MALACAŅANG
M a n i l a
PRESIDENTIAL DECREE No. 978 August 17, 1976
AMENDING THE APPELLATE REVIEW PROCEDURE IN MILITARY TRIBUNAL CASES AS PROVIDED IN PRESIDENTIAL DECREE NO. 39, AS AMENDED BY PRESIDENTIAL DECREE NO. 566, AND IN COURT-MARTIAL CASES AS PROVIDED IN COMMONWEALTH ACT NO. 408, AS AMENDED
WHEREAS, under Presidential Decree No. 39, as amended by Presidential Decree No. 566, there is unnecessary duplication and waste of effort in the appellate review process in cases tried by military commission and provost courts created by pursuant to General Order No. 8, dated September 27, 1972, and Presidential Decree No. 39;
WHEREAS, a military justice system interpreted by a civilian appellate body will increase stability in the administration of military justice and promote confidence of military personnel and the civilian populace in the overall fairness of the military justice system;
WHEREAS, a simplified appellate review procedure for military tribunal cases will be conducive to the speedy administration of military justice;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the new Constitution of the Philippines and as Commander-in-Chief of all armed forces of the Philippines, and pursuant to Proclamations Nos. 1081 and 1104, dated September 21, 1972 and January 17, 1973, respectively, and to make more effective, just, speedy, and fair the administration of the military justice system, do hereby order and decree as part of the law of the land the following amendments to the appellate review system in military tribunal cases prescribed in Presidential Decree No. 566, and in general court-martial cases and special court-martial cases involving bad conduct discharge as provided in the pertinent Articles of War for the Armed Forces of the Philippines;
Section 1. Initial Action on Record. (a) Review by Staff Judge Advocate/Legal Officer or AFP Board of Review Every record of trial by military commission or provost court shall be forwarded to the staff judge advocate/legal officer of the convening authority for review before the latter acts thereon. The staff judge advocate/legal officer shall submit his opinion in writing to the convening authority regarding the legal sufficiency of the record of trial in which there has been a finding of guilty, the appropriateness of the sentence, and any errors of law which may have been committed injuriously affecting the substantial rights of the accused. If the trial resulted in a finding of not guilty or acquittal of all the charge or charges and specification or specifications, the review shall be limited to questions of jurisdiction.
For purposes of this initial review, the Judge Advocate General, AFP shall, as may be directed by the Chief of Staff, AFP, create in his office as many AFP Boards of Review as he may deem proper to conduct the review of a record of trial for the Chief of Staff, AFP, in lieu of the review of his staff judge advocate. The Judge Advocate General, AFP, shall prescribe uniform rules of procedure for the AFP Boards of Review.
(b) Action by the Convening Authority The convening authority may approve the findings of guilty and the sentence or such part thereof as he finds correct in law and fact. As used in this decree, the term "convening authority" refers to the person who convened the court, a commissioned officer commanding for the time being, or a successor in command.
(c) Rehearing Where the convening authority disapproves the findings of guilty of the military commission or provost court, he may order a rehearing, except where the disapproval is based on lack of legally sufficient evidence to support the findings and sentence. If he does not order a rehearing, he may order the dismissal of the case: Provided, that such a dismissal shall not be final with respect to the cases which are required to be reviewed by the Court of Military Appeals and/or the President of the Philippines as provided in Section 2(a) and 4 of this decree. Where the military commission or provost court had no jurisdiction over the offense and person of the accused, the convening authority shall take the appropriate action.
(d) Sentence Immediately Executory All sentences of military commissions and provost courts shall immediately executory upon approval thereof by the convening authority, except those which are required to be reviewed by the Court of Military Appeals and/or the President of the Philippines as provided in Section 2(a) and 4 of this decree.
Section 2. Review by Court of Military Appeals. (a) Where Required The Judge Advocate General, AFP, shall refer to the Court of Military Appeals every record of trial by military commission or provost court in which the sentence as approved, or disapproved without a rehearing being ordered, by the convening authority
i. extends to death;
ii. affects a general or flag officer of the Armed Forces of the Philippines;
iii. involves dismissal of a commissioned officer of the Armed Forces of the Philippines;
iv. confinement of more than six (6) years;
v. fine of more than P6,000.00; and
vi. those affecting any civilian person:
Provided, however, That, except in death sentences, all sentences of military commissions and provost courts based solely upon findings of guilty of a charge or charges and a specification or specifications to which the accused pleaded guilty shall, upon approval thereof by the convening authority, not be subject to further review by the Court of Military Appeals as herein provided.
The Judge Advocate General, AFP, shall likewise refer to the Court of Military Appeals for review every record of trial by military commission on provost court
1. in which the sentence as disapproved, without a rehearing being order, by the convening authority
i. involves suspension or dismissal of a cadet, flying cadet or midshipman of the Armed Forces of the Philippines;
ii. involves dismissal of a probationary second lieutenant of the Armed Forces of the Philippines;
iii. extends to dishonorable discharge or bad conduct discharge;
iv. extends to confinement of more than one (1) year; and
v. involves fine of more than P1,000.00;
2. upon petition of the accused within thirty (30) days from the date he is notified by the Judge Advocate General, AFP, of the promulgation of the military commission or provost court order.
(b) Scope of Court's Review The Court of Military Appeals may act only with respect to the findings of guilty by the military commission or provost court as approved or disapproved by the convening authority. It shall determine the appropriateness of the sentence imposed by the military commission or provost court as approved or disapproved by the convening authority. In considering the records, it may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact and any errors of law which may have been committed injuriously affecting the substantial rights of the accused.
(c) Rehearing The Court of Military Appeals may disapprove the findings of guilty by the military commission or provost court, as approved or disapproved by the convening authority, and order a rehearing, except where the disapproval is based on lack of legally sufficient evidence to support the findings. If it does not order a rehearing, it may dismiss the case.
(d) Action in Accordance with Decision of Court After the Court of Military Appeals has acted on a case, the Judge Advocate General, AFP, shall advise the convening authority to take action in accordance with the decision of the court, unless there is further action by the President of the Philippines as herein below provided.
(e) Annual Survey of Appellate Review Operations The Judge Advocate General, AFP, and the Court of Military Appeals shall meet annually to make a comprehensive survey of appellate review operations and report to the President of the Philippines the number and status of cases reviewed and pending and any recommendation relating to uniformity of policies as to bail or release pending appellate review, sentences, service of sentences, and any other matters considered appropriate.
(f) Creation Composition of Court. There is hereby created a Court of Military Appeals which shall consist of a Presiding Justice and at least four (4) Associate Justices to be appointed by the President of the Philippines from retired justices of the Court of Appeals or Supreme Court of the Philippines and/or individuals not less than forty (40) years old and who have practiced law for not less than ten (10) years at the time of appointment or have held during a like period an office in the Philippine government service requiring admission to the practice of law in the Philippines as an indispensable requisite. The President shall designate from time to time one of the justices to acts as Presiding Justice. The court shall prescribe its own rules of procedure and determine the number of justices to constitute a quorum, provided, however, that the affirmative vote of at least five (5) of the justices is required to sustain a death sentence.
(g) Tenure, Removal, Rank and Emoluments of Justices The justices of the Court of Military Appeals shall hold office until they reach the age of sixty-five years, except the retired justices of the Court of Appeals and/or Supreme Court of the Philippines who are appointed therein, who shall hold office for the period designated in their appointments, renewable for the same period. They may be removed by the President, upon notice and hearing, only for neglect of duty or malfeasance in office, or for mental or physical disability rendering them incapacitated to discharge the duties of their office. If a justice is temporarily unable to perform the functions and duties of his office because of illness or other physical disability, the President may, upon recommendation of the Chief Justice of the Supreme Court, detail a member of the civilian judiciary or appoint a member of the Philippine Bar who possesses the qualifications mentioned in subparagraph (f) of this section to fill the office for the period of the disability. The Presiding Justice and associate justices of the court shall have the rank and receive the emoluments, retirement and other benefits corresponding to those of the Presiding Justice and Associate Justice of the Court of Appeals, respectively: Provided, however, That retired justices of the Supreme Court and Court of Appeals who are appointed to the court may at their option, receive the emoluments and benefits corresponding to their former positions in the Supreme Court or Court of Appeals or their retirement pay: Provided, further, That members of the civilian judiciary who are detailed to the court to fill any vacancy therein caused by the temporary disability of a justice may elect to receive the emoluments and benefits of a justice of the court or of his position in the civilian judiciary.
Section 4. Confirmation of Approval by the President. (a) No sentence of military commission involving death or affecting a general or flag officer of the Armed Forces of the Philippines shall be ordered executed until approved or confirmed by the President of the Philippines.
(b) In any case requiring approval or confirmation by the President as provided herein, the President shall have the power to reverse, confirm, increase the penalty imposed or otherwise modify any decision of the military tribunal or court-martial.
Section 5. Review of Records of Trial by Court-Martial. The Court of Military Appeals herein created shall review every record of trial by general court- martial or special court-martial where the sentence, as approved by the convening authority, requires confirmation by the President of the Philippines as provided in Article of War 47. With respect to such cases, except as provided in the next preceding Section 4(a) of this decree, they shall become final and immediately executory when the findings of guilty and the sentence are approved, or disapproved, without a rehearing being ordered, by the Court of Military Appeals.
Section 6. Applicability of the Indeterminate Sentence Law; etc. In determining the appropriateness of the sentence, the reviewing authorities in a proper case shall apply the provisions of Commonwealth Act No. 4103, as amended, and the pertinent provisions of the Revised Penal Code, as amended, and the other laws, decrees and general orders.
Section 7. Appropriations. There is hereby appropriated out of any funds in the National Treasury not otherwise appropriated the amount of three million pesos for the first year of operation of the Court of Military Appeals. Appropriations for the Court of Military Appeals for succeeding years shall be embodied in the annual appropriations act.
Section 8. Rescission Clause. All provisions of Presidential Decrees, General Orders, Letters of Instructions, the Articles of War and other laws or portions thereof, which are inconsistent with the provisions of this decree are hereby replaced or modified.
Section 9. Transitory Provisions. All records of military tribunal and court-martial cases which are pending review on the effective date of this decree shall be reviewed as herein provided.
Section 10. Effectivity. This decree shall take effect immediately.
DONE in the City of Manila, this 17th day of August, in the year of Our Lord, nineteen hundred and seventy-six.
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