Ognir vs. The Director of Prisons

A general court-martial convened by a district commander without express authority from the President is not legally constituted; its judgment is void for lack of jurisdiction and may be collaterally attacked through habeas corpus. The appointment of a commander of a military district does not carry with it the power to convene a general court-martial.

Antonio C. Ognir was in the custody of the Director of Prisons when he challenged the legality of the military tribunal that had sentenced him. Article 8 of Commonwealth Act No. 408 specifies which officers may appoint general courts-martial and requires express empowerment by the President for officers not inherently vested with that authority. The case also implicated the availability of habeas corpus to test whether a court-martial was legally constituted.

Antonio C. Ognir was convicted by a General Court-Martial appointed or convened during 1943 in Lanao by Colonel Wendel W. Fertig, Commanding Officer of the 10th Military District of Mindanao, and sentenced to life imprisonment for violation of the 93rd Article of War of the Philippine Army. He filed a petition for habeas corpus against the Director of Prisons, claiming that his imprisonment was null and void because the General Court-Martial was not legally constituted; the District Commander who appointed or convened it had no authority to do so, and therefore the judgment was null and void for want of jurisdiction.

The respondent's return stated that Ognir, together with Private Elino Pagaling, was charged with violation of the 93rd Articles of War before a general court martial appointed by Colonel Wendell W. Fertig, Commanding Officer of the 10th Military District (Mindanao), pursuant to paragraph 9, Special Order 124, Headquarters, 108th Division, CPQ, Series of 1944, as amended. The return did not mention Lt. Col. Hodges.

After the Supreme Court's February 27, 1948 decision, the Judge Advocate General and Solicitor Antonio A. Torres filed a motion for reconsideration. They alleged that the General Court-Martial was convened not by Col. Fertig but by Lt. Col. Hodges of the 18th Decision, 10th Military District; that Col. Fertig was expressly authorized by Gen. MacArthur to convene such court; and that the decision of the General Court-Martial may be given the same effects as the actuation of civil courts during the Japanese occupation. They attached Exhibit I, purporting to be an affidavit dated March 8, 1948, of Captain F. S. Lagman, stating among others that a radiogram to GHQ, SWPA was transmitted requesting authorization sometime in 1943, and that after the request, it was his recollection that authority was granted to appoint Special and General Court-Martial.

The Court found no support for the allegation that either Col. Fertig or Lt. Col. Hodges was authorized by General MacArthur. Exhibit I was unsigned, the names of the affiant and the officer before whom it was sworn were typewritten, Lagman did not affirm personal receipt of the radiogram, and the best evidence would be the record or original transcription of the radiogram. Lagman referred to authority granted to Colonel Fertig, not to Lt. Col. Hodges, who allegedly convened the court-martial. Circular No. 34 of the Commonwealth of the Philippine Army Headquarters Apo 75 provided that General Courts-Martial appointed by District Commanders from 1942 to 1944 were not covered by the order, and that General Courts-Martial appointed by recognized guerrilla District Commanders prior to June 6, 1945 must show authority for the appointment.

The Court also rejected the contention that the proceedings could be given effect as the actuation of de facto officers or civil tribunals during the second Republic, because the courts established by the Military Government or the so-called second Republic were legally created by laws the military occupant had the right to promulgate, while the General Court-Martial was created or convened by an officer having no power or authority to do so.

• Lack of Authority to Convene: Petitioner claimed that his imprisonment was null and void because the General Court-Martial was not legally constituted; the District Commander who appointed or convened it had no authority to do so.
• Void Judgment for Want of Jurisdiction: Petitioner argued that because the court-martial was illegally constituted, its judgment was null and void for want of jurisdiction.
• Habeas Corpus as Remedy: Petitioner sought habeas corpus against the Director of Prisons to test the legality of his detention under the sentence of the General Court-Martial.

• Validity of Confinement: Respondent's return stated that petitioner was confined by virtue of a judgment of conviction rendered by a Court-Martial convened or appointed by Colonel Fertig pursuant to paragraph 9, Special Order 124, Headquarters, 108th Division, CPQ, Series of 1944, as amended.
• Convening Officer and Authorization: In the motion for reconsideration, the Judge Advocate General and Solicitor argued that the court-martial was convened not by Col. Fertig but by Lt. Col. Hodges, and that Col. Fertig was expressly authorized by Gen. MacArthur to convene such court.
• De Facto Effect: They argued that the decision of the General Court-Martial may be given the same effects as the actuation of civil courts during the Japanese occupation.

• Legality of General Court-Martial: Whether the General Court-Martial that sentenced petitioner to life imprisonment was legally appointed or convened.
• Authority to Convene: Whether Colonel Wendel W. Fertig or Lt. Col. Hodges had authority under Article 8 of Commonwealth Act No. 408, or express empowerment, to convene the General Court-Martial.
• Effect of Return and Evidence: Whether the return and the affidavit in Exhibit I sufficiently established that the convening officer was authorized.
• De Facto Effect: Whether the judgment of the General Court-Martial may be given effect as the actuation of de facto officers or civil courts during the Japanese occupation.
• Habeas Corpus: Whether habeas corpus lies to inquire into the legality of the court-martial's constitution and jurisdiction.

• Legality of General Court-Martial: No. The General Court-Martial was not legally constituted, because the officer who convened it was not shown to have authority under Article 8, Commonwealth Act No. 408; its judgment was null and void.
• Authority to Convene: No. Only the President and the Chief of Staff of the Philippine Army have inherent power to appoint general courts-martial; other officers, including district commanders, must be expressly empowered by the President. No such authority was shown for Fertig or Hodges.
• Effect of Return and Evidence: The return was prima facie evidence that Fertig convened the court-martial and did not mention Hodges; the allegation that Hodges convened it was unsupported, and Exhibit I did not establish authorization.
• De Facto Effect: No. No analogy existed between the General Court-Martial and the courts established by the Military Government or the so-called second Republic, which were legally created; this court-martial was convened by an officer without power.
• Habeas Corpus: Yes. A judgment rendered by a military court not legally constituted is void and subject to collateral attack, and habeas corpus may be availed of to inquire into the legality of the court's constitution and jurisdiction.

• Legality of General Court-Martial: The only question was whether the General Court-Martial was legally appointed or convened. A judgment rendered by a military court not legally constituted is treated not only as voidable but void and subject to collateral attack, citing McClaughry vs. Deming. Article 8, Commonwealth Act No. 408 lists who may appoint general courts-martial. The President and Chief of Staff have inherent power by virtue of position. Others, including the Provost Marshal, Commanding Officer of a Division, District Commander, Superintendent of the Military Academy, and Commanding Officer of a separate brigade or body of troops, may appoint only when empowered by the President. Colonel Fertig was Commanding Officer of the 10th Military District. Nothing in the record or return showed he was empowered by the President or by General MacArthur, assuming the military powers of the President as Commander in Chief were transferred to the Supreme Commander. Appointment as Commander of the 10th Military District did not carry the power to convene a General Court-Martial. Thus the court was not duly convened and had no jurisdiction.

• Authority to Convene: In the resolution, the return under Section 13, Rule 102 is prima facie evidence of the cause of restraint. The return stated Fertig appointed the court-martial pursuant to Special Order 124 and did not mention Lt. Col. Hodges. The motion's allegation that Hodges convened the court-martial was reckless. Assuming Hodges convened it, no record showed either Fertig or Hodges was authorized by General MacArthur. Exhibit I was not credible: it was unsigned, the names of the affiant and the officer before whom it was sworn were typewritten, Lagman did not affirm personal receipt of the radiogram, the best evidence was the record or original transcription of the radiogram, and it referred to authority for Fertig, not Hodges. Circular No. 34 stated that General Courts-Martial appointed by District Commanders from 1942 to 1944 were not covered by the order and that those appointed by recognized guerrilla District Commanders prior to June 6, 1945 must show authority for the appointment. Thus no authority was established.

• Effect of Return and Evidence: The return is prima facie evidence under Rule 102, Section 13. It stated that Fertig convened the court-martial. The contrary allegation in the motion was unsupported. Exhibit I did not deserve credit because it was unsigned, its signatories were typewritten, Lagman did not claim personal receipt of the radiogram, and the best evidence would be the record or original transcription. Lagman also referred to authority granted to Fertig, not to Hodges. Circular No. 34 belied the assumption that Hodges had authority. The evidence therefore did not sufficiently establish authorization.

• De Facto Effect: The contention that the proceedings could be given effect as the actuation of de facto officers or civil tribunals during the second Republic was untenable. There was no analogy between the decision of the courts established by the Military Government or the so-called second Republic and that of the General Court-Martial. The Commonwealth courts legally constituted were continued during the so-called Philippine Republic, and the other courts during the Japanese occupation were legally created by laws which, under International Law, the military occupant had the right to promulgate. The General Court-Martial, by contrast, was created or convened by an officer having no power or authority to do so.

• Habeas Corpus: The Court quoted Winthrop: while courts-martial, not being inferior courts to the Supreme Court under the Constitution, cannot be appealed to any civil court or controlled or directed by the decree or mandate of such a court, the writ of habeas corpus may be availed of by a prisoner claiming to be illegally detained under trial or sentence of court-martial, and the proceeding may inquire into the legality of the court's action—whether it was legally constituted, had jurisdiction, or its sentence was authorized by the code. Habeas corpus was therefore the proper remedy.

• Jurisdictional prerequisite for general courts-martial — Under Article 8, Commonwealth Act No. 408, only the President of the Philippines and the Chief of Staff of the Philippine Army have inherent power to appoint general courts-martial. Other officers, including a District Commander, may appoint only when expressly empowered by the President. Appointment as Commander of the 10th Military District did not carry with it the power to convene a General Court-Martial. Because no such authority was shown, the court-martial was illegally constituted and its judgment void for lack of jurisdiction.

• Void judgments of illegally constituted military courts and collateral attack — A judgment rendered by a military court which is not legally constituted is treated not only as voidable but void and subject to collateral attack. The Court relied on McClaughry vs. Deming in holding that the General Court-Martial's sentence of life imprisonment was null and void.

• Habeas corpus to test court-martial jurisdiction — Although courts-martial are not inferior courts to the Supreme Court under the Constitution and cannot be appealed to civil courts, habeas corpus may be availed of by a prisoner claiming illegal detention under the trial or sentence of a court-martial. The proceeding may inquire into whether the court-martial was legally constituted, had jurisdiction, or imposed a sentence authorized by the code.

• Prima facie effect of the return in habeas corpus — Under Section 13, Rule 102 of the Rules of Court, the return is prima facie evidence of the cause of restraint. The return stated that Colonel Fertig convened the court-martial and did not mention Lt. Col. Hodges. The contrary allegation in the motion for reconsideration was unsupported and did not overcome the return's prima facie effect.

• De facto officer doctrine not applicable to unauthorized court-martial — The de facto officer doctrine cannot validate the proceedings of a general court-martial convened by an officer with no power to do so. Unlike the courts established by the Military Government or the so-called second Republic, which were legally created by laws the military occupant had the right to promulgate, the General Court-Martial was created or convened by an officer having no power or authority.

• "For it is a well established rule that a judgment rendered by a military court which is not legally constituted is treated not only as voidable but void and subject to collateral attack, McClaughry vs. Deming, 186 U. S., 49; 46 Law. ed., 1049." — This states the ratio decidendi on the effect of an illegally constituted military court and grounds the availability of collateral attack through habeas corpus.

• "The appointment of Colonel Fertig as Commander of the 10th Military District of Mindanao does not carry with it the power to convene the General Court-Martial." — This is the core ruling on the absence of inherent authority in a district commander to convene a general court-martial under Article 8, Commonwealth Act No. 408.

• "there is nothing in the record to show or support the allegation that either Col. Fertig or Lt. Col. Hodges was ever authorized by General MacArthur to convene or appoint the General Court-Martial which convicted the petitioner." — This disposes of the motion for reconsideration's claim of express authorization and confirms the absence of evidence of authority.

• "The petitioner being illegally detained, respondent is ordered to release him immediately. So ordered." — This is the dispositive portion granting habeas corpus and ordering the petitioner's release.

• McClaughry vs. Deming, 186 U.S. 49; 46 Law. ed., 1049 — Cited for the rule that a judgment rendered by a military court which is not legally constituted is treated not only as voidable but void and subject to collateral attack.
• Winthrop's Military Law and Precedents, 2d ed., Vols. 1 and 2, p. 52 — Cited for the proposition that habeas corpus may be availed of by a prisoner claiming illegal detention under the trial or sentence of a court-martial, and that the legality of the court's action—whether it was legally constituted, had jurisdiction, or imposed a sentence authorized by the code—may be inquired into.

• Article 8, Commonwealth Act No. 408 — Lists the officers who may appoint general courts-martial. The President and the Chief of Staff of the Philippine Army have inherent power by virtue of their positions; other officers, including a District Commander, may appoint only when empowered by the President. Applied to hold that Colonel Fertig and Lt. Col. Hodges were not shown to have authority to convene the General Court-Martial.
• Section 13, Rule 102, Rules of Court — Provides that the return is prima facie evidence of the cause of restraint. Applied to treat the return's statement that Fertig convened the court-martial as prima facie evidence and to reject the contrary allegation that Hodges convened it.
• 93rd Article of War of the Philippine Army — The provision under which petitioner and Private Elino Pagaling were charged before the General Court-Martial. It supplied the offense for which petitioner was sentenced to life imprisonment.
• Circular No. 34, Commonwealth of the Philippine Army Headquarters Apo 75 — Provides that General Courts-Martial appointed by District Commanders from 1942 to 1944 are not covered by the order, and that General Courts-Martial appointed by recognized guerrilla District Commanders prior to June 6, 1945 must show authority for the appointment. Applied to reject the assumption that Lt. Col. Hodges had authority to convene the court-martial.

Chief Justice Moran and Justices Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason concurred in the main decision. Justice Perfecto concurred but wrote separately that he did not accept Winthrop's theory that courts-martial are not inferior courts to the Supreme Court under the Constitution; all other courts are inferior to the Supreme Court. In the May 12, 1948 Resolution, Justices Paras, Pablo, Bengzon, Padilla, and Tuason concurred. Justice Hilado concurred in the result but wrote a separate opinion, and Justice Perfecto joined that opinion.

• Justice Hilado — Concurred in the result but dissented from the declaration that the Commonwealth courts were continued during the so-called Philippine Republic. He maintained that the occupation courts were different from the Commonwealth courts: the former were de facto, while the latter were de jure; the former were courts of the occupation regime, the latter of the lawful government.
• Justice Perfecto — Joined in Justice Hilado's opinion.