---

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

TEEHANKEE, J, dissenting:

This opinion for the granting of petitioner's withdrawal motion and in view of its denial, for the granting of the writ of prohibition against respondent military commission as prayed for in the petition, is issued pursuant to the Court's Resolution of April 25,1975, which ruled as follows: têñ.£îhqwâ£

... The Court, by a vote of seven to three, Resolved to DENY petitioner's motion for withdrawal of the petition and of all motions and incidents related thereto. Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion, Jr. and Martin, JJ., voted to deny the motion; Fernando, Teehankee and Muñoz Palma, JJ., voted to grant the motion.

There being no sufficient votes to declare that the respondent Military Commission is without jurisdiction over the pending criminal cases filed against the petitioner and that it acted with grave abuse of discretion in conducting the perpetuation of testimony proceedings, the Court Resolved to lift, effective immediately, the restraining order issued on April 8, 1975. Teehankee and Muñoz Palma, JJ., voted to maintain the restraining order.

On the question of waiver of the presence of the petitioner in the perpetuation of testimony proceedings, Fernando, Teehankee, Barredo, Antonio, Muñoz Palma and Aquino, JJ., voted in favor of upholding the petitioner's right of total waiver of his presence; Castro, Esguerra, Concepcion, Jr. and Martin, JJ., voted in favor of qualified waiver, that is, that the accused could waive his presence except in the instances where such presence is needed for his identification by the prosecution witnesses.

The extended reasoned resolution or decision and the separate extended reasoned concurring and/or dissenting opinions will be released next week.

Makalintal, C.J., took no part for being a party respondent.; Makasiar. J., is on leave.

I. I vote for the granting of petitioner's motion to withdraw his petition and all other pending motions and matters. To paraphrase and cite the Chief Justice's reasons in casting a vote for granting a similar motion for withdrawal of petition filed by former Jose W. Diokno in the Habeas Corpus cases1 (which was also defeated for lack of necessary votes), such withdrawal would not emasculate the "issues of paramount public interest" that need to be resolved (as invoked by the majority) for they may be duly resolved in the other cases which remain pending, such as the earlier and urgent lead case of Gumaua vs. Espino and Military Commission No. 22 which raises the same fundamental question of whether military tribunals have jurisdiction to try civilians (wherein petitioner was sentenced on March 16, 1973 to death by firing squad, which sentence was affirmed on September 29, 1973 by the President and which has long been pending decision); and since it is petitioner Aquino's life and liberty that are at stake, his choice to renounce his own petition questioning the jurisdiction of respondent military commission to try the cases filed against him and the subsequent incidents and to remove the case from this Court's cognizance should be respected "regardless of the fact that (one) disagreed with many of his reasons for so doing" since one "could not escape a sense of irony in this Court's turning down the plea to withdraw .... and then ruling adversely to him on the merits of his petition." It may be added that since the majority who voted to deny the withdrawal motion numbers only seven out of ten Justices taking part in the deliberations as of the date of issuance of the Court's Resolution of April 25, 1975 which denied the motion3 the majority opinion would fall short of the required number of eight Justices to render a decision on the merits.4 The Solicitor General's grounds for opposing withdrawal are not persuasive. In his first opposition of April 14, 1975 where he notes that petitioner "has chosen to dramatize his protest by staging a hunger strike. Petitioner's motion is thus silently eloquent in its avoidance of the reasons for (withdrawal)," his prayer that "if the petitioner's motion is granted, it should be with prejudice," is inconsistent with his posture that the petition is premature and with the fact that the charges against petitioner are still pending reinvestigation as ordered by the President. In his second opposition of April 16, 1975, he avers that the Government "seeks only to present the evidence supporting the charges of murder, illegal possession of firearms and subversion against the petitioner," and if this be so, petitioner's withdrawal of his petition at bar precisely clears the way of all judicial obstacles for the prosecution to do so.

Petitioner's withdrawal should be properly granted in pursuance of the established principle that the judicial power is exercised only when necessary for the resolution of an actual case and controversy, particularly in view of the respondents' stand in their answer that the petition has been prematurely filed.

Judicial abstention then would provide the Court with time and opportunity to ponder and deliberate on the basic constitutional questions involved and their ramifications which concern inter alia the supremacy of civilian authority over the military, the right of civilians to judicial process as against the executive process of military tribunals, the upholding of Judicial Power as vested by the Constitution in the Supreme Court and in such inferior courts as may be established by law and the recognition of the individual's liberties as guaranteed by the Bill of Rights even in a state of martial law.

II. Since the majority has nevertheless resolved to go into the merits of the case and the transcendental constitutional issues, a brief statement of the factual background is required for the proper consideration of the issues on the merits.

Petitioner (after having been served on August 11 and 18, 1973 at his detention quarters with copies of the six criminal charges filed against him with respondent military commission) filed on August 23, 1973 his original petition at bar for prohibition questioning the jurisdiction of military tribunals in the absence of a state of war or belligerency over civilians like him particularly, for civil offenses allegedly committed before the proclamation of martial law and complaining of violation of his constitutional rights in that he was deprived of due process and the vested right to preliminary investigation as provided by law and the assistance of counsel with right to cross-examine the witnesses against him.

Petitioner further alleged that the military tribunals are mere instruments and subject to the control of the President as created by him under the General Orders issued by him as Commander-in-Chief of the Armed Forces of the Philippines,5 and that he had already been publicly indicted and adjudged guilty by the President of the charges in a nationwide press conference held on August 24, 1971, following the Plaza Miranda bombing of August 21, 1971 and the suspension of the privilege of the writ of habeas corpus under Proclamation No. 889 on August 23, 1971.

The Court set an urgent preliminary hearing on August 26, 1973 (a Sunday) on the question of whether with its membership then on only nine (9) Justices, it had the required quorum to take cognizance of the petition. No further action was taken by the Court for following petitioner's refusal to participate in the arraignment and trial set on August 27, 1973, the President issued on August 28, 1973 Administrative Order No. 355, creating a special five-member committee to "reinvestigate the charges against Benigno S. Aquino, Jr. and others," composed of a retired Supreme Court Justice to be designated by the Chief Justice as chairman and four members to be designated respectively, by the accused-petitioner himself, the president of the Integrated Bar of the Philippines, the Secretary of Justice and the Secretary of National Defense, with the proviso that "should the accused decline to designate a representative to the committee, the Chief Justice shall designate someone in his stead and expressly stating the following premises and objectives: têñ.£îhqwâ£

WHEREAS, Benigno S. Aquino, Jr. and his Counsel have repeatedly complained, orally and in writing that the accused has been denied his constitutional right to due process and have openly questioned the regularity and fairness of the application to him of the established procedure sanctioned by law and practice;

WHEREAS, although the Prosecution Staff is assumed to have conducted a fair and impartial initial investigation, it is desirable to reassure the accused that he continues to enjoy his constitutional right to due process and to remove any doubt whatsoever in the mind of anybody that only after finding a prima facie case against him were charges filed;

WHEREAS, it is necessary for the above purpose that a Committee be created to conduct a re-investigation of said charges to demonstrate that everything is being done to insure utmost fairness, impartiality and objectivity in the prosecution of the charges against the accused and to determine whether really there is reasonable ground to believe that the offenses charged were in fact committed and the accused is probably guilty thereof.

x x x           x x x          x x x

The Committee shall convene immediately, conduct the preliminary investigation in the most expeditious manner and submit its findings to the Secretary of Justice.

To prevent a failure or delay of justice, any testimonial evidence presented before the Committee may be used in any proceeding or action before any court or tribunal, civil or military, without need of presenting the witness or witnesses who testified in case such witness or witnesses have died or left the country or become unable to testify.6

The charges against petitioner and his co-accused were thus brought back to the stage of preliminary investigation. On August 30, 1973, respondent military commission met and ordered that the hearing of the cases be postponed indefinitely to await the outcome of the re-investigation ordered under the said Administrative Order.

The Secretaries of Justice and of National Defense designated their representatives. The Chief Justice asked retired Justice J. B. L. Reyes, but the latter on August 31, 1973 declined the designation and also declined as IBP president to designate a representative to the special committee, on grounds of illegality of the order. Petitioner likewise declined to designate his representative.

Petitioner filed on September 5, 1973 his first supplemental petition to include these developments and to insist that he be granted his right to preliminary investigation as prescribed by statutory law, to be conducted by the court of first instance as far as the four charges of subversion under R.A. 1700 are concerned. (On October 31, 1973, Presidential Decree No. 328 amending P.D. No. 39 prescribing the rules of procedure for military tribunals under martial law was issued, providing for the perpetuation of testimony in cases pending before military tribunals.)

No action was taken by the Court on this supplemental petition until July 11, 1974 when it issued a resolution requiring an answer thereto which was filed by the Solicitor General on August 21, 1974. On October 31, 1974, petitioner filed a second supplemental petition citing the President's statements to the world press on April 15, 1974 and August 19, 1974 on the "actual removal" of martial law and that "technically and legally, martial law was lifted with the ratification of the Constitution last year (1973)." The Solicitor General filed his answer thereto on December 11, 1974.

Memoranda were filed by petitioner's counsel and by the Solicitor General on March 21, 1975 and March 11, 1975, respectively.

Meanwhile, on March 10, 1975, respondent military commission issued ex parte its order granting the prosecution's motion of March 7, 1975 "to examine and take the deposition of its witnesses" on March 31, and April 1 - 4, 1975 until terminated for perpetuation purposes on the bare allegation that "(T)he petitions of the accused Benigno S. Aquino, Jr. pending in the Supreme Court will take time to resolve resulting in the delay of the perpetuation of the testimonies of the prosecution witnesses...."

Petitioner's counsel filed on March 24, 1975 an urgent motion to restrain respondent military commission from holding the perpetuation proceedings on the grounds among others that the very issue of its jurisdiction to take cognizance of civil offenses allegedly committed before martial law by civilians like petitioner was pending with this Court and that such proceedings would "short-circuit" the Special Reinvestigating Committee created under Administrative Order No. 355 even before such committee has commenced its duty to determine the existence of "reasonable ground to believe that the offenses charged were in fact committed and the accused is probably guilty thereof" and "whether or not petitioner should be held for trial."7

On April 1, 1975, this Court, then composed of ten members issued its resolution that it lacked the "necessary quorum to act on petitioner's said urgent motion.

On April 7, 1975, petitioner's counsel filed an urgent manifestation averring that this Court without a qualified quorum could issue the temporary restraining order prayed for so as not to render the case moot and apprising this Court that after respondent military commission had on April 1, 1975 held, consistently with Elago vs. People8that the perpetuation proceedings are not a part of the trial and granted petitioner's request to be returned to his detention quarters, ruling that he could refuse to be present at the proceedings since he had expressly waived his presence, as allowed in P.D. No. 328, it reversed itself at the military prosecutor's instance on April 4, 1975 and now ruled that the perpetuation proceedings are part of the trial and that petitioner must be present at the proceedings (which would take two to three months according to the military prosecutor's manifestation) and that petitioner must be physically present throughout the proceedings even against his will.

Petitioner's counsel further manifested that petitioner's request to respondent military commission to suspend the proceedings for seven days to allow his counsel time and opportunity to seek appropriate relief from this Court was summarily denied and petitioner then delivered his statement that if denied this "last basic right of a human being ... to be let alone" he would have no alternative "but to go on a hunger strike, as a form of silent protest against a procedure that is intended to humiliate and dehumanize me."

The perpetuation of testimony proceedings thus commenced on April 4, 1975 and continued on succeeding days with the military prosecutor presenting as the first state witness Benjamin M. Bie, Jr. alias Huk Commander Melody, and with petitioner being compelled to be present throughout the proceedings. This witness, Bie together with another listed witness Benjamin Sanguyo alias Huk Commander Pusa were originally co-accused with petitioner in four subversion charges but the charges against them were withdrawn under a "nolle prosequi" order issued by the Secretary of National Defense dated March 15, 1975.

On April 8, 1975, the Court ordered the issuance of a temporary restraining order enjoining respondent military commission from further proceeding with the perpetuation proceedings until the matter is heard and further orders and set petitioner's urgent motion and related incidents for hearing on April 14, 1975. It was at this hearing that petitioner's counsel presented the simple motion to withdraw the petition and all other pending motions in compliance with the petitioner's express wish. In compliance with the Court's instruction at the hearing to inquire into petitioner's reasons for his withdrawal motion, his counsel on the next day, April 15, 1975, filed their manifestation submitting therewith petitioner's 6- page letter of April 14, 1975 addressed to his wife, mother, relatives and friends stating his reasons therefor and for continuing the hunger strike" (he) began ten days ago," inter alia, that "(he) felt that the case (he) had filed since 1973 in the Supreme Court had become meaningless; that he has decided to "place (his) fate and (his) life squarely in the hands of ... Mr. Marcos;" that "The meaning and thrust of (his) absence or presence, in the proceedings before the military tribunal" and he has solemnly vowed to continue his hunger strike as a protest against: "1. the trial of civilians before military tribunals . .; 2. the lack of judicial independence . . for as long as our judges remain casuals'. .; 3. the absence of a genuine free press ... ; (and) 4. the further continuance of martial law and its evils and repressions...."

III. The transcendental character of the constitutional issues raised, dealing as they do with the individual's fundamental liberties as guaranteed by the Bill of Rights even in a state of martial law which concededly is "not a military takeover of civil government functions" 9 and recognized under the 1973 Constitution to which all have pledged loyalty and wherein we are now called upon to discharge the judiciary's great burden of defining its constitutional boundaries, compels my vote on the merits which I cast for the granting of the writ of prohibition prayed for against respondent military commission for the reasons and considerations which are hereinbelow respectfully submitted.

1. Civilians like petitioner placed on trial for civil offenses under general law are entitled to trial by judicial process, not by executive or military process. Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law.10 Judicial power exists only in the courts, which have "exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen."11

Military commission or tribunals are admittedly not courts and do not form part of the judicial system. As further admitted by the Solicitor General in his answer12, "military commissions are authorized to exercise jurisdiction over two classes of offenses, whether committed by civilians or by military personnel either (a) in the enemy's country during its occupation by an army and while it remains under military government or (b) in the locality, not within the enemy's country, in which martial law has been established by competent authority. The classes of offenses are (a) violation of the laws and customs of war and (b) civil crimes, which because the civil courts are closed or their functions suspended or limited, cannot be taken cognizance of by the ordinary tribunals."

Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning.13 In the leading case of Duncan vs. Kahanamoku,14 the U.S. Supreme Court held in setting aside the prison sentences imposed on two civilians by military tribunals that the placing of Hawaii under martial law (after the Japanese Pearl Harbor attack on December 7, 1941) under the Hawaiian Organic Act15 did not include the power on the part of the military governor to supplant civilian laws by military orders and to supplant civil courts by military tribunals, where conditions were not such as to prevent the enforcement of the laws by the courts.

The late Justice Frank Murphy in his concurring opinion therein repudiated the government's appeal to abandon the "open courts" rule on the alleged ground of its unsuitability to "modern warfare conditions where all the territories of a warring nation may be in Combat zones or imminently threatened with long range attack even while civil courts are operating" as seeking "to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights," and observing that "Constitutional rights are rooted deeper than the wishes and desires of the military."

And in Toth vs. Quarles16 the U.S. Supreme Court further stressed that "the assertion of military authority over civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law."

Thus, the President has filled up vacancies in the judiciary and "allayed effectively the fears expressed during the initial days of martial law that the rule of the military would prevail because other countries under martial law had dispensed with civilian courts of justice" and stressed the supremacy of the Constitution at the 38th anniversary rites of the AFP when he told the Armed Forces that "The military is the force that enforces the law, but the civil government is the ruling power in our country," and that "we have stuck to the Constitution. We have pledged loyalty to that Constitution."17

2. Even assuming that military tribunals could validly exercise jurisdiction over offenses allegedly committed by civilians not withstanding the absence of a state of war or belligerency and the unimpaired functioning of the regular courts of justice, such jurisdiction could not encompass civil offenses (defined by the general civil law as per the Revised Penal Code and Republic Act 1700 known as the Anti-Subversion Act) alleged to have been committed by civilians like petitioner in 1965, 1967, 1969, 1970 and 1971, long before the declaration of martial law as of September 21, 1972.

The U.S. Supreme Court aptly pointed out in Toth vs. Quarles, supra in ruling that discharged army veterans (estimated to number more than 22.5 million) could not be rendered "helpless before some latter-day revival of old military charges"18 and subjected to military trials for offenses committed while they were in the military service prior to their discharge, that "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."

The late Justice Black speaking for that Court 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," and that ex-servicemen should be given "the benefits of a civilian court trial when they are actually civilians .... Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service."

More so then should military trials be not sanctioned for civil offenses allegedly committed by civilians like petitioner long before the declaration of martial law and for which they could have been charged then as well as now before the civil courts which have always remained open and their process and functions unobstructed.

The Solicitor General's contention that military tribunals have "competence to try civil crimes relating to the causes justifying the proclamation of martial law"19 in a veiled reference to the subversion charges against petitioner does not meet the essential requirement of the existence of overpowering necessity or emergency to justify the trial of petitioner, a civilian, for the said civil offenses by respondent military commission.

On the contrary, the President's issuance of Administrative Order No. 355 on August 28, 1973 for the reinvestigation of the charges against petitioner by a non-military special committee establishes per se that no serious grounds of overpowering necessity or considerations of national security or emergency stand in the way of recognizing petitioner's right to a civilian trial should the results of the civilian reinvestigation prove adverse to him.

As stated by the present Judge Advocate General in his treatise on martial law, "Necessity limits both the extent of powers that may be exercised under martial law, and the duration of its exercise. No life may be taken, no individual arrested or confined, or held for trial, no property destroyed, or appropriated, no rights of the individual may be curtailed or suspended except where necessity justifies such interference with the person or the property. Any action on the part of the military that is not founded on the reasonable demands of necessity is a gross usurpation of power, illegal, unjustified, and improper. The broad mantle of martial law cannot cover acts illegal because not justified by necessity, nor proper under the circumstances. This principle is based not only upon the fundamental precepts of constitutionalism, but rests on sound reason — that where the action of the matter is not necessary for the public ends of the state they are illegal, and the mere fact that martial law exists will not be a ground for their justification."20

3. Petitioner may not be deprived of his constitutional right to due process by means of the proceedings instituted against him before respondent-military commission, viz:

(a) The summary ex parte investigation by the chief prosecution staff of the JAGO of the charges filed against him deprived him of his right to be informed of the charges against him and of his right to counsel as expressly recognized now by section 20 of the Bill of Rights of the 1973 Constitution.21

(b) he would be deprived of his vested statutory right to a preliminary investigation of the subversion charges against him before the proper court of first instance as required under section 5 of the Anti-Subversion Act, Republic Act 170022 and of the other charges against him before the proper civilian officials and to confront and cross-examine the witnesses against him under Republic Act 5180; (at the least, the special reinvestigating committee created under Administrative Order No. 355 should be activated in order to discharge its assigned task of conducting the preliminary investigation and determining whether or not the petitioner should be held for trial); (c) he would be deprived of the right to be tried by judicial process, by the regular, independent courts of justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers ("trained and oriented along strict rules of discipline and rigid countenance (although) they are human beings with human hearts"23 who are not lawyers (except the law member), but by judges of at least ten years experience in the practice of law whose objectivity and independence are protected by tenure guaranteed by the Constitution and are nurtured by the judicial tradition; and

(d) He would be deprived of the right to appeal to the regular appellate courts and to judicial review by this Court, in the event of conviction and imposition of a sentence of death or life imprisonment which the charges carry.24 Article X, section 1 of the 1973 Constitution expressly provides that the National Assembly (which is vested with the power to define, prescribe and allocate the jurisdiction of the various courts) may not deprive this Court of its jurisdiction over such serious cases, among others. This Court in the exercise of such jurisdiction has consistently exacted the cardinal rule that the prosecution must prove the guilt of the accused beyond a reasonable doubt and required a qualified majority of ten (10) votes for affirmance of the death penalty (which requirement is of course not found in the Commander-in-Chief's review of the decisions of military tribunals).

For the military tribunal to try petitioner under these circumstances is to deny petitioner due process of law as guaranteed under section 1 of the Bill of Rights as well as under section 17 which further specifically ordains that "No person shall be held to answer for a criminal offense without due process of law." The elimination by subsequent decrees of his right to preliminary investigation (with right of counsel and of cross-examination) of the subversion charges before the proper court of first instance under Republic Act 1700 and of other rights vested in him at the time of the alleged commission of the offense which were all meant to provide the accused with ample lawful protection in the enforcement of said Act, such as the basic right to be tried by judicial process and the right of judicial review by this Court would further offend the Constitutional injunction against the enactment of ex post facto laws which would render it easier to convict an accused than before the enactment of such law.25

With all such constitutional safeguards, the Court through Mr. Justice Castro in its decision in People vs. Ferrer26 rendered after the proclamation of martial law, nevertheless enjoined that "even as we uphold the validity of the Anti-subversion Act, we cannot overemphasize the need for prudence and circumspection in its enforcement, operating as it does in the sensitive area of freedom of expression and belief," and set specific basic guidelines to be observed in any prosecution under the Act. Hence, the prohibition against ex post facto laws laws has been aptly described as "a warning against legislative oppression or tyranny" and a provision that "would minimize if not eradicate the possibility of the legislature itself discrediting the state with its palpable disregard of a basic objective, that justice be dispensed with an even hand through the duly established organs with a special fitness for the task."27

Petitioner has thus cited the President's announcement on December 11, 1974 that the persons charged with assassination attempts against him will be tried before the civil courts although the charges were filed with the military tribunals28 and the President's recent issuance on March 6, 1975 of Letter of Instruction No. 225 creating a special five-member panel to conduct an investigation to re-evaluate the evidence against the therein accused and to determine whether an offense has been committed and whether they are probably guilty thereof and if probable cause is found, to file the appropriate charges.29

4. Petitioner's plea that his trial by a military tribunal created by the President and composed of the President's own military subordinates without tenure and of non-lawyers (except the law member) and of whose decision the President is the final reviewing authority as Commander-in-Chief of the Armed Forces deprives him of a basic constitutional right to be heard by a fair and impartial tribunal, considering that the President has publicly declared the evidence against petitioner "not only strong (but) overwhelming" and in petitioner's view thereby prejudged and predetermined his guilt merits consideration.

In petitioner's view, he has been publicly indicted and his guilt prejudged by the President when in a nation-wide press conference on August 24, 1971 following the Plaza Miranda bombing three days earlier of the Liberal Party proclamation meeting, the President charged him and disclosed evidence in the possession of the government linking petitioner to some illegal and subversive activities, in 1965-1971, which are virtually the same charges now filed against him before respondent military commission, and declared the evidence against petitioner "not only strong (but) overwhelming." The President explained on the same occasion that in not acting against petitioner, he had "erred on the side of generosity as well as of liberality hoping that good sense may someday catch up with him" since petitioner was "the only opposition senator left in the Senate" after the bombing, but that he did not know "what will happen later on, because, of course, the military insist that we must not make any exceptions to the general rule."30

While one may agree that the President as Commander-in-Chief would discharge his duty as the final reviewing authority with fealty to his oath "to do justice to every man," particularly because of his renowned legal sagacity and experience, still under the environmental facts where the military appears to have been impressed by the President's appraisal of the evidence and without casting any reflection on the integrity of the members of respondent military commission which petitioner himself acknowledges, the doctrine consistently held by the Court that "elementary due process requires a hearing before an impartial and disinterested tribunal"31 arid that "All suitors ... are entitled to nothing short of the cold neutrality of an independent, wholly free, disinterested and impartial tribunal"32 calls for application in the present case.

This Court in all its jurisprudence on disqualification and inhibition of judges has invariably cited as "a salutary norm ... that he (the judge) reflect on the probability that a losing party might nurture at the back of his mind the thought that the judge had unmeritoriously tilted the scales of justice against him" and applied the yardstick that when the basis has been laid for "the possibility of a trial-being tainted by partiality, this Court can step in to assure respect for the demands of due process" which it has extended primarily for the peace of mind and protection of the accused.33

Respondents' citing of Yamashita vs. Styer34 as justifying the prosecution and trial of civilians by military commissions is in error as that case involved the "trial and punishment of war criminals (which) is an aspect of waging war." Neither is the creation of the People's Court after the last war to try those charged with treason in point, for said court as well as similar courts like the Circuit Criminal Courts which were created by Congress pursuant to its authority under the Constitution and vested with special jurisdiction over certain crimes, were created as judicial courts and part of the judicial system whose decisions were and are subject to review by the appellate courts, unlike military commissions.

5. Prescinding from the issue of respondent military commission's lack of jurisdiction over the charges against the petitioner, the examination of the prosecution witnesses and the perpetuation of their testimony should properly be held before the Special Reinvestigating Committee created under Administrative Order No. 355 for the simple reason that all proceedings before respondent military commission were deemed suspended by virtue of the reinvestigation ordered by the President to determine whether there "really is reasonable ground" to hold petitioner for trial and the perpetuation of testimony given before the said Committee is expressly provided for in the Administrative Order.

It was precisely "to reassure the (petitioner) that he continues to enjoy his constitutional right to due process" and "to insure utmost fairness, impartiality and objectivity" and "to determine whether reality there is reasonable ground to believe that the offenses charged were in fact committed and the (petitioner) is probably guilty thereof' that the President created under Adm. Order No. 355 on August 28, 1973 a special five- member committee "to conduct the preliminary investigation" of the charges against petitioner.

It may be seen from the above-stated premises and objectives that the administrative order was issued by the President pursuant to his "orientation towards the protection of the Bill of Rights (and) the judicial process." As the President himself declared in the same nationwide press conference of August 24, 1971: têñ.£îhqwâ£

I am a lawyer, my training is oriented towards the protection of the Bill of Rights, because if you will remember, I have repeatedly said, that if it were not for the Bill of Rights I would not be here now. If it were not for the judicial process, I would not be President of the Republic of the Philippines....35

In petitioner's urgent motion of March 24, 1975 for a restraining order against the holding of perpetuation of testimony proceedings before respondent military commission, he precisely complained that such proceedings would preempt and render moot the prejudicial question raised by him in the case at bar challenging the commission's jurisdiction to take cognizance of the charges against him and would "short-circuit" the reinvestigation ordered by the President under Adm. Order No. 355 "even before the said committee has performed its duty to determine whether or not petitioner should be held for trial" and notwithstanding that "there is no indication coming from the President of the Philippines that it has outlived its usefulness — functus oficio — or that it is not fit to administer justice to the petitioner."36

While petitioner insisted on his right to a preliminary investigation of the subversion charges by the court of first instance as prescribed by Republic Act 1700, he nevertheless propounded in his March 21, 1975 memorandum that retired Justice J. B. L. Reyes' having declined to act as chairman of the committee and to designate a representative of the Integrated Bar did not mean that the committee "cannot be made to function (since) in the absence of judicial writ or process, there is nothing to prevent the designation of another retired justice of the Supreme Court as chairman, and nothing to prevent the incoming president of the Integrated Bar to designate a representative to the committee."37 As to petitioner's having declined to designate his representative, it has already been pointed out, supra,38 that the said order expressly provides that in such event "the Chief Justice shall designate someone in his stead "

It is evident then that under the said order, the Chief Justice was called upon to fill at least the two vacancies by making the substitute designations as therein provided, which would have enabled the committee to discharge its function with a composition of four members (while awaiting the designation of the fifth member by the IBP president) but that he refrained from doing so as the matter was sub judice because of the pendency of the supplemental petition at bar questioning the validity of the order on the ground that it deprived petitioner of his right to investigation by the court of first instance on the principal charges of subversion.

With the Court's dismissal of the petitions (and petitioner's withdrawal thereof) nothing stands in the way now of activating the said Special Reinvestigating Committee and its discharging its assigned task of "conducting the preliminary investigation" and determining whether petitioner should be held for trial in implementation of the order's express objectives of reassuring petitioner of "his constitutional right to due process" and "insuring utmost fairness, impartiality and objectivity in the prosecution of the charges against (petitioner)."

Such preliminary investigation by the Special Reinvestigating Committee with its diverse membership and emphasis that those designated must meet the qualifications of being "learned in the law, reputed for probity, integrity, impartiality, incorruptibility and fairness and must have had no previous connection in this matter either as counsel or investigator" is certainly far more desirable than the present situation where such grave charges were summarily filed with the military commission against petitioner without his having been previously informed of the charges against him nor given the benefit of any preliminary investigation.

Going by the very standards of "utmost fairness, impartiality and objectivity" set by the President in the Administrative Order, and prescinding from the unsettled question of whether petitioner would have through counsel the right of cross-examination of the witnesses presented against him, it will be readily appreciated that in such preliminary investigation by a non-military special committee wholly composed of civilians, petitioner may then fairly and properly be represented by experienced counsel who can competently handle his defense and at least present timely objections to the admission of incompetent or inadmissible evidence, not to mention that the five men "learned in the law" composing the committee would most likely motu propio rule out any such inadmissible evidence. This would be in contrast to the perpetuation proceedings in the military tribunal where petitioner has discharged all his counsels, civilian and military, because of the lack of jurisdiction, in his view, (as well as per this opinion) of the military commission over civilians like him for alleged pre-martial law civil offenses and the nullity of the proceedings therein and thus has been deprived, although by his own act, of indispensable legal representation and assistance in the proceedings where his very life, liberty and honor are at stake.

The objective of the perpetuation proceedings may properly be achieved by the Special Reinvestigating Committee before whom the testimonial evidence sought to be perpetuated should be presented in the discharge of its assigned task to conduct a preliminary investigation to determine whether or not the charges against petitioner should stand and petitioner made to face trial. Holding the perpetuation proceedings before the committee would dispose of the legal requirements under P.D. No. 328 itself that the proceedings be had before a military tribunal with jurisdiction and "before which a case is pending." Even though technically, as contended by respondents, the cases are still pending with the military tribunal, it seems obvious from the very terms of Administrative Order No. 355 that the charges are in fact deemed withdrawn from the military tribunal and the latter cannot hold any proceedings for as long as the committee has not completed its preliminary investigation and determined thereafter the existence of a prima facie case sufficient to let the charges remain and to require petitioner to face trial. The Administrative Order thus expressly provides for the perpetuation of "any testimonial evidence presented before the Committee" and for its use in any proceeding" before any court or tribunal, civil or military, without need of presenting the witness or witnesses who testified in case such witness or witnesses have died or left the country or become unable to testify."38*

6. Assuming nevertheless that the perpetuation of testimony proceedings could be properly conducted before respondent military commission, petitioner's physical presence at the proceedings could not be compelled by virtue of his express waiver thereof as explicitly allowed by the Constitution and by P.D. No. 328 itself.

On April 1, 1975, respondent military commission had recognized petitioner's right to waive his presence at the proceedings and granted his request to be returned to his detention quarters. But on April 4, 1975, it reversed itself at the military prosecutor's instance and ruled instead that petitioner's presence at every stage of the proceeding is indispensable on the ground, as stated by the Solicitor General, that "the charges against petitioner involve capital offenses and petitioner is in custody and petitioner had claimed in this case that proceedings for the perpetuation of testimony were actually a part of trial."39 Petitioner's submittal that he cannot be compelled to be present at the proceedings even against his will by virtue of his express waiver is meritorious. Whereas previously such right of waiver of the accused's presence in criminal proceedings was generally recognized40 save in capital cases41 leading to the suspension of trial whenever the accused was at large) or where the accused was in custody although for a non-capital offense, the 1973 Constitution now unqualifiedly permits trial in absentia even of capital cases, and provides that "after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified,"42 thus recognizing the right of an accused to waive his presence. P.D. No. 328 under which the perpetuation proceedings are being conducted in military commissions (as the counterpart rule for similar proceedings before the regular civil courts, as provided in Rule 119, section 7 of the Rules of Court) explicitly provides that after reasonable notice to an accused to attend the perpetuation proceedings, the deposition by question and answer of the witness may proceed in the accused's absence and the failure or refusal to attend the examination or the taking of the deposition shall be considered a waiver."43 Thus, an accused's right of total waiver of his presence either expressly or impliedly by unjustified failure or refusal to attend the proceedings is now explicitly recognized and he cannot be compelled to be present as against his express waiver.

Even as among the members of the Court who voted as per the April 25, 1975 resolution in favor of qualified waiver, i.e. that the accused's presence could be required in the instances where his presence is needed for his identification by the prosecution witness, the view was expressed that such presence could be dispensed with if his waiver expressly included an admission of his identification by name by the witnesses-deponents. It should be noted that such an additional requirement would be superfluous because of the total waiver as well as because of the disputable presumption44 established by the rule of evidence of "identity of person from identity of name"45, aside from the many prominent public positions occupied by petitioner through which his identification is made by the prosecution witnesses as noted from their affidavits as submitted by the Solicitor-General.

7. Petitioner's objection to the perpetuation proceedings, particularly if they were to be considered part of the trial, since the very question at issue in the case at bar on military commissions' lack of jurisdiction over pre-martial law civil offenses allegedly committed by civilians like petitioner would be preempted and rendered moot by the proceedings should have been given due consideration by said commission, instead of being used by it to require his presence against his will.

It should be noted that the Solicitor General's second ground for justifying respondent commission's reversal order requiring petitioner's presence was that "petitioner had claimed in this case that proceedings for the perpetuation of testimony were actually a part of trial", without however stating respondents' own stand.

The prevailing doctrine, as enunciated by the Court in People vs. Elago46 appears quite clear that "It is not a trial where the defendant has to introduce his evidence. It is only taking down the statements of the witnesses for the prosecution with opportunity on the part of the defendant to cross-examine them."47 The Court, citing Rule 111 (e) of the 1940 Rules of Court (now reproduced in Rule 115 (f) of the Revised Rules of Court)48 and the great weight of judicial authorities against the admission of a deposition or previous testimony of a witness who is present in court or is available at the actual trial, set aside the appellate court's decision affirming conviction therein and ruled that the trial court and the appellate court "committed reversible error" in admitting the perpetuated testimonies or depositions of the two American prosecution witnesses when they were actually present in court at the time of trial.

The Court thus held that: têñ.£îhqwâ£

It is clear from the rule ... that the testimony or deposition of a witness may be read or submitted in evidence only when the deponent is dead or incapacitated to testify or cannot be found in the Philippines. If he was present in court, there is no need for introducing his deposition in evidence because his testimony is the best evidence especially in a case like the present where the deponent in giving his deposition had not been cross-examined by the defendant, although of course, said failure to cross examine may not be laid at the door of the prosecution.49

The most that can be said then is that the perpetuation proceedings may be conditionally considered part of the trial only when the deponent-witness is at the time of trial dead or incapacitated to testify or cannot with due diligence be found in the Philippines. Absent any of these conditions, it is not a part of the trial and the witnesses must give their testimony anew (not their previous or perpetuated deposition) as the best evidence subject to the crucible of cross-examination.

Hence, petitioner had cause to complain against the military prosecutor's ambivalent posture that "In the first day he argued we must proceed (notwithstanding the pendency before this Court of the petition questioning the commission's lack of jurisdiction) because this is not part of the trial. Now, the ruling adversely was handed down (allowing petitioner's waiver of his presence), but this is a part of the trial, he says."50

8. Withal, these questions presented serious, if not difficult, questions of law, and particularly, the petitioner's right to totally waive his presence at the proceedings presented an important new question that required an authoritative ruling from this Court because of the new provisions of the 1973 Constitution involved.

The granting of petitioner's urgent pleas on April 4, 1975 to be given a period of at most seven days to file a written motion for reconsideration of the commission's reversal order of the same date requiring his presence at every stage of the proceedings (estimated to last from two to three months, according to the military prosecutor51) and to seek relief from this Court, instead of yielding to the stubborn insistence of the military prosecutor that the perpetuation be "done immediately" on the gratuituous assertion that "precisely because if the ground is delay, the witnesses whose testimonies are sought to be presented would have been long dead if perpetuation is held up"52 and summarily denying petitioner's "repeated appeals . . as fast as they were presented" as graphically reported by the press53 would have averted triggering off the hunger strike commenced on the same date by petitioner who felt that he was unjustly denied his right of waiver and the "last basic right of a human being . . to be left alone."

Such an urgent serious plea to be given a reasonable time and opportunity to seek recourse from this Court would have been readily acceded to by a regular court in line with established judicial usage and procedure. The Solicitor General's reply of April 11, 1975 after this Court's issuance of the restraining order of April 8, 1975 suspending further proceedings by the commission-in contrast to the military prosecutor's unyielding stand incongruously branding the filing with this Court of the petition at bar and of the supplemental petitions as "delaying tactics" and "dilatory moves"54 — expressly "welcome(d) any ruling by this Court whether under Presidential Decree No. 328 the presence of the accused is necessary or indispensable." The decision of this Court upholding petitioner's right of waiver vindicates petitioner's assertion before respondent military commission of his right "to keep silent ... to stay alone ... not to participate. ."55 — a right which is his to exercise or not.

9. Respondents have utterly failed to show the existence of "public danger (that) warrants the substitution of executive process for the judicial process" and the setting aside of the constitutional mandate that lodges judicial power in the regular courts of law and not in military tribunals and guarantees civilians the benefits of a civilian court trial. To subject civilians to military trial just like military personnel and troops and enemy belligerents rather than to civilian trial by the regular civil courts is to negate the cardinal principle and state policy of supremacy at all times of civilian authority over the military.55*

In seeking to justify the substitution of the executive or military process by military commissions for the judicial process of preliminary investigation and trial by the regular civil courts with right of appeal to the Supreme Court invoked by petitioner as his constitutional right, the Solicitor General in his memorandum has made a number of bare assertions without even any factual averments or allegations in support thereof, as follows:têñ.£îhqwâ£

Indeed, civil courts may be open and undisturbed in the execution of their functions and yet may be wholly incompetent to avert a threatened danger, or to punish, with adequate promptitude and certainty, the guilty conspirators. In times of rebellion it may often happen that the judges are in active sympathy with the rebels, and courts their most efficient allies. (Ex parte Milligan, 4 Wall. 18L. Ed. 281, 299 [Chase, C.J., concurring.])

There may be other reasons justifying the creation of military tribunals. Judges may be unwilling to try the rebels out of fear or other motives.

x x x           x x x          x x x

In our case, study shows that Communist subversion and propaganda aim at the paralyzation of the will and the terrorism of the population and the government functionary. In many parts of the country the rebels succeeded in intimidating and silencing not only the offended parties and their witnesses but even the judges.

x x x           x x x          x x x

Still another reason for trial by military tribunals is the possibility that the accused may exploit procedural advantages available in the civil courts and render military operations against the rebellion difficult. (Citing a West Virginia case (1921) where the court therein reasoned that "Participants (in an insurrection) arrested and committed to the civil authorities could easily find means of delaying trial, and liberated on bail return to the insurrectionary camp and continue to render aid (and) the civil tribunals... are wholly inadequate to the exigencies of a state of war, incident to an invasion or insurrection.")56

These reflections on the competence of the civil courts find no justification in the facts of public notice and knowledge, to wit:

A number of judges of courts of first instance have been removed with the acceptance of their resignations but there is not a single recorded case where the "judges (were) in active sympathy with the rebels, and courts their most efficient allies"; There is not a single known case since the martial law proclamation of "judges (being) unwilling to try the rebels out of fear or other motives" or of the judges, complainants and witnesses having been intimidated and silenced by rebels;

Neither is there a single known instance of an accused rebel having "exploited procedural advantages available in the civil courts and rendering military operations against the rebellion difficult since those suspected of participation or conspiracy in the communist rebellion have been arrested without right to bail; General Order No. 49 issued by the President on October 4, 1974 restored to the civil courts a large number of criminal cases that were transferred to military tribunals upon the proclamation of martial law on the express premises that "positive steps have been taken to revitalize the administration of justice and the new Constitution authorizes the reorganization of the courts" and "although there still exist areas of active rebellion in the country, on the whole there has been such an improvement in the general conditions obtaining in the country and in the administration of justice as to warrant the return of some of the criminal cases to the jurisdiction of civil courts"; and

These premises of G.O. No. 49 are borne out by the data and published reports. The twenty (20) military commissions (14 ambulatory and 6 regional commissions)57 hearing cases from time to time in marathon hearings as the pressures of the military service allow the military commissions to convene could not conceivably match the work and cases disposition of around three hundred and twenty (320) courts of first instance and circuit criminal courts all over the country working continuously and regularly throughout the year.

The argument of procedural delays in the civil courts and need of prompt and certain punishment has been long cut down by the late Justice Frank Murphy in his concurring opinion in Duncan58 when he stressed that "civil liberties and military expediency are often irreconcilable and that "the swift trial and punishment which the military desires is precisely what the Bill of Rights outlaws. We would be false to our trust if we allowed the time it takes to give effect to constitutional rights to be used as the very reason for taking away those constitutional rights," as follows: têñ.£îhqwâ£

Delays in the civil courts and slowness in their procedure are also cited as an excuse for shearing away their criminal jurisdiction, although lack of knowledge of any undue delays in the Hawaiian courts is admitted. It is said that the military 'cannot brook a delay' and that 'the punishment must be swift; there is an element of time in it, and we cannot afford to let the trial linger and be protracted.' This military attitude toward constitutional processes is not novel. Civil liberties and military expediency are often irreconcilable. It does take time to secure a grand jury indictment, to allow the accused to procure and confer with counsel, to permit the preparation of a defense, to form a petit jury, to respect the elementary rules of procedure and evidence and to judge guilt or innocence according to accepted rules of law. But experience has demonstrated that such time is well spent. It is the only method we have of insuring the protection of constitutional rights and of guarding against oppression, The swift trial and punishment which the military desires is precisely what the Bill of Rights outlaws. We would be false to our trust if we allowed the time it takes to give effect to constitutional rights to be used as the very reason for taking away those rights. It is our duty, as well as that of the military, to make sure that such rights are respected whenever possible, even though time may be consumed.

As already indicated above, it should be noted that no actual case of undue delays in the prosecution of criminal cases in the regular civil courts has been claimed by respondents, nor has it been shown that military necessity or public danger require that petitioner be deprived of his rights to due process and to the cold neutrality of an impartial tribunal under the judicial process, should the reinvestigation ordered by the President bind him over for trial.

10. The Solicitor-General's submittal that "the decrees and orders relating to military commissions are now part of the law of the land and are beyond question" and that "as the trial and punishment of civilians by military tribunals under the circumstances ... are valid and constitutional, objections based on differences between civil and military courts are immaterial" is constitutionally infirm and untenable.

The Solicitor-General's premise is that "with the ratification of the new Constitution martial law as proclaimed by the President became part of the law of the land and now derives its validity from the new constitution"59 and that by virtue of section 3 (2) of the Transitory Provisions60 the decrees and orders on the military commissions are now also part of the law of the land and beyond question states a rather prolix and sweeping concept that cannot be precipitately sanctioned.

Martial law has not become part of the law of the land and beyond question by virtue of the coming into force of the 1973 Constitution. In fact, the said Constitution has precisely reproduced the 1935 Constitution's commander- in-chief clause with power to declare martial law limited to exactly the same causes of invasion, insurrection or rebellion or imminent danger and with exactly the same requirement that the public safety require it.61 Going by the doctrine enunciated in Lansang vs. Garcia62 by a unanimous Court, the existence of factual bases for the proclamation and continuation of martial law may under the said provision be judicially inquired into in order to determine the constitutional sufficiency thereof as well as to circumscribe the constraints thereof, in particular cases where they clash with an individual's constitutional rights, within the bounds of necessity for the public ends and the public safety, as indeed this Court did pass on such questions in the Habeas Corpus cases.63 And as the President expressly stated at his world-wide satellite press conference of September 30, 1974, the duration of martial law is "only as long as necessary" as per the following pertinent excerpt of his statement thereon: têñ.£îhqwâ£

Of course the problem here is, if you say that martial law leads to democracy, how long are you going to maintain martial law? I say again that only as long as necessary. As the constitutionalists put it, necessity gave life to martial law and martial law cannot continue unless necessity allows it to live .64

The cited Transitory Provision, known as the validating provision puts the imprimatur of a law upon the President's acts and decrees under martial law which were not within or beyond his allocated constitutional powers. As aptly stated by Justice Muñoz Palma in her separate opinion in the Habeas Corpus cases, the people could not by the 1973 Constitution have thrown away "all their precious liberties, the sacred institutions enshrined in their Constitution, for that would be the result if we say that the people have stamped their approval on all the acts of the President executed after the proclamation of martial law irrespective of any taint of injustice, arbitrariness, oppression, or culpable violation of the Constitution that may characterize such acts. Surely, the people acting through their constitutional delegates could not have written a fundamental law which guarantees their rights to life, liberty and property, and at the same time in the same instrument provide for a weapon that could spell death to these rights."

The contention that the decrees and orders on military commissions as "part of the law of the land are beyond question" really begs the question, for as was stressed by Justice Muñoz Palma, it would be "incongruous" that while the acts of the regular National Assembly as the "permanent repository of legislative power" are subject to judicial review, "the acts of its temporary substitute, that is, the incumbent President, such as the decrees and orders in question would be claimed to be "beyond question."

Indeed, the majority resolution recognizes that "Of course, from the fact that the President has this range of discretion, it does not necessarily follow that every action he may take, no matter how unjustified by the exigency, would bear the imprimatur of validity."

While the decrees and orders on military tribunals were made part of the law of the land by the cited Transitory Provision (assuming that they had been properly submitted for the purpose) still this general and transitory provision can in no way supersede or nullify the specific allocation of jurisdiction and judicial power to the Supreme Court and the regular courts of justice as established by law under Article X section 1 of the Constitution nor their proper exercise of jurisdiction to the exclusion of non-judicial agencies, under section 8 of Article XVII which provides that: têñ.£îhqwâ£

SEC. 8. All courts existing at the time of the ratification of this Constitution shall continue and exercise their jurisdiction, until otherwise provided by law in accordance with this Constitution, and all cases pending in said courts shall be heard, tried, and determined under the laws then in force. The provisions of the existing Rules of Court not inconsistent with this Constitution shall remain operative unless amended, modified, or repealed by the Supreme Court or the National Assembly. (Art. XVII)

Insofar as the questioned decrees and orders encroached upon the jurisdiction of the regular courts over the trial of civilians, they must be deemed abrogated by the cited provisions of the Constitution itself, in accordance with the established rule that statutes as well as executive orders and regulations that are inconsistent with and transgress the provisions of a new Constitution must be deemed repealed thereby.

As noted in the writer's previous opinions,65 the specific legislative powers granted the incumbent President in section 3 (2) of the article on Transitory Provisions are limited to "modifying, revoking or superseding the incumbent President's validated acts and decrees done or issued prior to the proclaimed ratification on January 17, 1973 of the 1973 Constitution. No post-ratification legislative powers are therein granted the incumbent President and such legislative power or more accurately military power under martial rule that has been exercised by him thereafter (in the absence of a parliament) must rest on the law of necessity of preservation of the State and the decreeing of such necessary measures as will safeguard the Republic and suppress the rebellion (or invasion). On the other hand, section 7 of the same Article expressly reserves to the National Assembly the power to amend, modify or repeal "all existing laws not inconsistent with this Constitution (which) shall remain operative." Among such existing laws whose "amendment, modification or repeal are reserved to the National Assembly are the laws herein involved, viz, the Anti-Subversion Act, Republic Act No. 1700 and the existing Rules of Court66 with their safeguards for the rights of an accused defendant. At any rate, any such presidential decrees and orders cannot prejudice the vested rights of a defendant-accused as to pre-martial law offenses allegedly committed by him nor be given an adverse ex post facto effect against him.

11. Respondents' assumption of the validity of military trials of civilians and conclusion that objections based on differences between civil and military courts are immaterial must necessarily fail.ℒαwρhi৷

It has been shown that respondents have failed to show the existence of some overpowering factor that makes a recognition of petitioner's and other civilians' constitutional rights to due process incompatible with the public safety as to warrant the temporary casting aside or suspension of such rights. On the contrary, the issuance of the reinvestigation order under Administrative Order No. 355 for the non-military Special Reinvestigating Committee created thereunder to conduct a preliminary investigation of the charges against petitioner shows that no element of public safety is herein involved.

The vested rights invoked by petitioner as essential elements of his basic right to due process, which are not granted him under the decrees and orders for his trial by respondent military commission, are substantial and vital, viz. his right to a preliminary investigation as apparently recognized by Administrative Order No. 355 (as to the non-subversion charges) with right to counsel and of cross-examination of the witnesses against him, and the right under the Anti-subversion Act to a preliminary investigation by the proper court of first instance; his right as a civilian to be tried by judicial process, by the regular independent civilian courts presided by permanent judges with tenure and with all the specific safeguards embodied in the judicial process; and his right to appeal in capital cases to this Court wherein a qualified majority of ten (10) affirmative votes for affirmance of the death penalty is required.

The ordinary layman as well as practitioner are totally unfamiliar with the summary rules and procedures of military commissions as compared to the established procedures under the Rules of Court before the civilian courts, which per se places the civilian on trial before a military commission in a disadvantageous position. A cursory review of the transcripts furnished the Court shows these peculiarities that normally would not occur in civilian trials, as follows:

The swearing in at the commencement of the perpetuation proceedings on March 31, 1975 of two newly-appointed members;67

The withdrawal on March 15, 1975 of the charges against Huk Commanders Melody and Pusa who were originally named as co-accused principals in the four subversion charges and their utilization as state witnesses, which according to the commission's law member "automatically takes effect. The military commission cannot pass upon such withdrawal"68 in contrast to the procedure in the civilian courts where the discharge of accused persons to be state witnesses must meet certain requirements in the interest of truth and justice, e.g. that the "defendant (to be discharged) does not appear to be the most guilty" and "has not at any time been convicted of any offense involving moral turpitude" as determined in the judgment of the court69; and

The military prosecutor (designated as trial counsel) acts in his own description as "a 'Glorified Chimoy' of the Military Commission. He acts not only as Prosecutor of Military Commission No. 2 but he acts as a general FACTOTUM or a MAN FRIDAY of this Military Commission. . (and) he prepares the record of the trial."70

As far as is generally known, the military commission at the conclusion of the trial takes a secret written ballot with at least two-thirds of the members present to arrive at its summary findings of Guilty or Not Guilty, without entering a written decision which "shall clearly and distinctly state the facts and the law on which it is based" as is mandatorily required by the Constitution of every decision of a civil court of record.70*

12. The transcendental constitutional issues involved in the case at bar which the majority has resolved to decide on the merits despite petitioner's withdrawal motion call for adjudication on the basis of enshrined principles of constitutionalism and the rule of law, as unequivocably espoused by the President himself. The case at bar asserts the right of civilians to the judicial process of civilian trials by the regular civil courts (particularly for pre-martial law offenses) as against the executive process of trial by military tribunals and hinges on this Court's upholding the principle that the individual in the absence of overpowering necessity or public danger, must be accorded his constitutional rights as guaranteed by the Bill of Rights even in a state of martial law. A corollary principle would be that the continuation of martial law for institutionalization of reforms is not incompatible with recognizing the fundamental liberties granted in the Bill of Rights.

The Bill of Rights of the Constitution specifies the powers that have been withheld from the government and are reserved to the people .71 But the freedom guaranteed by it against the overwhelming power of the State would be meaningless and of no use unless citizens could vindicate and enforce them against the government officials and agencies by proper procedures in the courts. As held by the Court in Garcia vs. Macaraig, "In a system like ours, every exercise of governmental competence, whether coming from the President or from the lowest official, may be challenged in court in an appropriate legal proceeding."72

As was stressed by the late Chief Justice Stone in Duncan, supra, "executive action is not proof of its own necessity, and the military's judgment here is not conclusive that every action taken pursuant to the declaration of martial law was justified by the exigency. In the substitution of martial law controls for the ordinary civil processes, 'what are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, supra (287 US 401, 77 L ed 387, 53 S Ct 190).

The Court's judgment at bar is therefore of the utmost importance since under Article 8, Civil Code, "Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines." As defined by Knovitz "the Constitution and the laws enacted by the legislatures and the judgments and orders of the courts constitute the Rule of Law."

The President has often declared that "The New Society looks to individual rights as a matter of paramount concern, removed from the vicissitudes of political controversy and beyond the reach of majorities. We are pledged to uphold the Bill of Rights and as the exigencies may so allow, we are determined that each provision shall be executed to the fullest, ...."73

While stressing that "martial law ... is a temporary constitutional expedient of safeguarding the Republic"74 and "a temporary phase in the development of our country,"75 the President has thus called for the Constitution to "remain firm and stable," has rejected the "exercise (of) power that can be identified merely with a revolutionary government" that makes its own law76 and has called on every citizen to "remain steadfast on the rule of law and the Constitution", as follows: têñ.£îhqwâ£

. . . Whoever he may be and whatever position he may happen to have, whether in government or outside government, it is absolutely necessary now that we look solemnly and perceptively into the Constitution and try to discover for ourselves what our role is in the successful implementation of that Constitution. With this thought, therefore, we can agree on one thing and that is: Let all of us age, let all of us then pass away as a pace in the development of our country but let the Constitution remain firm and stable and let institutions grow in strength from day to day, from achievement to achievement, and so long as that Constitution stands, whoever may the man in power be, whatever may his purpose be, that Constitution will guide the people and no man, however powerful he may be will dare to destroy and reck the foundation of such a Constitution.

These are the reasons why I personally, having proclaimed martial law, having been often induced to exercise power that can be identified merely with a revolutionary government, have remained steadfast on the rule of law and the Constitution. I would recommend that if the President can do this, it the President can restrain the exercise of his own powers, every citizen for his part should not find it a burden to participate in this act of self-denial and self-abnegation, as an earnest to the future of our race and our people.77

This is but to state that no one should be above or below the law and to reiterate the classic dictum that "The Constitution . . . is a law for rulers and 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."78 In the relatively recent case of Phil. Blooming Mills Employees' Organization vs. Phil. Blooming Mills,79 Mr. Justice Makasiar restated for the Court certain "basic concepts and principles" of constitutionalism, which bear reproducing as they concern the issues at bar, as follows: têñ.£îhqwâ£

(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality is the central core as well as the cardinal article of faith of our civilization. The inviolable character of a man as an individual must be "protected to the largest possible extent in his thoughts and in his beliefs as the citadel of his person."80

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and the scorn and derision of those who have no patience with general principles."81

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw "certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be implied by the courts. One's rights to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote; they depend on the outcome of no elections."82Laski proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was entitled to exercise."83

x x x           x x x          x x x

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill-good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty.

... The motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motive. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness of the infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the liberties of none are safe unless the liberties of all are protected.

... But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must observe.84

If as stressed above uniformly by the President and the cited legal authorities, supra, the freedoms guaranteed by the Bill of Rights are "removed from the vicissitudes of political controversy (and) beyond the reach of majorities and officials" and are established "as legal principles to be applied by the courts" and "may not be submitted to a vote; they depend on the outcome of no elections," then it is respectfully submitted that the principles of fundamental public policy enshrined in the Bill of Rights that guarantee to every individual due process and fair play, regardless of who he is and of whoever may be in power, call for the granting of the petition and at the least for the reinvestigation of the charges against petitioner with "utmost fairness, impartiality and objectivity" as directed in Administrative Order No. 355 itself.

Muñoz-Palma, J., concur.1äwphï1.ñët

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Footnotes

1. Aquino, Jr. vs. Enrile and related cases, 59 SCRA 183, 236 (Sept. 17, 1974).

2 L-36188, filed on January 29, 1973 and deemed submitted for resolution with the filing on May 8, 1973 of the last pleading, petitioner's surrejoinder as required by the Court's resolution of April 26, 1973; see also related case for habeas corpus against execution of death sentence, L- 37586, Gumaua vs. Zagala, et al. filed on Oct. 5,1973 and submitted for decision on July 9,1974.

3 As of release of the Resolution on April 25, 1975, the other two Justices of the present 12-member Court namely, the Chief Justice, disqualified, and Justice Makasiar abroad on leave, have not taken parts Justices Fernando and Palma and the writer voted to grant the withdrawal.

4 Article X, Section 2 (2), 1973 Constitution.

5 General Orders 3, 3-A, 8 and 12.

6 Emphasis supplied.

7 Par. 8, Petitioner's urgent motion of March 24, 1975.

8 84 Phil. 643.

9 President's statement on announcing his proclamation of Martial Law, Sept. 23, 1972.

10 Article X, section 1, 1973 Constitution.

11 Words and Phrases, Perm Ed. Vol. 23, p. 317-318. See Lopez vs. Roxas, 17 SCRA 756 (1966); Scoty's Dept. Store vs. Micaller, 99 Phil 762 (1956).

12 At pages 14 — 16, Answer to Supplemental Petition; Emphasis supplied.

13 Ex parte Milligan, 4 Wallace (U.S.) 127,18 L. ed, 297.

14 327 U. S. 304 (1946).

15 Its Organic Act prior to Hawaii's incorporation as a state of the American Union contained a provision similar to that in our Constitution for the declaration of martial law in case of invasion, insurrection or rebellion or imminent danger thereof, when the public safety requires it.

16 350 U. S. 5, 14 (1955).

17 Philippine Daily Express, Jan. 3,1974, page 4.

18 Chief Justice Earl Warren: "The Bill of Rights and the Constitution," 37 N.Y.U. Law Review, 181.

19 Respondents' memorandum, pp. 12, 20.

20 Santos, Martial Law, 2nd ed., pp. 77-78, citing Winthrop, p. 820; Fairman, p. 48; Wiener, p. 14.

21 SEC. 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence. (Article IV)"

22 This section expressly provides that "No prosecution under this Act shall be made ... (without) a proper preliminary investigation thereof, with notice, ... to the party concerned, who shall have the right to be represented by counsel, to have compulsory process for obtaining witnesses in his favor and to cross-examine witnesses against him ...

23 Brig. Gen. G.S. Santos, AFP JAGO Chief, Phil. Daily Express, April 26,1975, p. 10.

24 Art. X, sec. 5 (2) of the 1973 Constitution; Rule 115, sec. 1 (i).

25 Art. IV, see. 12, 1973 Constitution.

26 48 SCRA 382, 415 (Dec. 27, 1972); see also 56 SCRA 793 (Apr. 30,1974).

27 Fernando's Bill of Rights, 1970 ed., p. 246; See In re: Petition of Kay Villegas Kami, 35 SCRA 429 (1970).

28 Phil. Daily Express, December 12,1974.

29 Idem, April 12,1975.

30 The pertinent text as reported in Manila Times, Aug. 30, 1971, Annex A, petition, reads:

Q: — In the light of all this, Mr. President, do you contemplate any particular action on Mr. Aquino and some other officials, which you have also mentioned?

The President: — Well, I have been asked the question, then why did you not order the arrest of Senator Aquino? And my answer was he has always claimed that he is one of the leaders of the Opposition, and I have erred on the side of generosity as well as of liberality, hoping that good sense may someday catch up with him. That is why I have not acted. I do not know what will happen later on, because, of course, the military insist that we must not make any exceptions to the general rule.

Q: — Mr. President, is the evidence against the senator strong enough to for conviction?

The President: — I believe so, I have not included some of the evidence, but even with what we have, and the testimonies of some of those whom I have presented to you, as well as those who are in the custody of the government, I believe that the evidence is not only strong; it is overwhelming.

Q: — Then, Mr. President, if this is the case under your suspension of the writ of habeas corpus, are you empowered to call the Armed Forces to arrest the senator?

The President: — Yes, I am that I am empowered, yes, even before the suspension of the privilege of the writ of habeas corpus. But now he is the only senator, the opposition senator left in the Senate.

31 Geotina vs. Gonzales, 41 SCRA 66, per Castro, J.

32 Luque vs. Kayanan, 20 SCRA 165, per Sanchez, J.

33 See Umale vs. Villaluz, 51 SCRA 84 (1973), per Makasiar. J.; Mateo, Jr. vs. Villaluz, 50 SCRA 18 (1973) per Fernando, J. and cases cited.

34 75 Phil. 563 (1971).

35 Manila Times, Aug. 30,1971, Annex A, petition.

36 Par. 8, Urgent Motion of March 24, 1975.37 Petitioner's memorandum of March 21, 1975, p. 48.

38 At page 4 hereof.

38* Supra, at page 4 hereof.

39 Respondents' Reply to petitioner's Manifestation dated April 11,1975.

40 People vs. Francisco, 46 Phil. 403 (1924).

41 People vs. Avanceña, 32 O.G. 713 (1933), see Diaz vs. U.S. 222 U.S. 442 (1912).

42 Art. IV, section 19, Bill of Rights.

43 This quoted waiver proviso is identically provided for in Rule 119, sec. 7.

44 Rule 131, see. 5 provides that such 'presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence."

45 Rule 131, sec. 5, par. (w).

46 94 Phil. 643 (1949).

47 Idem, at p. 650.

48 Section 1. Rights of defendant at the trial.-In all criminal prosecutions the defendant shall be entitled: "... "(f) To be confronted at the trial by, and to cross-examine the witness against him. Where the testimony of a witness for the prosecution has previously been taken down by question and answer in the presence of the defendant or his attorney, the defense having had an opportunity to cross-examine the witness, the testimony or deposition of the latter may be read, upon satisfactory proof to the court that he is dead or incapacitated to testify, or cannot with due diligence be found in the Philippines: ..."

49 84 Phil. at p. 651, emphasis supplied. The accused and counsel in this case had refused to take part in the perpetuation proceedings, claiming lack of reasonable notice and had abandoned the session hall.

50 April 3, 1975, t.s.n. p. 53, notes in parentheses supplied.

51 April 4, 1975, t.s.n. p. 33.

52 March 31, 1975 t.s.n., p. 88.

53 Bulletin Today, April 5, 1975.

54 Phil. Express, April 6,1973.

55 April 3, 1975 t.s.n., p. 29.

55* Art. 11, sec. 8,1973 Constitution.

56 Solicitor-General's memorandum, pp. 29-31.

57 Brig. Gen. Guillermo S. Santos, AFP JAGO Chief, Phil. Daily Express. April 26,1975, p. 10.

58 Supra, fn. 14.

59 Solicitor-General's memorandum, at p. 17.

60 "(2) All proclamations, orders, decrees, instructions and acts promulgated, issued, or done by the encumbent 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." (Art. SVII see. 3)

61 The commander-in-chief clause in both Constitutions is identical and reads: "SEC. 12. The Prime Minister [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, or imminent danger thereof, when the public safety requires it, he may suspend the privilege of the writ of habeas corpus, or place the Philippines or any part thereof under martial law." (Art. IX, see. 12, 1973 Constitution and Art. VII, sec. 11 (2) 1935 Constitution).

62 42 SCRA 448, citing Sterling vs. Constantin 287 U.S. 375, 385.

63 Aquino, Jr. vs. Enrile, etc. 59 SCRA 183, 647-648.

64 Phil. Daily Express, Sept. 23, 1974.

65 See writer's separate opinions in Aquino, Jr. vs. Comelec, L40004, Jan. 31, 1975 and in Gonzalez vs. Comelec, L40017, Feb. 22, 1975.

66 Sec. 8 of the Transitory Provisions above-quoted recognizes the power of the Supreme Court or the National Assembly to amend, modify or repeal the Rules of Court.

67 Col. Stefani C. Domingo, appointed 25 March 75; and Capt. Benjamin E. Facto, appointed 20 March 75; March 31, 1975, t.s.n., pp. 5-9.

68 March 31, 1975, t.s.n., p. 18.69 Rule 119, sec. 9, imposing five requirements.

70 March 31,1975, t.s.n. pp. 90-91; emphasis supplied.

70* Art. X, sec. 9, 1973 Constitution.

71 Thomas Jefferson contended in urging that the new U.S. Constitution should include a bill of rights: 'I have a right to nothing which another has a right to take away ... Let me add that a bill of rights is what the people are entitled to against every government on earth ... and what no just government should refuse."

72 39 SCRA 106, 116 (1971), per Barredo, J.

73 President Marcos: "Democracy: a living ideology" delivered May 25, 1973 before the U.P. Alumni Ass'n; Times Journal issue of May 28,1973.

74 President Marcos: Foreword, Notes on the New Society, p. vi.

75 Pres. Marcos: Sept. 20, 1974 satellite world press Conference; Phil. Daily Express issue of Sept. 23,1974.

76 Pres. Marcos at satellite world press conference of Sept. 20, 1974: "(I) insisted that not only individuals but also we ourselves in government and the military be guided by a Constitution and that Constitution be respected. This was one of the agreements with those with whom I met before we agreed to proclaim martial law, and that is, that we would follow the Constitution and not establish a revolutionary form of government and start fighting all over the countryside again." (Phil. Daily Express issue of September 23, 1974.)

77 Pres. Marcos' address on observance of the first anniversary of the 1973 Constitution on Jan. 17, 1974; Phil. Labor Relations Journal, Vol. VII, Jan. 1974, p. 6; emphasis supplied.

78 Ex parte Milligan 4 Wall. (U.S.) 120.

79 51 SCRA 189, 200-201, 220-221; emphasis copied.

80 American Com. vs. Douds 339 U.S. 382, 421.

81 Justice Cardoso, Nature of Judicial Process, 90-93; Tañada and Fernando, Constitution of the Philippines, 1952 ed., 71.

82 West Virginia State Board of Education vs. Barnette, 319 U.S. 624, 638.

83 Laski, The State in Theory and Practice, 35-36.

84 A Living Bill of Rights (1961), pp. 61, 62, 64; 24 SCRA, 690-692: emphasis copied.

In the latest case of Magtoto v. Manguera, etc., L-37201-02, March 3, 1975, Mr. Justice Castro in his dissenting opinion paraphrased Justice Douglas' admonition thus: "the rights of none are safe unless the rights of all are protected; even if we should sense no danger to our own rights because we belong to a group that is informed, important and respected, we must always recognize that any code of fair play is also a code for the less fortunate.

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Separate Opinions

MUNOZ PALMA, J., dissenting:

I concur with the dissenting Opinion of Justice Claudio Teehankee with additional explanation for my vote.

1. On the Motion to withdraw Petition —

From a letter of Benigno Aquino, Jr. of April 14, 1975, addressed to his wife, children, relatives, and friends submitted to the Court and now part of the record of the case (see page 7 of Justice Teehankee's dissenting opinion), I am convinced that petitioner no longer desires to seek redress or relief from this Court. He would rather make of his plight (his continued detention from September 23, 1972, in a military camp and trial before a Military Commission for crimes allegedly committed before the proclamation of Martial Law) a matter of conscience between himself and the President of the Republic, and offer his life for what he believes is a rightful cause. Who am I to stand on the way of this man who offers himself in supreme sacrifice, and is ready to consign his fate to his Maker, for his country and his people?

2. On the merits of the Case —

I vote to grant the Petition for Prohibition because, brushing aside the personalities of the parties involved, that is, the fact that Benigno Aquino, Jr. was a member of the Senate and a known leader of the Opposition at the time martial law was proclaimed and that President Ferdinand E. Marcos believes in the Rule of Law not withstanding martial rule, I am called upon at this moment to lay down a principle of law which will decide the fate, not only of the present generation but also that of Filipinos still to be born. For the main question now at stake — whether or not military tribunals can try and render a verdict on civilians for offenses allegedly committed before or even during martial rule, notwithstanding the fact that civil authority is supreme and civil courts are existing and functioning is supreme and civil courts are existing and functioning under the Constitution — raises before my eyes the gruesome spectre of one, a hundred, a thousand civilian Filipinos being dragged by the mighty arm of the military before its own created and manned tribunals, commissions, etc., for offenses, real or imaginary, and tried and sentenced without the constitutional safeguards attendant to a trial by civil courts (see pages 11-13 of Justice Teehankee's Opinion for these safeguards). True it is, that the picture I conjure before me may not take place at all under the present dispensation because President Ferdinand E. Marcos, as Commander-in-Chief of the Armed Forces, is committed to uphold the Constitution and, as quoted by Justice Teehankee, believes in the protection of the Bill of Rights (see page 32 of Justice Teehankee's Opinion). But what about tomorrow, and the day after tomorrow, when we shall all be gone and the political atmosphere different? Legal precepts which are to protect the basic fundamental rights and liberties of an individual must be laid down not only for the present but for all times and for all conditions. The Bill of Rights must remain firm, indestructible, and unyielding to all forms of pressure, for like Mount Sinai of Moses it can be the only refuge of a people in any crucible they may suffer in the course of their destiny.

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