Aquino, Jr. vs. Military Commission 2

Military commissions lawfully constituted during a validly declared period of martial law possess jurisdiction to try civilians for offenses directly related to the quelling of rebellion and the preservation of public safety, and trial before such tribunals satisfies the constitutional guarantee of due process provided the accused is accorded due notice, a fair and impartial trial, and a reasonable opportunity to prepare his defense.

Petitioner Benigno S. Aquino, Jr. was a civilian political figure arrested on September 23, 1972, pursuant to General Order No. 2-A issued following the proclamation of martial law on September 21, 1972 (Proclamation No. 1081). He was detained at Fort Bonifacio on charges of complicity in a conspiracy to seize political and state power. The 1973 Constitution had come into force on January 17, 1973, during the period of martial law, and its Article XVII governed the President's authority to promulgate proclamations, orders, and decrees essential to the security of the Republic. The President had issued General Order No. 8 (authorizing the creation of military tribunals), General Order No. 12 (defining their jurisdiction, exclusive of civil courts, over crimes against public order, subversion, firearms violations, and other offenses related to the quelling of rebellion), and Presidential Decree No. 39 (prescribing procedures before military tribunals). Petitioner had previously challenged the legality of martial law and his detention in a habeas corpus petition, which the Court dismissed on September 17, 1974, upholding the validity of martial law.

Petitioner Benigno S. Aquino, Jr. was arrested on September 23, 1972, pursuant to General Order No. 2-A, following the proclamation of martial law on September 21, 1972, on grounds of complicity in a conspiracy to seize political and state power. He was detained at Fort Bonifacio, Rizal. Two days later, on September 25, 1972, he filed a petition for habeas corpus questioning the legality of the martial law proclamation and his arrest and detention. The Supreme Court issued the writ, required respondents to answer, and heard the case, but on September 17, 1974, dismissed the petition and upheld the validity of martial law and the legality of petitioner's arrest and detention.

On August 14, 1973, six amended charge sheets were filed with Military Commission No. 2, charging petitioner with illegal possession of firearms, ammunition, and explosives (Criminal Case No. MC-2-19), multiple violations of the Anti-Subversion Act (Criminal Case Nos. MC-2-20, MC-2-21, MC-2-23, and MC-2-24), and murder (Criminal Case No. MC-2-22). The charges alleged, among other things, that petitioner conspired with communist rebel leaders, furnished them arms and funds, and participated in the murder of a barrio captain in Tarlac. On August 23, 1973, petitioner filed the original petition for prohibition seeking to restrain the Military Commission from proceeding with his trial scheduled for August 27, 1973. Because of the urgency, the Court held a hearing on Sunday, August 26, 1973, on the question of whether nine Justices constituted a quorum for constitutional questions, and asked the parties to seek a postponement of the military trial.

When proceedings before the Military Commission opened on August 27, 1973, petitioner questioned the fairness of the trial, discharged both his defense counsel of choice and his military defense counsel, and announced that he did not wish to participate. The proceedings were adjourned. A Special Committee, composed of a retired Supreme Court Justice to be designated by the Chief Justice as Chairman and four members designated respectively by the accused, the President of the Integrated Bar of the Philippines, the Secretary of Justice, and the Secretary of National Defense, was created under Administrative Order No. 355 to reinvestigate the charges. Petitioner refused to name his representative, and former Justice J.B.L. Reyes, asked by the Chief Justice to serve as Chairman and by the IBP to designate a representative, declined both. The Special Committee thus never functioned.

On September 4, 1973, petitioner filed a supplemental petition challenging the legality of the Special Committee's creation, adding the Chief Justice and the Secretary of Justice as respondents. He later sought to file a second supplemental petition challenging the continued enforcement of martial law, citing Presidential statements that martial law was "technically and legally" lifted upon the coming into force of the new Constitution on January 17, 1973. On March 24, 1975, petitioner filed an urgent motion for a temporary restraining order against the Military Commission's order for the perpetuation of testimony of prosecution witnesses. The Court issued a restraining order on April 14, 1975. At the hearing, petitioner's counsel presented a motion to withdraw the petition and all pending incidents. Respondents objected. The motion to withdraw was denied by a vote of seven Justices against three, and the petitions were dismissed by a vote of eight Justices.

• Jurisdiction of Military Commissions: Petitioner argued that as a civilian, his trial by a military commission deprived him of due process, since due process guaranteed by the Constitution for persons accused of "ordinary" crimes means judicial process before regular civil courts.
• Fairness and Impartiality: Petitioner asserted that his trial before the military commission would not be fair and impartial because the President had already prejudged his cases and the military tribunal was a mere creation of the President, subject to his control and direction.
• Validity of Administrative Order No. 355: Petitioner challenged the validity of Administrative Order No. 355, contending that by submitting to the jurisdiction of the Special Committee he would be waiving his right to cross-examination because Presidential Decree No. 77, which applies to the Committee's proceedings, had eliminated cross-examination in preliminary investigation.
• Preliminary Investigation: Petitioner maintained that his constitutional right to due process was impaired when the anti-subversion charges were not preliminarily investigated in accordance with Section 5 of the Anti-Subversion Act (Republic Act No. 1700), but instead under Presidential Decree No. 39 as amended by Presidential Decree No. 77, which he claimed precluded cross-examination of prosecution witnesses and assistance of counsel.
• Perpetuation of Testimony: Petitioner claimed that the Military Commission's order for the perpetuation of testimony of prosecution witnesses was void because no copy of the petition was previously served on him, depriving him of the opportunity to contest the propriety of the taking of depositions.
• Termination of Martial Law: Petitioner insisted that even if the martial law measures were valid initially, they had ceased to be so upon the termination of the emergency, citing Presidential statements that martial law was "technically and legally" lifted with the coming into force of the new Constitution.

• Validity of Martial Law and Military Commissions: Respondents maintained that the proclamation of martial law had been upheld as valid and constitutional by the Court, and that the President possessed broad authority during the emergency to create military tribunals with jurisdiction over offenses directly related to the quelling of rebellion, pursuant to General Orders Nos. 8 and 12 and Presidential Decree No. 39.
• Due Process Satisfied: Respondents countered that the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assured observance of the fundamental requisites of procedural due process, including due notice, a fair and impartial trial, and reasonable opportunity for the preparation of defense.
• Perpetuation of Testimony Proper: Respondents asserted that petitioner knew of the order allowing the taking of depositions on March 14, 1975, and that the proceedings complied with the requirements of Presidential Decree No. 328 and Section 7 of Rule 119 of the Revised Rules of Court, which require only reasonable notice.

• Jurisdiction of Military Commissions: Whether Military Commission No. 2 has been lawfully constituted and validly vested with jurisdiction to try civilians, including petitioner, for the offenses charged.
• Due Process in Military Tribunals: Whether trial of a civilian before a military commission during a validly declared martial law satisfies the constitutional guarantee of due process.
• Fairness and Impartiality: Whether petitioner's trial before the military commission would be unfair and partial due to the President's alleged prejudgment and the tribunal's subordination to the President.
• Validity of Administrative Order No. 355: Whether Administrative Order No. 355, creating the Special Committee to reinvestigate the charges, violates petitioner's right to due process.
• Preliminary Investigation: Whether the curtailment of the right to cross-examine prosecution witnesses in a preliminary investigation under martial law decrees impairs the constitutional right to due process.
• Perpetuation of Testimony: Whether the Military Commission's order for the perpetuation of testimony of prosecution witnesses is valid notwithstanding alleged failure to serve a copy of the petition on petitioner.
• Waiver of Presence: Whether an accused charged with a capital offense may waive his right to be present at proceedings for the perpetuation of testimony before a military commission.
• Continued Validity of Martial Law: Whether martial law measures have ceased to be valid upon the coming into force of the new Constitution.

• Jurisdiction of Military Commissions: Yes. Military Commission No. 2 was lawfully constituted and validly vested with jurisdiction over civilians pursuant to General Orders Nos. 8 and 12 and Presidential Decree No. 39, promulgated under the President's authority under Article XVII, Section 3 of the 1973 Constitution.
• Due Process in Military Tribunals: Yes. Due process does not necessarily mean judicial proceedings in regular courts; a military tribunal of competent jurisdiction, with due notice, opportunity to defend, and trial before an impartial tribunal, satisfies the due process requirement.
• Fairness and Impartiality: No. Prejudice cannot be presumed, and the presumption of innocence extends to the good faith and fair dealing of officials performing their public duties, including the President and members of the military commission.
• Validity of Administrative Order No. 355: No violation. Administrative Order No. 355 was created precisely to afford petitioner a reinvestigation, and the Special Committee's powers include the authority to conduct clarificatory questioning and cross-examination pursuant to Presidential Decree No. 77 and the ruling in Abrera vs. Muñoz.
• Preliminary Investigation: No violation. Preliminary investigation is not an essential part of due process and is a statutory creation that may be modified or amended by law; the curtailment of cross-examination in preliminary investigation does not impair any constitutional right.
• Perpetuation of Testimony: Yes, valid. The taking of testimony or deposition was proper and valid, as petitioner had knowledge of the order and the requirements of reasonable notice under Presidential Decree No. 328 and Section 7 of Rule 119 were satisfied.
• Waiver of Presence: Yes, with modification. Petitioner may waive his right to be present at proceedings for the perpetuation of testimony, except when his presence is required for identification purposes; the Military Commission's order requiring his presence at all times was modified accordingly.
• Continued Validity of Martial Law: Yes. In the absence of any official proclamation of the cessation of the public emergency, the Court had no basis to conclude that the rebellion and communist subversion no longer posed a danger to public safety.

• Jurisdiction of Military Commissions: The Court had previously declared in Aquino vs. Enrile that the proclamation of martial law was valid and constitutional and that its continuance was justified by the danger to public safety. Under paragraphs 1 and 2 of Section 3, Article XVII of the 1973 Constitution, the President had authority to promulgate proclamations, orders, and decrees essential to the security and preservation of the Republic. General Order No. 8 authorized the creation of military tribunals; General Order No. 12 vested them with jurisdiction, exclusive of civil courts, over crimes against public order, violations of the Anti-Subversion Act, firearms violations, and other crimes directly related to the quelling of rebellion. Presidential Decree No. 39 prescribed the procedures before military tribunals. These measures were "part of the law of the land." Petitioner was charged with conspiring with military leaders of the communist rebellion to overthrow the government, furnishing them arms—offenses squarely within the jurisdiction vested exclusively upon military tribunals under General Order No. 12. The jurisdiction operated equally on all persons in like circumstances, as all criminal cases involving subversion, sedition, insurrection, or rebellion pending in civil courts were ordered transferred to military tribunals.

• Due Process in Military Tribunals: Petitioner's argument that due process requires judicial proceedings ignored the reality of rebellion and the existence of martial law. The martial law administrator must have ample means to quell the rebellion, and prompt trial and punishment of offenders have been considered necessary, as mere detention may be inadequate. Citing Winthrop, the Court noted that martial law lawfully declared creates an exception to the general rule of exclusive subjection to civil jurisdiction, rendering both offenses against the laws of war and civil offenses triable by military tribunals. The guarantee of due process is not a guarantee of any particular form of tribunal; it requires due notice, an opportunity to defend, and trial before an impartial tribunal. The procedure prescribed in Presidential Decree No. 39 assured observance of these requisites, including the right to counsel, to cross-examine witnesses, to present evidence, and to receive a copy of the charges.

• Fairness and Impartiality: The Court declined to indulge in unjustified assumptions of prejudice. Prejudice cannot be presumed, especially weighed against the President's legal obligation under his oath to "do justice to every man." The presumption of innocence includes the presumption of good faith, fair dealing, and honesty, accorded to every official in the performance of public duty. There was no justification to presume that the members of the military commission, the Chief of Staff, the Board of Review, and the Secretary of National Defense would all be insensitive to the principles of justice and violate their obligations to act fairly and impartially.

• Validity of Administrative Order No. 355: Administrative Order No. 355 was created precisely because of petitioner's complaint that he was denied the opportunity to be heard in the preliminary investigation. The Special Committee was to be composed of persons "learn in the law, reputed for probity, integrity, impartiality, incorruptibility and fairness." Petitioner's contention that submitting to the Committee would waive his right to cross-examination was unfounded, because the Committee was conferred with "all the powers" of officials authorized to conduct preliminary investigations. Under Abrera vs. Muñoz, the power to conduct clarificatory questioning implies the authority to cross-examine witnesses. Section 1(c) of Presidential Decree No. 77 expressly authorized the subpoena of complainant and witnesses and the posing of clarificatory questions.

• Preliminary Investigation: The Constitution does not require the holding of preliminary investigations; the right exists only when created by statute and is not an essential part of due process. Its absence does not impair the validity of a criminal information or affect the jurisdiction of the court. As a statutory creation, it may be modified or amended by law. Citing Bustos vs. Lucero, the Court held that the curtailment of the right to cross-examine witnesses in a preliminary investigation is not of such importance as to offend the constitutional inhibition, since preliminary investigation may be suppressed entirely. The simplification of preliminary investigation under Presidential Decree No. 77, eliminating cross-examination by contending parties, was justified by the necessity of disposing of cases during martial law, especially those affecting national security. Furthermore, Presidential Decree No. 77 specifically granted the right to counsel, and Presidential Decree No. 328 amended Presidential Decree No. 39 to secure the substantial rights of the accused by granting the right to counsel during preliminary investigation.

• Perpetuation of Testimony: Presidential Decree No. 328, governing the conditional examination of prosecution witnesses before trial, was similar to Section 7 of Rule 119 of the Revised Rules of Court. Both required reasonable notice to the accused of the examination or taking of deposition. Petitioner did not dispute that he knew of the order on March 14, 1975. Citing Elago vs. People, the Court held that the order authorizing the taking of depositions and fixing the date and time was the one that must be served on the accused within a reasonable time, so that the accused may be present and cross-examine. Under Wigmore's formulation, the opportunity of cross-examination involves notice and a sufficient interval of time, but actual attendance of the party obviates any objection on the ground of insufficiency of time.

• Waiver of Presence: The Court traced the history of the accused's right to be present at trial from U.S. vs. Karelsen and U.S. vs. Bello through Diaz vs. United States and People vs. Francisco, culminating in People vs. Avanceña, which laid down that in capital offenses the right to presence is indispensable and cannot be waived. However, the 1973 Constitution changed this rule by providing 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." As a general rule, any constitutional or statutory right may be waived if not against public policy. The right to be present, like other constitutional rights (to counsel, to be informed of the accusation, to speedy and public trial, to meet witnesses face to face), was conferred for the accused's protection and benefit and may be waived. Both Section 7 of Rule 119 and Presidential Decree No. 328 expressly provide that failure or refusal to attend the examination or taking of deposition shall be considered a waiver. Six Justices ruled that petitioner may waive his presence at all stages; five Justices agreed except when identification was required. The composite result was that the Military Commission's order requiring petitioner's presence at all times was modified: his presence shall be required only when he is to be identified. People vs. Avanceña was thus pro tanto modified.

• Continued Validity of Martial Law: The Court adverted to its ruling in Aquino vs. Enrile that the communist rebellion which impelled the proclamation of martial law had not abated. In the absence of any official proclamation by the President of the cessation of the public emergency, there was no basis to conclude that the rebellion and communist subversion no longer posed a danger to public safety. The Court also noted that an accused tried before a military tribunal enjoys specific constitutional safeguards: the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation, to meet witnesses face to face, to have compulsory process, and to be exempt from being a witness against himself. The presumption of innocence can only be overcome by proof beyond reasonable doubt, and the rules of evidence generally recognized in criminal cases apply.

• Jurisdiction of Military Commissions over Civilians during Martial Law — When martial law is validly declared, military commissions may be lawfully constituted and vested with jurisdiction to try civilians for offenses directly related to the quelling of rebellion and the preservation of public safety. This jurisdiction operates equally on all persons in like circumstances and is exclusive of civil courts for the specified categories of offenses. The authority derives from the President's power under Article XVII, Section 3 of the 1973 Constitution to promulgate proclamations, orders, and decrees essential to the security of the Republic.

• Due Process Not Limited to Judicial Proceedings — Due process of law does not necessarily mean a judicial proceeding in regular courts. The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, with accusation in due form, notice, opportunity to defend, and trial before an impartial tribunal, satisfies the due process requirement. Due process, in its procedural aspect, requires no particular form of procedure but implies due notice, an opportunity to defend, and a manner consistent with essential fairness.

• Preliminary Investigation Not Essential to Due Process — Preliminary investigation is not a fundamental right guaranteed by the Constitution. It is not an essential part of due process of law. Its absence does not impair the validity of a criminal information or affect the jurisdiction of the court. As a creation of statute, it may be modified or amended by law, including the curtailment of the right to cross-examine witnesses in the preliminary investigation.

• Waiver of Right to Be Present at Trial — Under the 1973 Constitution, trial may proceed notwithstanding the absence of the accused after arraignment, provided he has been duly notified and his failure to appear is unjustified. The right to be present at trial, like other constitutional rights of the accused, was conferred for his protection and benefit and may be waived, even in capital offenses, except when the accused's presence is required for identification purposes. People vs. Avanceña is modified pro tanto.

• Presumption of Regularity and Good Faith of Public Officials — Prejudice cannot be presumed, especially when weighed against the confidence reposed in the President and his legal obligation under his oath to do justice. The presumption of innocence includes the presumption of good faith, fair dealing, and honesty, accorded to every official in the performance of public duty.

• "The guarantee of due process is not a guarantee of any particular form of tribunal in criminal cases. A military tribunal of competent jurisdiction, accusation in due form, notice and opportunity to defend and trial before an impartial tribunal, adequately meet the due process requirement. Due process of law does not necessarily means a judicial proceeding in the regular courts." — This passage articulates the ratio decidendi on the due process issue, establishing that military tribunals can satisfy constitutional due process during martial law.

• "The Constitution 'does not require the holding of preliminary investigations. The right exists only, if and when created by statute.' It is 'not an essential part of due process of law.'" — This formulation, citing prior jurisprudence, defines the doctrinal basis for holding that the curtailment of cross-examination in preliminary investigation under martial law decrees does not violate due process.

• "preliminary investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the constitutional prohibition." — Quoted from Bustos vs. Lucero, this passage provides the canonical statement justifying the simplification of preliminary investigation procedures during martial law.

• "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." — This quotation of the 1973 Constitution provision forms the textual basis for modifying the rule in People vs. Avanceña and allowing waiver of presence at perpetuation of testimony proceedings.

• Aquino vs. Enrile, 59 SCRA 183 (1974) — Controlling precedent upholding the validity of the proclamation of martial law and the legality of petitioner's arrest and detention. The Court relied on this ruling to establish that the President possessed broad authority during the emergency and that the communist rebellion had not abated.

• People vs. Avanceña, L-37005 — Previously established the rule that in capital offenses the right of the accused to be present at every stage of trial is indispensable and cannot be waived. The Court in this case modified Avanceña pro tanto in light of the 1973 Constitution's provision allowing trial in absentia.

• Bustos vs. Lucero, 81 Phil. 640 — Established that preliminary investigation is not an essential part of due process and may be suppressed entirely; relied upon to uphold the curtailment of cross-examination in preliminary investigations under martial law decrees.

• Abrera vs. Muñoz, 108 Phil. 1124 — Held that the power of the investigating fiscal or judge to conduct clarificatory questioning implies the authority to cross-examine witnesses; relied upon to negate petitioner's claim that Administrative Order No. 355 stripped him of cross-examination rights.

• Elago vs. People, 84 Phil. 643 — Held that the order of the court authorizing the taking of depositions and fixing the date and time is what must be served on the accused within a reasonable time; relied upon to uphold the validity of the perpetuation of testimony proceedings.

• Diaz vs. United States, 223 U.S. 442 — Modified the earlier rule that the accused must be present at every stage of trial, establishing that where the offense is not capital and the accused is not in custody, voluntary absence operates as a waiver; foundational to the Avanceña ruling which was in turn modified in this case.

• Litton vs. Castillo, L-35992 (Feb. 25, 1975) — Denied a petition challenging the validity of Presidential Decree No. 77, holding that the decree forms part of the law of the land; cited to support the validity of the simplified preliminary investigation procedure.

• Article XVII, Section 3(1) and (2), 1973 Constitution — Authorized the President to promulgate proclamations, orders, and decrees during the period of martial law essential to the security and preservation of the Republic, to the defense of political and social liberties, and to the institution of reforms to prevent the resurgence of rebellion. Applied as the constitutional basis for General Orders Nos. 8 and 12 and Presidential Decree No. 39.

• Article IV, Section 19, 1973 Constitution (last sentence) — 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." Applied to modify the rule in People vs. Avanceña and to hold that petitioner may waive his presence at perpetuation of testimony proceedings.

• General Order No. 8 (Sept. 27, 1972) — Authorized the Chief of Staff, Armed Forces of the Philippines, to create military tribunals to try and decide cases of military personnel and such other cases as may be referred to them. Applied as the legal basis for the creation of Military Commission No. 2.

• General Order No. 12 (Sept. 30, 1972) — Vested military tribunals with jurisdiction, exclusive of civil courts, over crimes against public order, violations of the Anti-Subversion Act, violations of firearms laws, and other crimes directly related to the quelling of rebellion. Applied to establish the jurisdiction of Military Commission No. 2 over the offenses charged against petitioner.

• Presidential Decree No. 39 (Nov. 7, 1972), as amended — Prescribed the rules governing the creation, composition, jurisdiction, and procedure of military tribunals, including the rights of the accused during trial. Applied to determine that the procedural safeguards before the Military Commission satisfied due process requirements.

• Presidential Decree No. 77 (Dec. 6, 1972) — Simplified the procedure of preliminary investigation by eliminating cross-examination by contending parties; granted the right to counsel and the authority to subpoena witnesses and pose clarificatory questions. Applied to uphold the validity of the modified preliminary investigation procedure and the powers of the Special Committee.

• Presidential Decree No. 328 (Oct. 31, 1973) — Provided for the conditional examination of prosecution witnesses before trial, similar to Section 7 of Rule 119 of the Revised Rules of Court, requiring reasonable notice to the accused. Applied to uphold the validity of the perpetuation of testimony proceedings.

• Section 5, Republic Act No. 1700 (Anti-Subversion Act) — Provided the right of the accused to cross-examine witnesses and specified the conduct of preliminary investigation for offenses penalized by prision mayor to death. Distinguished, as the Court held that preliminary investigation is a statutory creation subject to modification.

• Section 7, Rule 119, Revised Rules of Court — Governs the deposition of witnesses for the prosecution, requiring the presence of the defendant or reasonable notice to attend; provides that failure to attend constitutes a waiver. Applied in parallel with Presidential Decree No. 328 to uphold the perpetuation of testimony and the waiver of presence.

• Section 11, Rule 56, Revised Rules of Court — Governs the denial of a motion to withdraw a petition when the required number of Justices does not vote in favor. Applied to deny petitioner's motion to withdraw, as only three Justices voted to grant while seven voted to deny.

Aquino, Concepcion, Jr., and Martin, JJ., concurred. Makalintal, C.J. took no part. The Chief Justice inhibited himself, having been named as a respondent in petitioner's supplemental petitions. Barredo, J., filed a concurring opinion. Castro and Fernando, JJ., filed concurring and dissenting opinions.

• Teehankee, J. — Joined by Muñoz-Palma, J., filed a dissenting opinion. The text provided does not contain the substance of the dissenting reasoning; the dissent is noted in the case header but its content is not reproduced in the decision text.

• Castro, J. — Filed a concurring and dissenting opinion, joined by Fernando, J. The text provided does not contain the substance of the separate reasoning; the opinion is noted in the case header but its content is not reproduced in the decision text.