to what was intended by the 1971 Constitutional Convention insofar as it did provide for the continued existence of a military commission with such powers as were then exercised. This is not to imply though that in no case may a Presidential proclamation, order, decree, or instruction be challenged in appropriate suits for lack of conformity to a specific provision found in the present Constitution.
3. It is to be stressed further that were it not for the above mandate of the Transitory Provisions, the submission of petitioner as to a military commission being devoid of jurisdiction over civilians elicits approval. The controlling principle, to my mind, is that supplied in the opinion of the United States Supreme Court in Duncan v. Kahanamoku,4 a decision impressed with the greatest relevance inasmuch as it interpreted the specific section found in the Hawaiian Organic Act,5 which was also a feature of the Philippine Autonomy Act,6 the source of the martial law provision in the 1935 Constitution.7As set forth in the Duncan opinion penned by Justice Black: "Our question does not involve the well established power of the military to exercise jurisdiction over members of the armed forces, those directly connected with such forces, or enemy belligerents, prisoners of war, or others charged with violating the laws of war. We are not concerned with the recognized power of the military to try civilians in tribunals established as a part of a temporary military government over occupied enemy territory or territory regained from an enemy where civilian government cannot and does not function. For Hawaii since annexation has been held by and loyal to the United States. Nor need we here consider the power of the military simply to arrest and detain civilians interfering with a necessary military function at a time of turbulence and danger from insurrection or war. And finally, there was no specialized effort of the military, here, to enforce orders which related only to military functions, such as, for illustration, curfew rules or blackouts."8 I see nothing in Moyer v. Peabody 9 that in any way runs counter to the above summary of the scope of the power of military tribunals. That was an action, as pointed out by Justice Holmes, "brought by the plaintiff in error against the former governor of the state of Colorado, the former adjutant general of the national guard of the same state, and a captain of a company of the national guard, for an imprisonment of the plaintiff by them while in office."10Then came this portion of the opinion: "The complaint alleges that the imprisonment was continued from the morning of March 30, 1904, to the afternoon of June 15, and that the defendants justified under the Constitution of Colorado, making the governor commander in chief of the state forces, and giving him power to call them out to execute laws, suppress insurrection, and repel invasion. It alleges that his imprisonment was without probable cause, that no complaint was filed against the plaintiff, and that (in that sense) he was prevented from having access to the courts of the state, although they were open during the whole time but it sets out proceedings on habeas corpus, instituted by him before the supreme court of the state, in which that court refused to admit him to bail and ultimately discharged the writ. 35 Colo. 154, 91 Pac. 738, and 35 Colo 159, 12 L.R.A. (N.S.) 979, 117 Am. St. Rep. 189, 85 Pac. 190. In those proceedings it appeared that the governor, had declared a county to be in a state of insurrection, had called out troops to put down the trouble, and had ordered that the plaintiff should be arrested as a leader of the outbreak, and should be detained until he could be discharged with safety, and that then he should be delivered to the civil authorities, to be dealt with according to law."11 Plaintiff in error would hold the Governor liable for his order of detention in the course of suppressing an insurrection. As the case was dismissed on demurrer by the Circuit Court, it was elevated to the United States Supreme Court. In affirming the judgment, Justice Holmes categorically stated: "When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment. Public danger warrants the substitution of execution process for judicial process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. This was admitted with regard to killing men in the actual clash of arms; and we think it obvious, although it was disputed, that the same is true of temporary detention to prevent apprehended harm."12 It does appear to me then, and this I say with due respect, that it is a rather forced interpretation to extract from the above explicit declaration of Justice Holmes the meaning that military tribunals are vested with jurisdiction over civilians. What was involved was a detention, not a trial. Under the view I entertain that Duncan v. Kahanamoku supplies the applicable principle under the 1935 Constitution, the citations from Winthrop and Fairman found in the opinion of the Court are, for me, less than persuasive.13 What compels concurrence on my part, to repeat, is "the law of the land" section found in the Transitory Provisions. Absent that provision, I would be unable to yield to the conclusion reached by my brethren on the question of jurisdiction.
4. The recognition implicit in the above constitutional precept as to the competence of a military commission to conduct criminal trials of certain specified offenses, to my mind, carries with it the duty to respect all the constitutional rights of an accused. It is from that perspective that a discussion of the due process guarantee gains significance. It has a connotation both substantive and procedural. As to the latter aspect, it is true that it has at its core, to follow the classic formulation of Webster, the requirement of a hearing before condemnation and a process of rational inquiry, but it has a much wider radiation extending to all the legal safeguards enjoyed by a person indicted for an offense. So it has come to be in the United States, where it is deemed to include the right to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized;14 the right to be free of compelled self-incrimination,15 the right to counsel,16 the right to a speedy17 and public18 trial, to confrontation of opposing witnesses,19 to compulsory process for obtaining witnesses,20 the right to a jury trial,21 and the right against double jeopardy.22 Such an approach is not uncongenial in our jurisdiction.23 A related matter is the question of due process and preliminary investigation. I have my reservations as to the tone of certitude in the opinion of the court concerning the latter's being bereft of any constitutional significance. It was the ruling in People v. Sierra24 that "the principle uninterruptedly adhered to [is] that only where an accused is held to answer a criminal offense in an arbitrary or oppressive manner is there a disregard thereof. The requirement of the proceeding not being unjust or unreasonable must be met. This is not to rule out cases where such infirmity could be predicated on a showing that the disregard of this procedural safeguard did infect the prosecution with unfairness. In that sense, what was held in People v. Monton as to such a failing nullifying the proceeding because of the due process protection could still be conceivably relied upon."25 Thus we come to what for me is the crucial issue posed, labeled "the principal question" in the memorandum of petitioner. He would invoke the highly-prized ideal in adjudication announced in Gutierrez, likewise a due process requirement, that a party to a trial "is entitled to nothing less than the cold neutrality of an impartial judge."26 His fears, not devoid of plausibility, proceed from respondent Commission having been "created by the President's Order and subject to his control and direction" being unable to ignore his characterization that the evidence against petitioner was "not only strong [but] overwhelming."27 It is to that implacable tenet of objectivity and neutrality, one of constitutional dimension, that appeal is made. For Gutierrez has been followed subsequently in an unbroken line of decisions with an impressive concord of opinion.28 That for petitioner is to buttress a stand that mirrors the realities, to reinforce the solidity of his position. For was it not Stoessinger who pointed out that there may be at times a tendency difficult to resist in subordinate military agencies to view matters in the light supplied by previous pronouncements of those higher up in the ranks and to respond to situations less on the basis of empirical evidence but more on that of conformity to a position officially taken. I do not have to go that far. There is acceptance on my part that, as the opinion of the Court states, respondent military commission may be trusted to be fair and that at any rate there are still various appeals in the offing. Thus there are built-in defenses against any erroneous or unfair judgment. There is, however, this other point to consider. For the Gutierrez ruling as now interpreted does not only guard against the reality but likewise the appearance of partiality. That would argue strongly for the transfer of the trial of the criminal charges against petitioner to civil courts. Nor would he be the only one thereby benefited. Respondent Commission would be spared from proceeding with a case where from the start, in view of the peculiar circumstances, its bona fides had been open to question, although admittedly lacking factual foundation. The President likewise would be absolved from any adverse, if unfounded, criticism. The greatest gain of course would be for the administration of justice. There is relevance to this excerpt from Palang v. Zosa:29 "This voluntary inhibition by respondent Judge is to be commended. He has lived up to what is expected of occupants of the bench. The public faith in the impartial administration of justice is thus reinforced. It is not enough that they decide cases without bias and favoritism. It does not suffice that they in fact rid themselves of pre-possessions. Their actuation must inspire that belief. This is an instance where appearance is just as important as the reality. Like Caesar's wife, a judge must not only be pure but beyond suspicion. At least, that is an ideal worth striving for. What is more, there is deference to the due process mandate."30 Necessarily then, there is complete acceptance on my part of the thought expressed in the opinion of the Court that the President is not precluded from pursuing further a notion previously expressed by him concerning the possible transfer of the proceedings against petitioner to the civil courts.
6. A few words more. It is to be admitted that in coping with the urgencies of the times, in accordance with what is ordained by the fundamental law and thus have its promise fulfilled, this Court is compelled to enter a domain much less clearly mapped out than before. It has to find its way as best it can with the light supplied by applicable precedents and the promptings of reason at times rendered obscure by the clouds of the emergency conditions. Moreover, there must be an awareness that the complexities of an era may not yield to the simplicities of a constitutional fundamentalism as well as of the pitfalls of merely doctrinaire interpretations. It cannot apply precepts with inflexible rigidity to fast-changing situations. The notion of law in flux carries it far indeed from a fixed mooring in certainty. There must be, it cannot be denied, greater sensitivity to the shifts in approach called for by the troubled present. Nonetheless, to paraphrase Cardozo, care is to be taken lest time-tested doctrines may shrivel in the effulgence of the overpowering rays of martial rule. There must be an effort to remain consistent with the old although relevant to the new. It is my view that thereby there is fidelity to the concept of the Constitution not only as a broad charter of powers to resolve conflicting issues and social problems, a means of ordering the life of the nation in times of normalcy as well as of crisis, but also as a citadel of civil liberties.
Footnotes
1 L-35546, September 17,1974.
2 L-40004, January 31, 1975.
3 According to Article XVII, Section 3, par. 2 of the Constitution: "All proclamations, orders, decrees, instructions, and acts promulgated, issued or done by the incumbent President shall be part of the law of the land, and shall remain valid, legal, binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified, revoked, or superseded by subsequent proclamations, orders, decrees, instructions, or other acts of the incumbent President, or unless expressly and explicitly modified or repealed by the regular national Assembly.
4 327 US 304 (1946).
5 Section 67, ibid, 308.
6 The Philippine Autonomy Act (1916).
7 According to Article VII, Section 10, par. 2 of the 1935 Constitution: "The President shall be commander-in-chief of all armed forces of the Philippines and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion, insurrection, or rebellion. In case of invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under martial law."
8 327 US 304, 313-314.
9 212 US 78 (1909).
10 Ibid, 82.
11 Ibid, 82-83.
12 Ibid, 85.
13 Two American cases were cited in support of the view that due process is not necessarily judicial process, Simon v. Craft, 182 US 427 (1901) and Ballard v. Hunter, 204 US 241 (1907). The relevance is not immediately apparent, especially so as the former dealt with the proceedings taken in connection with a person of unsound mind, and the latter with the administrative process followed for the sale of property for non-payment of levy taxes. Nor is the reference to a secondary authority, 16 Am. Jur. 2nd, of any particular worth.
14 See Mapp v. Ohio, 367 US 643 (1961).
15 Malloy v. Hogan, 387 US 1 (1964).
16 Gideon v. Wainwright, 372 US 335 (1963).
17 Klopfer v. North Carolina, 386 US 213 (1967).
18 In re Oliver, 333 US 257 (1948).
19 Pointer v. Texas, 380 US 400 (1965).
20 Washington v. Texas, 388 US 14 (1967).
21 Duncan v. Louisiana, 391 US 145 (1968).
22 North Carolina v. Pearse, 23 L. ed. 2d 656 (1969).
23 Cf. Abriol v. Homeres, 84 Phil. 575 (1949) and People v. Holgado, 85 Phil. 752 (1950).
24 L-27611, August 30,1972,46 SCRA 717.
25 Ibid, 726-727. People v. Monton is reported in 23 SCRA 1024.
26 Gutierrez v. Santos, L-15824, May 30,1961, 2 SCRA 249.
27 Petitioner's memorandum, 35.
28 Cf. del Castillo v. Javellana, L-16742, Sept. 29, 1962, 6 SCRA 146: People v. Gomez, L-22345, May 29,1967, 20 SCRA 293; Austria v. Masaquel. L-22536, Aug. 31, 1967, 20 SCRA 1247: Pimentel v. Salanga, L-27934, Sept. 18, 1967, 21 SCRA 160; Zaldivar v. Estenzo, L-26065, May 3, 1968, 23 SCRA 533: Luque v. Kayanan, L-26826, Aug. 29, 1969, 29 SCRA 165; Paredes v. Gopengco, L-2 3710, Sept. 30, 1969, 29 SCRA 688; Geotina v. Gonzalez, L-26310, Sept. 10, 1971, 41 SCRA 66: Tobias v. Ericta, Adm. Case No. 242-J, July 29, 1972, 42 SCRA 83; Mateo Jr. v. Villaluz, L-34756, M March 31, 1973, 50 SCRA 19; Umali v. Villaluz, L- 33508, May 25, 19-i3, 51 SCRA 84: Palang v. Zosa, L-38229, Aug. 30, 1974, 58 SCRA 776.
29. L-P,8229, Aug. 30, 1974. 58 SCRA 776.
30 Ibid, 778.
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