Aquino v. Esperon

A military officer may be confined under Article 70 of the Articles of War once charges are preferred under Article 71; the thorough and impartial investigation required by Article 71 is a prerequisite to referral to a general court-martial, not to the filing of charges, and habeas corpus does not reach conditions of confinement.

Maria Fe S. Aquino is the wife of Army Major Jason Laureano Aquino, a regular officer of the First Scout Ranger Regiment, Special Operation Command of the Philippine Army. As a regular officer of the Armed Forces of the Philippines, Major Aquino is subject to military law under Article 2 of the Articles of War, Commonwealth Act No. 408, as amended, and to the procedure prescribed by Executive Order No. 178, the Manual for Courts-Martial, Philippine Army. The legal setting is the military justice system under the Articles of War, particularly the provisions on arrest or confinement and the preferment and investigation of charges.

Maria Fe S. Aquino filed the petition as the wife of Army Major Jason Laureano Aquino, a regular officer assigned to the First Scout Ranger Regiment, Special Operation Command of the Philippine Army. On 3 February 2006, Major Aquino, along with several military men—Major Leomar Jose M. Doctolero, Captain Joey T. Fontiveros, Captain Montano B. Aldomovar, Captain Isagani Criste, and Captain James Sababa—allegedly met at the resthouse of Captain Aldomovar near Camp Tecson, San Miguel, Bulacan to plot a breach of the Camp Defense Plan of Camp General Emilio Aguinaldo and to take over Camp Aguinaldo, as well as the Headquarters of the Philippine Army.

On 26 February 2006, in the wake of the group’s alleged withdrawal of support from the Armed Forces of the Philippines chain of command and the current administration of President Gloria Macapagal-Arroyo, Major Aquino was ordered arrested and confined at the Intelligence Service Group of the Philippine Army in Fort Bonifacio, Taguig, upon the order of Lt. Gen. Hermogenes C. Esperon, who was then the Commanding General of the Philippine Army. On the same day, Lt. Gen. Esperon ordered the Army Inspector General to conduct an investigation to determine: 1) the circumstances attending Major Aquino’s alleged withdrawal of support; 2) the veracity of reports anent the alleged troop movement of some Philippine Military personnel from their respective stations to Manila to join the protest march at Epifanio Delos Santos Avenue on 24 February 2006 with Brigadier General Danilo Lim; and 3) the participation, responsibility and culpability of all Philippine Military personnel involved, if any. A panel of investigators was formed. During the investigation, Major Aquino denied the accusations hurled against him. He intimated, inter alia, that he had no plan nor did he make any pronouncement of withdrawing support from the chain of command, and that he pledged to continue to support the same and the duly constituted authorities.

On 4 March 2006, the panel of investigators submitted its Investigation Report to the Commanding General of the Philippine Army. In its report, the panel found that the troop movement by some military personnel from their respective stations to Manila was illegal, implicating Major Aquino therein. It observed that, based on Major Aquino’s account, he and BGen Lim were closely coordinating the progress of the latter’s talks with the Chief of Staff of the Armed Forces of the Philippines on the night of 23 February 2006, and that other circumstances indicated the leadership of the First Scout Ranger Regiment was preparing some of its personnel to move should the talks succeed, such as the movement of the 7SRC and 9SRC personnel to Manila. The panel noted attendant circumstances: (a) there was no indication that CO, 3SRB sought clearance or informed CO, 901st Bde or CG, 91 D of the troop movement; (b) there was no order or call from HPA or SOCOM for the immediate fill up or augmentation of the 10th SRC at Fort Bonifacio; (c) there was no showing that the troop movement was coordinated, approved and/or cleared with the AOC, the AFPCC or SOLCOM, AFP; (d) when CO, 901st Bde called CO, 3SRB to inquire about any troop movement, the latter answered in the negative and immediately ordered his men to go back to command post; and (e) when the twenty six 7SRC personnel were apprehended, they were in civilian attire but brought with them their bandoleer with magazines and ammunitions which were placed inside their backpack. The record also showed that on 24 February 2006, four Scout Ranger Teams of 26 enlisted personnel from the 7th SRC, 3rd SRB under 1LT Jacon S. Cordero were apprehended by the 31st Infantry Battalion, 9th Infantry Division at Sipocot, Camarines Sur; those apprehended were in civilian outfits but were found to have with them their military uniforms, bandoleers, berets, and ₱2,000.00 each as food allowance and transportation fee. The panel recommended that all implicated officers be immediately relieved from their respective posts and that appropriate charges be filed before the General Court Martial against Major Aquino, among other military officers/personnel, for violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline) of the Articles of War.

Lt. Gen. Esperon referred the panel’s Investigation Report to the Judge Advocate General’s Office (JAGO) of the Philippine Army for review. On 17 March 2006, the JAGO found the existence of probable cause against Major Aquino, among other military officers, for violations of Article 96 (Conduct Unbecoming an Officer and Gentleman), Article 97 (Disorders and Neglects Prejudicial to Good Order and Military Discipline), and Article 67 (Attempting to Begin or Create Mutiny) of the Articles of War. The JAGO recommended that Major Aquino be charged under Articles 96 and 97 for publishing, distributing and discussing the pamphlet entitled “The New Order – The Solution to the Filipino Political Problem,” which was not sanctioned as an official publication of the Armed Forces of the Philippines or the Philippine Army and which tended to urge or incite other military officers and enlisted men to collectively or concertedly defy standing and lawful orders of the Commanding General, Philippine Army as well as the Chief of Staff, Armed Forces of the Philippines. In light of the Supplemental Affidavit of 1Lt Reyes, the JAGO also found basis for charging Major Aquino, Major Doctolero, Captain Fontiveros, Captain Aldomovar, Captain Criste, and Captain Sababan for violation of Article 67 (Attempt to Create a Mutiny), because the officers met at the resthouse of Captain Aldomovar near the so-called tower area in Camp Tecson, San Miguel, Bulacan, on the evening of 3 February 2006 to discuss and plot their plan to breach the Camp Defense Plan of Camp General Emilio Aguinaldo and hatch a plan to take over Camp Aguinaldo and the Headquarters of the Philippine Army. On the basis of the JAGO’s recommendations, Col. Jose R. Recuenco, then Army Provost Marshal, signed under oath a charge sheet against Major Aquino, charging him with violations of Article 67 (Attempting to Begin or Create Mutiny) and Article 96 (Conduct Unbecoming an Officer and Gentleman) of the Articles of War, which was indorsed to the Chief of Staff of the Armed Forces of the Philippines.

On 12 July 2006, Lt. Gen. Esperon issued an Order to the Commanding Officer, 191st MP Bn to exercise custodial responsibility of Major Aquino, together with the other implicated military personnel who withdrew their support from the chain of command in February 2006, and to place them in confinement at the Philippine Army Detention Center, Camp Capinpin, Tanay, Rizal. The same Order designated the Commanding Officer to exercise direct supervision and control over the detainees. On 20 July 2006, the charge sheet against Major Aquino was amended to set forth more detailed specifications of the charges, but it retained the charges against him as stated in the original charge sheet—violation of Article 67 and Article 96 of the Articles of War. On 20 July 2006, the Judge Advocate General of the Armed Forces of the Philippines General Headquarters issued Office Order Number 14-06, creating a Pre-trial Investigation Panel for the case of Major Aquino, et al. On 21 July 2006, petitioner filed a Petition for Habeas Corpus with the CA, praying that the AFP Chief of Staff and the Commanding General of the Philippine Army, or whoever were acting in their place and stead, be directed to immediately produce the body of Major Aquino and explain forthwith why he should not be set at liberty without delay. The case was docketed as CA-G.R. SP No. 95341. In the meantime, the Pre-trial Investigation Panel of the AFP issued a Subpoena/Notice of Pre-trial Investigation to Major Aquino, summoning him to appear in person before the panel and to submit his counter-affidavits and affidavits of witnesses.

Before the CA, respondents denied that Major Aquino was in solitary confinement. According to respondents, Major Aquino was confined in a U-shaped building without any division or partition, a long hall with 50 double-deck beds, and he was confined along with 16 other military personnel who were similarly charged in the 23-24 February 2006 incident. Petitioner alleged that when she proceeded to the detention cell, she was restricted from visiting her husband, and she asserted that these conditions were extreme punishments akin to treating Major Aquino as a convicted criminal. The Pre-trial Investigation Panel had summoned Major Aquino, and he appeared before the panel during the scheduled investigation; he was given the opportunity to submit counter-affidavits and affidavits of his witnesses.

• Formal Charge Under Article 70: Petitioner argued that Major Aquino had not been formally charged because the word “charge” in Article 70 of the Articles of War means that a person is formally charged only after a mandatory pre-trial investigation; the charge sheet and its furnishing are mere preferment, not filing, and formal filing occurs only after the pre-trial investigation when the case is referred to the general court-martial, akin to a preliminary investigation in civilian courts.
• Conditions of Confinement: Petitioner contended that Major Aquino was not restricted to his barracks, quarters, or tent as mandated by Article 70 but was placed in solitary confinement in a maximum security detention cell; petitioner alleged she was restricted from visiting her husband, and that these conditions were extreme punishments akin to treating him as a convicted criminal.

• Conditions of Confinement: Respondent countered that Major Aquino was not in solitary confinement, asserting that he was confined in a U-shaped building without any division or partition, a long hall with 50 double-deck beds, together with 16 other military personnel similarly charged in the 23-24 February 2006 incident.

• Formal Charge Under Article 70: Whether the CA erred in ruling that the preferment of the charge sheet against Major Aquino is equivalent to formally charging him as contemplated in Article 70 of the Articles of War.
• Legal Basis for Solitary Confinement: Whether the CA erred in ruling that there is legal basis in placing Major Aquino in solitary confinement in a maximum security detention facility.
• Conformity with Article 70: Whether the CA erred in ruling that Major Aquino’s solitary confinement in a maximum security detention facility is in accordance with Article 70 of the Articles of War.

• Formal Charge Under Article 70: No. The charge sheet signed under oath is a charge under Article 71; the thorough and impartial investigation is a prerequisite to referral to a general court-martial, not to the filing of charges, so confinement under Article 70 was valid.
• Legal Basis for Solitary Confinement: No. Habeas corpus does not extend to conditions of confinement; it tests only the fact or duration of restraint, and the SC found no punitive hardship in the confinement.
• Conformity with Article 70: No. Article 70 grants military authorities discretion over arrest or confinement, and the gravity of the offense charged may be considered in determining the circumstances of confinement.

• Formal Charge Under Article 70: Major Aquino is subject to military law under Article 2 of the Articles of War because he is a regular officer of the AFP. Article 70 authorizes the commanding officer to place in confinement or arrest any person subject to military law charged with a crime or serious offense. Article 71 requires charges and specifications to be signed under oath by a person subject to military law and provides that no charge will be referred to a general court-martial until after a thorough and impartial investigation. The SC rejected petitioner’s theory that the investigation must precede the charge: Article 71 does not make the investigation a prerequisite before charges may be filed; it is a prerequisite to referral to the general court-martial. The charge comes first and sets the investigation in motion. Here the amended charge sheets were personally signed under oath by Capt. Armando P. Paredes, a person subject to military law, and sworn to in the manner provided by Article 71. Kapunan vs. De Villa upheld confinement even with only substantial compliance with Article 71; here there was compliance. The subsequent Office Order No. 14-06 created a Pre-trial Investigation Panel, a subpoena/notice was issued, Major Aquino was given the opportunity to submit counter-affidavits and affidavits of witnesses, and he appeared at the scheduled investigation. His arrest and confinement were therefore not without due process, and the CA did not err in denying habeas corpus on this ground.

• Legal Basis for Solitary Confinement: The writ of habeas corpus extends to all cases of illegal confinement or detention by which a person is deprived of liberty, or by which the rightful custody of a person is withheld from the person entitled to it. As a general rule, it will not issue where the person alleged to be restrained is in the custody of an officer under a process issued by a court with jurisdiction. Its object is to inquire into all manner of involuntary restraint and relieve the person if the restraint is illegal; it is not a means to redress grievances, seek injunctive relief, or claim damages. The SC held that habeas corpus does not extend to questions of conditions of confinement, but only to the fact and duration of confinement. Even if petitioner’s allegations were considered, the conditions of Major Aquino’s confinement were not a proper subject of the petition. The SC applied Alejano vs. Cabuay: restrictions inherent in detention do not become punishment; courts infer intent to punish when restrictions are arbitrary and purposeless, or when they appear excessive in relation to the purpose they serve. The guidelines are: (1) the action causes the inmate to suffer some harm or disability; and (2) the purpose of the action is to punish the inmate; the harm or disability must be significantly greater than, or independent of, the inherent discomforts of confinement. No specific facts showed the punitive character of the confinement; petitioner did not allege a single act showing harm or disability significantly greater than or independent of the inherent discomforts of confinement. Respondents also denied solitary confinement and described a U-shaped building without partition, a long hall with 50 double-deck beds, shared with 16 other military personnel. The hands-off doctrine supports deference to military custodians on prison matters, especially blanket restrictions on contact visits, as explained in Alejano through Bell vs. Wolfish and Block vs. Rutherford.

• Conformity with Article 70: Article 70 grants discretion to military authorities over the imposition of arrest or confinement of persons subject to military law charged with a crime or serious offense. The decision states that Major Aquino was charged with violations of Article 67, for attempting to begin or create mutiny, and Article 97, for Conduct Unbecoming an Officer and Gentleman. Article 67 provides that any person subject to military law who attempts to create or begins, excites, causes, or joins in any mutiny shall suffer death or such other punishment as a court-martial may direct. In determining the “circumstances” of arrest and confinement under Article 70 for persons charged with a crime or serious offense, the gravity of the offense charged may be considered. The SC therefore found no error in the CA’s ruling that there was legal basis for placing Major Aquino in a maximum security detention facility and that the confinement was in accordance with Article 70. The alleged restriction on visitation did not make the confinement unlawful; the hands-off doctrine and the security rationale for contact-visit restrictions applied.

• Habeas Corpus Tests Fact or Duration, Not Conditions, of Confinement — The writ extends to illegal confinement or detention and to withholding of rightful custody; its object is to inquire into the legality of detention and, if illegal, order release. It is not a means to redress grievances, seek injunctive relief, or claim damages. Applied: Major Aquino’s confinement was legal because charges had been preferred, and the alleged solitary confinement and visitation restriction were conditions of confinement, not proper subjects of the writ.
• Preferment of Charges Under Article 71 Is Not Contingent on Prior Pre-Trial Investigation — Article 71 requires charges and specifications to be signed under oath by a person subject to military law and bars referral to a general court-martial until after a thorough and impartial investigation. The investigation is a prerequisite to referral, not to the filing of charges; the charge comes first and sets the investigation in motion. Applied: the amended charge sheets signed under oath by Capt. Paredes were valid charges, and the later pre-trial investigation did not retroactively invalidate the confinement.
• Article 70 Authorizes Confinement of a Person Subject to Military Law Charged with a Crime or Serious Offense — Article 70 empowers the commanding officer to place in confinement or arrest any person subject to military law charged with a crime or serious offense, as circumstances may require; a person charged with a minor offense is not ordinarily placed in confinement. Applied: Major Aquino was charged with serious offenses under Articles 67 and 96, so his confinement at the Philippine Army Detention Center was authorized.
• Punitive Intent Test for Conditions of Confinement — Restrictions inherent in detention do not become punishment merely because they intrude into a detainee’s desire to live comfortably. Courts infer punitive intent when restrictions are arbitrary and purposeless, or when they appear excessive in relation to the purpose they serve. The requisites are: (1) the action causes the inmate to suffer some harm or disability; and (2) the purpose of the action is to punish the inmate; the harm or disability must be significantly greater than, or independent of, the inherent discomforts of confinement. Applied: no specific facts showed punitive character or punitive hardship in Major Aquino’s confinement.
• Hands-Off Doctrine — Courts decline jurisdiction over prison matters in deference to administrative expertise, especially regarding blanket restrictions on contact visits. Restrictions on contact visits may be upheld as reasonably related to maintaining security because contact visits can lead to hostage-taking, smuggling of weapons, drugs, and contraband. Applied: the alleged restriction on petitioner’s visits did not make Major Aquino’s confinement unlawful.
• Subject to Military Law Under Article 2 — All officers and soldiers in the active service of the AFP are subject to military law. Applied: Major Aquino, a regular officer of the First Scout Ranger Regiment, fell under Article 2 and was governed by the Articles of War and Executive Order No. 178.
• Substantial Compliance with the Oath Requirement for Charge Sheets — A defect in the oath certification of charge sheets does not invalidate them where there is substantial compliance with Article 71. Applied: Kapunan vs. De Villa upheld confinement despite such a defect; here the amended charge sheets were executed in accordance with Article 71.

• "Article 71 does not make the thorough and impartial investigation a prerequisite before charges may be filed against a person subject to military law. Clearly, the thorough and impartial investigation is a prerequisite not to making a charge against a person subject to military law, but to the referral of the charge to the general court martial. It is the charge which comes prior to the investigation, and which sets into motion the investigation." — This is the SC’s core ruling on the first issue: preferment of charges is distinct from referral to a general court-martial, and the investigation does not have to precede the charge.
• "As a rule, therefore, the writ of habeas corpus does not extend into questions of conditions of confinement; but only to the fact and duration of confinement." — This defines the scope of habeas corpus and supports the denial of the petition insofar as it challenged the conditions of Major Aquino’s detention.
• "The fact that the restrictions inherent in detention intrude into the detainees’ desire to live comfortably does not convert those restrictions into punishment. It is when the restrictions are arbitrary and purposeless that courts will infer intent to punish." — This states the punitive-intent test applied to reject the claim that the confinement conditions were unlawful punishment.
• "Evidently, Article 70 of the Articles of War empowers the commanding officer to place, in confinement or in arrest, any person subject to military law charged with a crime or with a serious offense under the Articles of War." — This identifies the legal authority for Major Aquino’s confinement once charges had been preferred.

• Kapunan, Jr. vs. De Villa, G.R. No. L-83177, 6 December 1988, 168 SCRA 264 — Followed; the SC upheld confinement despite only substantial compliance with Article 71, holding that a defect in the oath certification did not invalidate the charge sheets.
• Gamos vs. Abu, G.R. No. 163998, 13 September 2004, 438 SCRA 286 — Cited; the filing of the case against a military petitioner defeated habeas corpus because he stood charged in court-martial proceedings.
• Alejano vs. Cabuay, G.R. No. 160792, 25 August 2005, 468 SCRA 188 — Controlling; habeas corpus is not the proper mode to question conditions of confinement, restrictions inherent in detention are not punishment, and the hands-off doctrine applies.
• In the Matter of the Petition for Habeas Corpus of Atty. Fernando Arguelles, Jr. vs. Maj. Gen. Balajadia, Jr., G.R. No. 167211, 14 March 2006, 484 SCRA 653 — Cited for the scope of the writ of habeas corpus over illegal confinement or detention.
• Navales vs. Abaya, G.R. Nos. 162318 and 162341, 25 October 2004, 441 SCRA 393 — Cited for the general rule that the writ will not issue where the person restrained is in the custody of an officer under a process issued by a court with jurisdiction.
• Andal vs. People, 367 Phil. 154 (1999) — Cited but limited; while habeas corpus may inquire into constitutional violations, the SC held that conditions of confinement are not a proper subject of the writ in this case.
• Bell vs. Wolfish, 441 U.S. 520 (1979) — Cited through Alejano; restrictions inherent in detention do not become punishment, and courts infer punitive intent only when restrictions are arbitrary, purposeless, or excessive.
• Block vs. Rutherford, 468 U.S. 576 (1984) — Cited through Alejano; blanket restrictions on contact visits were upheld as reasonably related to maintaining security under the hands-off doctrine.

• Article 2, Articles of War (Commonwealth Act No. 408, as amended) — Defines persons subject to military law; Major Aquino, a regular officer of the AFP assigned to the First Scout Ranger Regiment, falls under it, so the Articles of War and Executive Order No. 178 govern him.
• Article 70, Articles of War — Authorizes arrest or confinement of any person subject to military law charged with a crime or serious offense, as circumstances may require; the SC used it to uphold Major Aquino’s confinement and to recognize military authorities’ discretion, including consideration of the gravity of the offense.
• Article 71, Articles of War — Requires charges and specifications to be signed under oath by a person subject to military law and bars referral to a general court-martial until after a thorough and impartial investigation; the SC held the investigation is a prerequisite to referral, not to the filing of charges.
• Article 67, Articles of War — Defines mutiny or sedition and penalizes attempts to create or joining it; Major Aquino was charged under it, and its gravity supported the circumstances of confinement.
• Article 96, Articles of War — Defines conduct unbecoming an officer and gentleman; Major Aquino was charged under it in the amended charge sheet.
• Article 97, Articles of War — The General Article covers disorders and neglects prejudicial to good order and military discipline; the panel recommended it and JAGO found probable cause under it, though the amended charge sheet retained Articles 67 and 96.
• Rule 45, 1997 Rules of Civil Procedure — The procedural vehicle for the Petition for Review on Certiorari from the CA decision and resolution.
• Executive Order No. 178 (Manual for Courts-Martial, Philippine Army) — Prescribes procedure in courts-martial and related military tribunals; the SC noted Major Aquino is subject to its applicable provisions.