Consti Cases Dec 9 17 To Digest

FORMAT OF DIGEST:
LEGAL SIZE
BOOKMAN OLD STYLE, 12
[No. 14639. March 25, 1919.]
ZACARIAS VILLAVICENCIO ET AL., petitioners, vs. JUSTO LUKBAN ET AL., respondents.
1.CONSTITUTIONAL LAW; RlGHT OF DOMICILE; LlBERTY; HABEAS CORpus; CONTEMPT.One hundred and
seventy women, who had lived in the segregated district for women of ill repute in the city of Manila,
were by orders of the Mayor of the city of Manila and the chief of police of that city isolated from society
and then at night, without their consent and without any opportunity to consult with friends or to defend
their rights, were forcibly hustled on board steamers for transportation to regions unknown. No law,
order, or regulation authorized the Mayor of the city of Manila or the chief of the police of that city to
force citizens of the Philippine Islands to change their domicile from Manila to another locality. Held: That
the writ of habeas corpus was properly granted, and that the Mayor of the city of Manila who was
primarily responsible for the deportation, is in contempt of court for his failure to comply with the order
of the court.
2.ID.; ID.; ID.; ID.The remedies of the unhappy victims of official oppression are three: (1) Civil action;
(2) criminal action, and (3) habeas corpus. A civil action was never intended effectively and promptly to
meet a situation in which there is restraint of liberty. That the act may be a crime and that the person may
be proceeded against is also no bar to the institution of habeas corpus proceedings. Habeas corpus is the
proper remedy.
3.ID.; ID.; ID.; ID.These women, despite their being in a sense lepers of society, are nevertheless not
chattles, but Philippine citizens protected by the same constitutional guaranties as are other citizens.
4.ID.; ID.The privilege of domicile is a principle often protected by constitutions and deeply imbedded
in American jurisprudence.
5.HABEAS CORPUS; NATURE.The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal
freedom.
6.ID. ; PARTIES.Where it is impossible for a party to sign an application for the writ of habeas corpus, it
is proper for the writ to be submitted by some person in his behalf.
7.ID.; JURISDICTION.It is a general rule of good practice that, to avoid unnecessary expense and
inconvenience, petitions for habeas corpus should be presented to the nearest judge of the Court of First
Instance.
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Villavicencio vs. Lukban.
8.ID. ; ID.The writ of habeas corpus may be granted by the Supreme Court or any judge thereof
enforcible anywhere in the Philippine Islands.
9.ID.; ID.Whether the writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the particular circumstances.
10.ID.; RESTRAINT OF LIBERTY.A prime specification of an application for a writ of habeas corpus is
restraint of liberty. The essential objects and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such
restraint is illegal. Any restraint which will preclude freedom of action is sufficient.
11.ID.; ID.The forcible taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these women of freedom of
locomotion just as effectively as if they had been imprisoned. The restraint of liberty which began in
Manila continued until the aggrieved parties were returned to Manila and released or until they freely
and truly waived this right.
12.ID.; ID.The true principle should be that if the respondent is within the jurisdiction of the court and
has it in his power to obey the order of the court, and thus to undo the wrong that he has inflicted, he
should be compelled to do so.
13.ID.; ID.Even if the party to whom the writ is addressed has illegally parted with the custody of a
person before the application for the writ, is no reason why the writ should not issue.
14.ID. ; ID.The place of confinement is not important to the relief if the guilty party is within the reach
of process so that by the power of the court he can be compelled to release his grasp.
15.ID.; COMPLIANCE WITH WRIT.For respondents to fulfill the order of the court granting the writ of
habeas corpus, three courses were open: (1) They could have produced the bodies of the persons
according to the command of the writ; (2) they could have shown by affidavit that on account of sickness
or infirmity these ,persons could not safely be brought before the Court; or (3) they could have. presented
affidavits to show that the parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.)
16.CONTEMPT OF COURT.The power to punish for contempt of court should be exercised on the
preservative and not on the vindictive principle. . Only occasionally should a court invoke its inherent
power in order to retain that respect without which the administration of justice must falter or fail.
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PHILIPPINE REPORTS ANNOTATED

17.ID.When one is commanded to produce a certain person and does not do so, and does not offer a
valid excuse, a court must, to vindicate its authority, adjudge the respondent to be guilty of contempt,
and must order him either imprisoned or fined.
18.ID.An officer's failure to produce the body of a person in obedience to a writ -of habeas corpus, when
he has power to do so, is contempt committed in the face of the court.
19.GOVERNMENT OF THE PHILIPPINE ISLANDS; A GOVERNMENT OF LAWS.The Government of the

Philippine Islands is a. government of laws. The court will assist in retaining it as a government of laws and
not of men.
20.ID, ; ID.No official, however high, is above the law.
21.ID.; ID.The courts are the forum which functionate to safeguard individual liberty and to punish
official transgressors.
ORIGINAL ACTION in the Supreme Court. Habeas Corpus.
The facts are stated in the opinion of the court.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the one which this application
for habeas corpus submits for decision. While hardly to be expected to be met with in this modern epoch
of triumphant democracy, yet, after all, the cause presents no great difficulty if there is kept in the
forefront of our minds the basic principles of popular government,. and if we give expression to the
paramount purpose for which the courts, as an independent power of such a government, were
constituted. The primary question isShall the judiciary permit a government of men instead of a
government of laws to be set up in the Philippine Islands ?
Omitting much extraneous matter, of no moment to these proceedings, but which might prove profitable
reading for other departments of the government, the facts are these: The Mayor of the city of Manila,
Justo Lukban, for the best of all reasons, to exterminate vice, ordered the segregated district for women
of ill repute, which had been
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permitted for a number of years in the city of Manila, closed. Between October 16 and October 25, 1918,
the women were kept confined to their houses in the district by the police. Presumably, during this period,
the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to
Davao, Mindanao, as laborers; with some government office for the use of the coastguard cutters
Corregidor and Negros, and with the Constabulary for a guard of soldiers,. At any rate, about midnight of
October 25, the police, acting pursuant to orders from the. chief of police, Anton Hohmann and the Mayor
of the city of Manila, Justo Lukban, descended upon the houses, hustled some 170 inmates into patrol
wagons, and placed them aboard the steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under the impression that they were being
taken to a police station for an investigation. They had no knowledge that they were destined for a lif e in
Mindanao. They had not been asked if they wished to depart from that region and had neither directly
nor indirectly given their consent to the deportation. The involuntary guests were received on board the
steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of October 25.
The vessels reached their destination at Davao on October 29. The women were landed and receipted for
as laborers by Francisco Sales, provincial governor of Davao, and by Feliciano Yigo and Rafael Castillo.
The governor and the hacendero Yigo, who appear as parties in the case, had no previous notification
that the women were prostitutes who had been expelled from the city of Manila. The further happenings
to these women and the serious charges growing out of alleged ill-treatment are of public interest, but
are not essential to the disposition of this case. Suffice it to say, generally, that some of the women
married, others assumed more or less clandestine relations with men, others went to
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work in different capacities, others assumed a life unknown and disappeared, and a goodly portion found
means to return to Manila.
To turn back in our narrative, just about the time the Corregidor and the Negros were putting in to Davao,
the attorney for the relatives and friends of a considerable number of the deportees presented an
application f or habeas corpus to a member of the Supreme Court. Subsequently, the application, through
stipulation of the parties, was made to include all of the women who were sent away from Manila to
Davao and, as the same questions concerned them all, the application will be considered as including
them. The application set forth the salient facts, which need not be repeated, and alleged that the women
were illegally restrained of their liberty by Justo Lukban, Mayor of the city of Manila, Anton Hohmann,
chief of police of the city of Manila, and by certain unknown parties. The writ was made returnable before
the full court. The city fiscal appeared f or the respondents, Lukban and Hohmann, admitted certain facts
relative to sequestration and deportation, and prayed that the writ should not be granted because the
petitioners were not proper parties, because the action should have been begun in the Court of First
Instance for Davao, Department of Mindanao and Sulu, because the respondents did not have any of the
women under their custody or control, and because their jurisdiction did not extend beyond the
boundaries of the city of. Manila. According to an exhibit attached to the answer of the fiscal, the 170
women were destined to be laborers, at good salaries, on the haciendas of Yigo and Governor Sales. In
open court, the fiscal admitted, in answer to a question of a member of the court, that these women had
been sent out of Manila without their consent. The court awarded the writ, in an order of November 4,
that directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the city of
Manila, Francisco Sales, governor of the province of Davao, and Feliciano Yigo, an hacendero of Davao,
to bring bef ore
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the court the persons therein named, alleged to be deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at their own expense. On motion
of counsel for petitioners, their testimony was taken before the clerk of the Supreme Court sitting as
commissioner. On the day named in the order, December 2d, 1918, none of the persons in whose behalf
the writ was issued were produced in court by the respondents. It has since been shown that three of
those who had been able to come back to Manila through their own efforts, were notified by the police
and the secret service to appear before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to the original petition. copied a
telegram f rom the Mayor of the city of Manila to the provincial governor of Davao and the answer
thereto, and telegrams that had passed between the Director of Labor and the attorney for that Bureau
then in Davao, and offered certain affidavits showing that the women were contented with their life in
Mindanao and did not wish to return to Manila. Respondent Sales answered alleging that it was not
possible to fulfill the order of the Supreme Court because the women had never been under his control,
because they were at liberty in the Province of Davao, and because they had married or signed contracts
as laborers. Respondent Yigo answered alleging that he did not have any of the women under his control
and that therefore it was impossible for him to obey the mandate. The court, after due deliberation, on
December 10, 1918, promulgated a second order, which related that the respondents had not complied
with the original order to the satisfaction of the court nor explained their failure to do so, and therefore
directed that those of the women not in Manila be brought before the court by respondents Lukban,
Hohmann, Sales, and Yigo on January 13, 1919, unless the women should, in written statements
voluntarily made before the judge of first instance of Davao or the clerk of that court, renounce the right,
or unless
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the respondents should demonstrate some other legal motives that made compliance impossible. It was
further stated that the question of whether the respondents were in contempt of court would later be
decided and the reasons for the order announced in the final decision.
Before January 13, 1919, f urther testimony including that of a number of the women, of certain detectives
and policemen, and of the provincial governor of Davao, was taken before the clerk of the Supreme Court
sitting as commissioner and the clerk of the Court of First Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents technically presented before the Court the women who had
returned to the city through their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again recounted the facts and further
endeavored to account for all of the persons involved in the habeas corpus. In subStance, it was stated
that the respondents, through their representatives and agents, had succeeded in bringing from Davao
with their consent eight women; that eighty-one women were found in Davao who, on notice that if they
desired they could return to Manila, transportation free, renounced the right through sworn statements;
that fiftynine had already returned to Manila by other means, and that despite all efforts to find them
twenty-six could not be located. Both counsel for petitioners and the city fiscal were permitted to submit
memoranda. The first formally asked the court to find Justo Lukban, Mayor of the city of Manila, Anton
Hohmann, chief of police of the city of Manila, Jose Rodriguez and Fernando Ordax, members of the police
f orce of the city of Manila, Feliciano Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for
the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court. The city fiscal
requested that the rplica, al memorandum de los recurridos, (reply to respondents' memorandum) dated
January 25, 1919, be struck from the record.
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In the second order, the court promised to give the reasons for granting the writ of habeas corpus in the
final decision. We will now proceed to do so.
One f act, and one fact only, need be recalledthese one hundred and seventy women were isolated
from society, and then at night, without their consent and without any opportunity to consult with friends
or to defend their rights, were forcibly hustled on board steamers for transportation to regions unknown.
Despite the feeble attempt to prove that the women left voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of the police and the constabulary was deemed necessary
and that these officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed,
this is a fact impossible to refute and practically admitted by the respondents.
With this situation, a court would next expect to resolve the questionBy authority of what law did the
Mayor and the Chief of Police presume to act in deporting by duress these persons from Manila to another
distant locality within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity with an Act of Congress. The
Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. Act No.
519 of the Philippine Commission and section 733 of the Revised Ordinances of the city of Manila provide
for the conviction and punishment by a court of justice of any person who is a common prostitute. Act
No, 899 authorizes the return of any citizen of the United States, who may have been convicted of
vagrancy, to the homeland. New York and other States have statutes providing for the commitment to
the House of Refuge of women convicted of being common prostitutes. Always a law! Even when the
health authorities compel vaccination, or establish a quarantine, or place a leprous person in the Culion
leper colony, it is done pur-
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suant to some law or order. But one can search in vain for any law, order, or regulation, which even hints
at the right of the Mayor of the city of Manila or the chief of police of that city to force citizens of the
Philippine Islandsand these women despite their being in a sense lepers of society are nevertheless not
chattels but Philippine citizens protected by the same constitutional guaranties as are other citizensto
change their domicile from Manila to another locality. On the contrary, Philippine penal law specifically
punishes any public officer who, not being expressly authorized by law or regulation, compels any person
to change his residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed so important as to be found
in the Bill of Rights of the Constitution. Under the American constitutional system, liberty of abode is a
principle so deeply imbedded in jurisprudence and considered so elementary in nature as not even to
require a constitutional sanction. Even the Governor-General of the Philippine Islands, even the President
of the United States, who has often been said to exercise more power than any king or potentate, has no
such arbitrary prerogative, either inherent or express. Much less, therefore, has the executive of a
municipality, who acts within a sphere of delegated powers. If the mayor and the chief of police could, at
their mere behest or even for the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other municipalities of the Philippines
have the same privilege. If these officials can take to themselves such power, then any other official can
do the same. And if any official can exercise the power, then all persons would have just as much right to
do so. And if a prostitute could be sent against her wishes and under no law f rom one locality to another
within the country, then officialdom can hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that"No freeman shall be taken, or
imprisoned, or be
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disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise
destroyed; nor will we pass upon him nor condemn him, but by lawful judgment of his peers or by the law
of the land. We will sell to no man, we will not deny or def er to any man either justice or right." (Magna
Charta, 9 Hen., 111, 1225, Cap. 29; 1 Eng. Stat. at Large, 7.) No official, no matter how high, is above the
law. The courts are the forum which functionate to safeguard individual liberty and to punish official
transgressors. "The law," said Justice Miller, delivering the opinion of the Supreme Court of the United
States, "is the only supreme power in our system of government, and every man who by accepting office
participates in its functions is only the more strongly bound to submit to that supremacy, and to observe
the limitations which it imposes upon the exercise of the authority which it gives." (U. S. vs. Lee [1882],
106 U. S., 196, 220.) "The very idea," said Justice Matthews of the same high tribunal in another case,
"that one man may be compelled to hold his life, or the means of living, or any material right essential to
the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U. S., 356, 370.) All this
explains the motive in issuing the writ of habeas corpus, and makes clear why we said in the very beginning
that the primary question was whether the courts should permit a government of men or a government
of laws to be established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are
three: (1) Civil action; (2) criminal action, and (3) habeas corpus.
The first is an optional but rather slow process by which the aggrieved party may recoup money damages.
It may still rest with the parties in interest to pursue such an action, but it was never intended effectively
and promptly to meet any such situation as that now before us.
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As to criminal responsibility, it is true that the Penal Code in force in these Islands provides:
"Any public officer not thereunto authorized by law or by regulations of a general character in force in the
Philippines who shall banish any person to a place more than two hundred kilometers distant from his
domicile, except it be by virtue of the judgment of a court, shall be punished by a fine of not less than
three hundred and twenty-five and not more than three thousand two hundred and fifty pesetas.
"Any public officer not thereunto expressly authorized by law or by regulation of a general character in
force in the Philippines who shall compel any person to change his domicile or residence shall suffer the
penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand
two hundred and fifty pesetas" (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper prosecuting officers find that any
public officer has violated this provision of law, these prosecutors will institute and press a criminal
prosecution just as vigorously as they have defended the same official in this action. Nevertheless, that
the act may be a crime and that the persons guilty thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of Judge Cooley in a case which will later be referred to"It
would be a monstrous anomaly in the law if to an application by one unlawfully confined, to be restored
to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be
continued indefinitely until the guilty party was tried and punished therefor by the slow process of
criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was
devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the
best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched
by
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decision on the writ, whose principal purpose is to set the individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its
issuance in this instance. The fiscal has argued (1) that there is a defect in parties petitioners, (2) that the
Supreme Court should not assume jurisdiction, and (3) that the persons in question are not restrained of
their liberty by respondents, It was finally suggested that the jurisdiction of the Mayor and the chief of
police of the city of Manila only extends to the city limits and that perf orce they could not bring the
women from Davao.
The first defense was not pressed with any vigor by counsel. The petitioners were relatives and friends of
the deportees. The way the expulsion was conducted by the city officials made it impossible for the
women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by
persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law,
in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of
habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or
restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.)
Petitioners had standing in court.
The fiscal next contended that the writ should have been asked f or in the Court of First Instance of Davao
or should have been made returnable before that court. It is a general rule of good practice that, to avoid
unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest
judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code
of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made
returnable
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before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is
dependent on the particular circumstances. In this instance it was not shown that the Court of First
Instance of Davao was in session, or that the women had any means by which to advance their plea bef
ore that court. On the other hand, it was shown that the petitioners with their attorneys, and the two
original respondents with their attorney, were in Manila; it was shown that the case involved parties
situated in different parts of the Islands; it was shown that the women might still be imprisoned or
restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken
cognizance of and decided immediately by the appellate court. The failure of the superior court to
consider the application and then to grant the writ would have amounted to a denial of the benefits of
the writ.
The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed
for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is
claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such
dictum is f ound to be perversive of the first principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential
object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as
distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint
which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by
officials of that city, who handed them over to other parties, who deposited them in a distant region,
deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed
in Davao without either money or personal belongings, they were prevented from exercising the liberty
of going when
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and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved
parties were returned to Manila and released or until they freely and truly waived this right.
Consider for a moment what an agreement with such a defense would mean. The chief executive of any
municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the
boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold
his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction
over this other municipality. We believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong
that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed
has illegally parted with the custody of a person before the application for the writ is no reason why the
writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport
these women from the city of Manila to Davao, these same officials must necessarily have the same means
to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted
to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with
impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse.
The great writ of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the courts for decision.
Nevertheless, strange as it may seem, a close examination of the authorities f ails to reveal any analogous
case. Certain decisions of respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an early date as to whether or not
a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the
State to bring into the
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State a minor child under guardianship in the State, who has been and continues to be detained in another
State. The membership of the Michigan Supreme Court at this time was notable. It was composed of
Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court
was equally divided. Campbell, J,, with whom concurred Martin, C. J., held that the writ should be
quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom
concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was
predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear,
the English courts have taken a contrary view, only the f ollowing eloquent passages from the opinion of
Justice Cooley are quoted:
"I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on .the
petition which was laid before us. * * *
"It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been
expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many
confirmations, until Coke could declare in his speech on the petition of right that 'Magna Charta was such
a fellow that he will have no sovereign,' and after the extension of its benefits and securities by the
petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that
great clause for the protection of personal liberty, which is; the life and soul of the whole instrument, is
so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature
may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice.
***
"The second propositionthat the statutory provisions are confined to the case of imprisonment within
the stateseems to me to be based upon a misconception as to the source of our jurisdiction. It was
never the case in England that the court of king's bench derived its jurisdiction to
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issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the
observance of rights which existed. * * *
"The important f act to be observed in regard to the mode of procedure upon this writ is, that it is directed
to and served upon, not the person confined, but his jailor. It does not reach the former except through
the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free,
but the court relieves him by compelling the oppressor to release his constraint The whole force of the
writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes
of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other
means are resorted to, they are only auxiliary to those which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty party is within reach of process, so that by the power
of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased
by the confinement being beyond the limits of the state, except as greater distance may affect it. The
important question is, where is the power of control exercised? And I am aware of no other remedy." (In
the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell
[1881], 57 Iowa, 193; Breene vs, People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed.,
526.)
The English courts have given careful consideration to the subject. Thus, a child had been taken out of
England by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the
application of the mother and her husband directing the defendant to produce the child. The judge at
chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated
that the child before the issuance of the writ had been handed over by him to another; that it was no
longer in his custody or control, and that it was impossible
794
794
for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher,
M. R., said:
"A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the
defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice
immediately after the receipt of the writ, together with the cause of her being taken and detained. That
is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be
shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully
parted with the possession of the child before the issuing of the writ, the defendant had no longer power
to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to
produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without
lawful excuse. Many efforts have been made in argument to shift the question of contempt to some
anterior period f or the purpose of showing that what was done at some time prior to the writ cannot be
'a contempt. But the question is not as to what was done bef ore the issue of the writ. The question is
whether there has been a contempt in disobeying the writ after it was issued by not producing the child
in obedience to its commands." (The Queen vs. Barnardo [1889], 23 Q. B. D., 305. See also to the same
effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's
Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus was directed to 'the
defendant to have before the circuit court of the District of Columbia three colored persons, with the
cause of their detention. Davis, in his return to the writ, stated on oath that he had purchased the negroes
as slaves in the city of Washington; that, as he believed, they were removed beyond the District of
Columbia before the service of the writ of habeas corpus,
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VOL. 39, MARCH 25, 1919.
795
and that they were then beyond his control and out of his custody. The evidence tended to show that
Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. The
court held the return to be evasive and insufficient, and that Davis was bound to produce the negroes,
and Davis being present in court, and refusing to produce them, ordered that he be committed to the
custody of the marshall until he should produce the negroes, or be otherwise discharged in due course of
law. The court afterwards ordered that Davis be released upon the production of two of the negroes, for
one of the negroes had run away and been lodged in jail in Maryland. Davis produced the two negroes on
the last day of the term. (United States vs. Davis [1839], 5 Cranch C. C., 622, Fed. Cas. No. 14926. See also
Robb vs. Connolly [1883], 111 U. S., 624; Church on Habeas Corpus, 2nd ed., p. 170.)
We find, therefore, both on reason and authority, that no one of the defenses offered by the respondents
constituted a legitimate bar to the granting of the writ of habeas corpus.
There remains to be considered whether the respondents complied with the two orders of the Supreme
Court awarding the writ of habeas corpus, 'and if it be found that they did not, whether the contempt
should be punished or be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yigo to present the persons named in the writ bef ore the court on December 2,1918. The order was
dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the Mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial governor of Davao. According to the response of
the attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to do so because of having contracted debts.
The half-hearted effort natur-
796
796
ally resulted in none of the parties in question being brought bef ore the court on the day named.
For the respondents to have fulfilled the court's order, three optional courses were open: (1) They could
have produced the bodies of the persons according to the command of the writ; or (2) they could have
shown by affidavit that on account of sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to show ,that the parties in question or their
attorney waived the right to be present. (Code of Criminal Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be present by those interested.
Instead a few stereotyped affidavits purporting to show that the women were contented with their life in
Davao, some of which have since been repudiated by the signers, were appended to the return. That
through ordinary diligence a considerable number of the women, at least sixty, could have been brought
back to Manila is demonstrated by the fact that during this time they were easily to be found in the
municipality of Davao, and that about this number either returned at their own expense or were produced
at the second hearing by the respondents.
The court, at the time the return to its first order was made, would have been warranted summarily in
finding the respondents guilty of contempt of court, and in sending them to jail until they obeyed the
order. Their excuses for the non-production of the persons were far from sufficient. The authorities cited
herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ
must be fulfilled. For example, in Gossage's case, supra, the Magistrate in referring to an earlier decision
of the Court, said: "We thought that, having brought about that state of things by his own illegal act, he
must take the consequences; and we said that he was bound to use every effort to get the child back; that
he must do much more than
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797
write letters for the purpose; that he must advertise in America, and even if necessary himself go after
the child, and do everything that mortal man could do in the matter; and that the court would only accept
clear proof of an absolute impossibility by way of excuse." In other words, the return did not show that
every possible effort to produce the women was made by the respondents. That the court forebore at
this time to take drastic action was because it did not wish to see presented to the public gaze the
spectacle of a clash between executive officials and the judiciary, and because it desired to give the
respondents another chance to demonstrate their good faith and to mitigate their wrong.
In response to the second order of the court, the respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in such a bitterly contested
case are to be expected, and while a critical reading of the record might reveal a failure of literal fulfillment
with our mandate, we come to conclude that there is a substantial compliance with it. Our finding to this
effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. If
any wrong is now being perpetrated in Davao, it should receive an executive investigation. If any particular
individual is still restrained of her liberty, it can be made the object of separate habeas corpus
proceedings.
Since the writ has already been granted, and since we find a substantial compliance with it, nothing further
in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez, and Fernando Ordax,
members of the police force of the city. of Manila, Modesto Joaquin, the attorney for the Bureau of Labor,
Feliciano Yigo, an
798
798
hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court should be exercised on the preservative and not on the
vindictive principle. Only occasionally should the court invoke its inherent power in order to retain that
respect without which the administration of justice must falter or fail. Nevertheless when one is
commanded to produce a certain person and does not do so, and does not offer a valid excuse, a court
must, to vindicate its authority, adjudge the respondent to be guilty of contempt, and must order him
either imprisoned or fined. An officer's failure to produce the body of a person in obedience to a writ of
habeas corpus when he has power to do so, is a contempt committed in the face of the court. (Ex parte
Sterns [1888], 77 Cal., 156; In re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind, and with judicial regard for human imperfections, we cannot
say that any of the respondents, with the possible exception of the first named, has flatly disobeyed the
court by acting in opposition to its authority, Respondents Hohmann, Rodriguez, Ordax, and Joaquin only
followed the orders of their chiefs, and while, under the law of public officers, this does not exonerate
them entirely, it is nevertheless a powerful mitigating circumstance. The hacendero Yigo appears to have
been drawn into the case through a misconstruction by counsel of telegraphic communications. The city
fiscal, Anacleto Diaz, would seem to have done no more than to fulfill his duty as the legal representative
of the city government. Finding him innocent of any disrespect to the court, his counter-motion to strike
from the record the memorandum of attorney for the petitioners, which brings him into this undesirable
position, must be granted. When all is said and done, as far as this record discloses, the official who was
primarily responsible for the unlawful deportation, who ordered the police to accomplish the same, who
made arrangements for the steamers and the constabulary, who conducted the negotiations with the
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VOL. 39, MARCH 25, 1919.
799
Bureau of Labor, and who later, as the head of the city government, had it within his power to facilitate
the return of the unfortunate women to Manila, was Justo Lukban, the Mayor of the city of Manila. His
intention to suppress the social evil was commendable. His methods were unlawful. His regard for the
writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged. It would be
possible to turn to the provisions of section 546 of the Code of Civil Procedure, which relates to the penalty
for disobeying the writ, and in pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of pesos, and in addition to deal
with him as for a contempt. Some members of the court are inclined to this stern view. It would also be
possible to find that since respondent Lukban did comply substantially with the second order of the court,
he has purged his contempt of the first order. Some members of the court are inclined to this merciful
view. Between the two extremes appears to lie the correct finding. The failure of respondent Lukban to
obey the first mandate of the court tended to belittle and embarrass the administration of justice to such
an extent that his later activity may be considered only as extenuating his conduct. A nominal fine will at
once command such respect without being unduly oppressivesuch an amount is P100.
In rsumas before stated, no further action on the writ of habeas corpus is necessary. The respondents
Hohmann, Rodriguez, Ordax, Joaquin, Yigo, and Diaz are found not to be in contempt of court.
Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme
Court within five days the sum of one hundred pesos (P100). The motion of the fiscal of the city of Manila
to strike from the record the Rplica al Memorandum de los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents! So ordered.
In concluding this tedious and disagreeable task, may
800
800
we not be permitted to express the hope that this decision may serve to bulwark the f ortifications of an
orderly government of laws and to protect. individual liberty from illegal encroachment.
Arellano, C. J., Avancea, and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas
corpus proceeding against Just Lukban, the mayor of this city.
There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great
number of women of various ages, inmates of the houses of prostitution situated in Gardenia Street,
district of Sampaloc, to change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the opening of public houses of
prostitution, as those in the said Gardenia Street, Sampaloc. For this reason, when more than one hundred
and fifty women were assembled and placed aboard a steamer and transported to Davao, considering
that the existence of the said houses of prostitution has been tolerated for so long a time, it is undeniable
that the mayor of the city, in proceeding in the manner shown, acted without authority of any legal
provision which constitutes an exception to the laws guaranteeing the liberty and the individual rights of
the residents of the city of Manila.
We do not believe in the pomp and ostentation of force displayed by the police in complying with the
order of the mayor of the city; neither do we believe in the necessity of taking them to the distant district
of Davao. The said governmental authority, in carrying out his intention to suppress the segregated district
or the community formed by those women in Gardenia Street, could have obliged the said women to
return to their former residences in this city or in the provinces, without the necessity of transporting
them to Mindanao; hence the said official is obliged to bring back the women who are still in Davao so
that
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VOL. 39, MARCH 25, 1919.
801
they may return to the places in which they lived prior to their becoming inmates of certain houses in
Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this court, we do not find any
apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his
subordinates, if we take into account the difficulties encountered in bringing the said women who were
free at Davao and presenting them before this court within the time fixed, inasmuch as it does not appear
that the said women were living together in a given place. It was not because they were really detained,
but because on the first days there were no houses in which they could live with a relative independent
from one another, and as a proof that they were free a number of them returned to Manila and the others
succeeded in living separate from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal object and whether he has
acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them
to change their domicile, it is necessary to consider not only the rights and interests of the said women
and especially of the patrons who have been directing and conducting such a reproachable enterprise and
shameful business in one of the suburbs of this city, but also the rights and interests of the very numerous
people of Manila where relatively a few transients accidentally and for some days reside, the inhabitants
thereof being more than three hundred thousand (300,000) who can not, with indifference and without
repugnance, live in the same place with so many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands of social morality are to be
taken into account, it is not possible to sustain that it is legal and permissible to establish a house of
pandering or prostitution in the midst of an enlightened population, for, although there were no positive
laws prohibiting the existence of such
802
802
houses within a district of Manila, the dictates of common sense and dictates of conscience of its
inhabitants are sufficient to warrant the public administration, acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the public,
and of obliging the inmates thereof to leave it, although such a house is inhabited by its true owner who
invokes in his behalf the protection of the constitutional law guaranteeing his liberty, ,his individual rights,
and his right to property.
A cholera patient, a leper, or any other person affected by a known contagious disease cannot invoke in
his favor the constitutional law which guarantees his liberty and individual rights, should the
administrative authority order his hospitalization, reclusion, or concentration in a certain island or distant
point in order to free from contagion the great majority of the inhabitants of the country who fortunately
do not have such diseases. The same reasons exist or stand good with respect to the unfortunate women
dedicated to prostitution, and such reasons become stronger because the first persons named have
contracted their diseases without their knowledge and even against their will, whereas the unfortunate
prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences,
knowing positively that their constant intercourse with men of all classes, notwithstanding the cleanliness
and precaution which they are wont to adopt, gives way to the spread or multiplication of the disease
known as syphilis, a venereal disease, which, although it constitutes a secret disease among men and
women, is still prejudicial to the human species in the same degree, scope, and seriousness as cholera,
tuberculosis, leprosy, pest, typhoid, and other contagious diseases which produce great mortality and
very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to her sex, which can give her
sufficient remuneration for her subsistence, prefers to put herself
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VOL. 39, MARCH 25, 1919.
803
under the will of another woman who is usually older than she is and who is the manager or owner of a
house of prostitution, or spontaneously dedicates herself to this shameful profession, it is undeniable that
she voluntarily and with her own knowledge renounces her liberty and individual rights guaranteed by
the Constitution, because it is evident that she can not join the society of decent women nor can she
expect to get the same respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every citizen. Considering her
dishonorable conduct and life, she should therefore be comprised within that class which is always subject
to the police and sanitary regulations conducive to the maintenance of public decency and morality and
to the conservation of public health, and for this reason it should not be permitted that the unfortunate
women dedicated to prostitution evade the just orders and resolutions adopted by the administrative
authorities.
It is regrettable that unnecessary rigor was employed against the said poor women, but those who have
been worrying so much about the prejudice resulting from a governmental measure, which being a very
drastic remedy may be considered arbitrary, have failed to consider with due reflection the interests of
the inhabitants of this city in general and particularly the duties and responsibilities weighing upon the
authorities which administer and govern it; they have forgotten that many of those who criticize and
censure the mayor are fathers of families and are in duty bound to take care of their children.
For the foregoing reasons, we reach the conclusion that when the petitioners, because of the abnormal
life they assumed, were obliged to change their residence not by a private citizen but by the mayor of the
city who is directly responsible for the conservation of public health and social morality, the latter could
take the step he had taken, availing himself of the services of the police in good faith and only with the
purpose of protecting the immense majority of the
804
804
population from the social evils and diseases which the houses of prostitution situated in Gardenia Street
have been producing, which houses have been constituting for years a true center for the propagation of
veneral diseases and other evils derived therefrom. Hence, in ordering the dissolution and abandonment
of the said houses of prostitution and the change of the domicile of the inmates thereof, the mayor did
not in bad faith violate the constitutional law which guarantees the liberty and the individual rights of
every Filipino, inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights, the
exercise of which they have voluntarily renounced in exchange for the free practice of their shameful
profession.
In very highly advanced and civilized countries, there have been adopted by the administrative authorities
similar measures, more or less rigorous, respecting prostitutes, considering them prejudicial to the
people, although it is true that in the execution of such measures more humane :and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such procedures have always had
in view the ultimate object of the Government for the sake of the community, that is, putting an end to
the living together in a certain place of women dedicated to prostitution and changing their domicile, with
the problematical hope that they adopt another manner of living which is better and more useful to
themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that Mayor Justo Lukban is obliged
to take back and restore the said women who are at present found in Davao, and who desire to return to
their former respective residences, not in Gardenia Street, Sampaloc District, with the exception of the
prostitutes who should expressly make known to the clerk of court their preference to reside in Davao,
which manifestation must be made under oath. This resolution must be transmitted to the mayor within
the shortest time possible f or its due compliance. The costs shall be charged de officio.
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VOL. 39, MARCH 25, 1919.
805
ARAULLO, J., dissenting in part:
1 regret to dissent from the respectable opinion of the majority in the decision rendered in these
proceedings, with respect to the finding as to the importance of the contempt committed, according to
the same decision, by Justo Lukban, Mayor of the city of Manila, and the consequent imposition upon him
of a nominal fine of ?100.
In the said decision, it is said:
"The first order, it will be recalled, directed Justo Lukban, Anton Hohmann, Francisco Sales, and Feliciano
Yigo to present the persons named in the writ before the court on December 2,1918. The order was
dated November 4, 1918. The respondents were thus given ample time, practically one month, to comply
with the writ. As far as the record discloses, the mayor of the city of Manila waited until the 21st of
November before sending a telegram to the provincial governor of Davao. According to the response of
the Attorney for the Bureau of Labor to the telegram of his chief, there were then in Davao women who
desired to return to Manila, but who should not be permitted to do so because of having contracted debts.
The half-hearted effort naturally resulted in none of the parties in question being brought before the court
on the day named."
In accordance with section 87 of General Orders No. 58, as is said in the same decision, the respondents,
for the purpose of complying with the order of the court, could have, (1) produced the bodies of the
persons according to the command of the writ; (2) shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought before this court; and (3) presented affidavits to
show that the parties in question or their lawyers waived their right to be present. According to the same
decision, the said respondents "* * * did not produce the bodies of the persons in whose behalf the writ
was granted; did not show impossibility of performance; and did not present writings that waived the
right to be present by those interested. Instead, a few stereotyped
806
806

affidavits purporting to show that the women were contented with their life in Davao, some of which have
since been repudiated by the signers, were appended to the return. That through ordinary diligence a
considerable number of the women, at least sixty, could have been brought back to Manila is
demonstrated by the fact that during this time they were easily to be found in ,the municipality of Davao,
and that about this number either returned at their own expense or were produced at the second hearing
by the respondents."
The majority opinion also recognized that, "The court, at the time the return to its first order was made,
would have been warranted summarily in finding the respondent guilty of contempt of court, and in
sending them to jail until they obeyed the order. Their excuses for the non production of the persons were
far from sufficient." To corroborate this, the majority decision cites the case of the Queen vs. Barnardo,
Gossage's Case ([1890], 24 Q. B. D., 283) and added "that the return did not show that every possible
effort to produce the women was made by the respondents."
When the said return by the respondents was made to this court in banc and the case discussed, my
opinion was that Mayor Lukban should have been immediately punished for contempt. Nevertheless, a
second order referred to in the decision was issued on December 10, 1918, requiring the respondents to
produce before the court, on January 13, 1919, the women who were not in Manila, unless they could
show that it was impossible to comply with the said order on the two grounds previously mentioned. With
respect to this second order, the same decision has the following to say:
"In response to the second order of the court, the respondents appear to have become more zealous and
to have shown a better spirit. Agents were dispatched to Mindanao, placards were posted, the
constabulary and the municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in such a bitterly con-
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VOL. 39, MARCH 25, 1919.
807
tested case are to be expected, and while a critical reading of the record might reveal a failure of literal
fulfilment with our mandate, we come to conclude that there is a substantial compliance with it."
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse from the date of the issuance
of the first order on November 4th till the 21st of the same month bef ore taking the first step f or
compliance with the mandate of the said order; he waited till the 21st of November, as the decision says,
before he sent a telegram to the provincial governor of Davao and naturally this half-hearted effort, as is
so qualified in the decision, resulted in that none of the women appeared before this court on December
2d. Thus, the said order was not complied with, and in addition to this noncompliance there was the
circumstance that seven of the said women having returned to Manila at their own expense before the
said second day of December and being in the antechamber of the court room, which fact was known to
Chief of Police Hohmann, who was then present at the trial and to the attorney for the respondents, were
not produced before the court by the respondents nor did the latter show any effort to present them, in
spite of the fact that their attention was called to this particular by the undersigned.
The result of the said second order was, ,as is said in the same decision, that the respondents, on January
13th, the day fixed for the production of the women before this court, presented technically the seven (7)
women above-mentioned who had returned to the city at their own expense and the other eight (8)
women whom the respondents themselves brought to Manila, alleging moreover that their agents and
subordinates succeeded in bringing them from Davao with their consent; that in Davao they found eighty-
one (81) women who, when asked if they desired to return to Manila with free transportation, renounced
such a right, as is shown in the affidavits presented by the respondents to this effect; that, through other
means, fifty-nine (59) women have
808
808
already returned to Manila, but notwithstanding the efforts made to find them it was not possible to
locate the whereabouts of twenty-six (26) of them. Thus, in short, out of the one hundred and eighty-one
(181) women who, as has been previously said, have been illegally detained by Mayor Lukban and Chief
of Police Hohmann and transported to Davao against their will, only eight (8) have been brought to Manila
and presented before this court by the respondents in compliance with the said two orders. Fifty-nine
(59) of them have returned to Manila through other means not furnished by the respondents, twenty-six
of whom were brought by the attorney for the petitioners, Mendoza, on his return from Davao. The said
attorney paid out of his own pocket the transportation of the said twenty-six women. Adding to these
numbers the other seven (7) women who returned to this city at their own expense before January 13 we
have a total of sixty-six (66), which evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as one of the reasons for their
inability to present any of the said women that the latter were content with their life in Mindanao and did
not desire to return to Manila; and, on the other,.that the respondents, especially the first named, that is
Mayor Justo Lukban, who acted as chief and principal in all that refers to the compliance with the orders
issued by this court, could bring before December 2d, the date of the first hearing of the case, as well as
before January 13th, the date fixed for the compliance with the second order, if not the seventy-four (74)
women already indicated, at least a great number of them, or at least sixty (60) of them, as is said in the
majority decision, inasmuch as the said respondent could count upon the aid of the Constabulary forces
and the municipal police, and had transportation facilities for the purpose. But the said respondent mayor
brought only eight (8) of the women before this court on January 13th. This fact can not, in my judgment,
with due respect to the majority opinion, justify the
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VOL. 39, MARCH 25, 1919.
809
conclusion that the said respondent has substantially complied with the second order of this court, but
on the other hand demonstrates that he has not complied with the mandate of this court in its first and
second orders; that neither of the said orders has been complied with by the respondent Justo Lukban,
Mayor of the city of Manila, who is, according to the majority decision, principally responsible f or the
contempt, to which conclusion I agree. The conduct of the said respondent with respect to the second
order confirms the contempt committed by non-compliance with the first order and constitutes a new
contempt because of non-compliance with the second, because the production of only eight (8) of the
one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and
transported to Davao against their will, committing the twenty-six (26) women who could not be found in
Davao, demonstrates in my opinion that, notwithstanding the nature of the case which deals with the
remedy of habeas corpus, presented by the petitioners and involving the question whether they should
or not be granted their liberty, the respondent has not given due attention to the same nor has he made
any effort to comply with the second order. In other words, he has disobeyed the said two orders; has
despised the authority of this court; has failed to give the respect due to justice; and lastly, he has created
and placed obstacles to the administration of justice in the said habeas corpus proceeding, thus
preventing, because of his notorious disobedience, the resolution of the said proceeding with the
promptness which the nature of the same required.
"Contempt of court has been defined as a despising of the authority, justice, or dignity of the court; and
he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the
law into disrespect or disregard. * * *" (Ruling Case Law, vol. 6, p. 488.)
"It is a general principle that a disobedience of any valid order of the court constitutes contempt, unless
the defendant is unable to comply therewith." (Ruling Case Law vol. 6, p. 502.)
810
810
"It is contempt to employ a subterfuge to evade the judgment of the court, or to obstruct or attempt to
obstruct the service of legal process. If a person hinders or prevents the service of process by deceiving
the officer or circumventing him by any means, the result is the same as though he had obstructed by
some direct means." (Ruling Case Law, vol. 6, p. 503.)
"While it may seem somewhat incongruous to speak, as the courts often do, of enforcing respect for the
law and for the means it has provided in civilized communities for establishing justice, since true respect
never comes in that way, it is apparent nevertheless that the power to enforce decorum in the courts and
obedience to their orders and just measures is so essentially a part of the life of the courts that it would
be difficult to conceive of their usefulness or efficiency as existing without it. Therefore it may be said
generally that where due respect f or the courts as ministers of the law is wanting, a necessity arises for
the use of compulsion, not, however, so much to excite individual respect as to compel obedience or to
remove an unlawful or unwarranted interference with the administration of justice." /Ruling Case Law,
vol. 6, p. 487.)
"The power to punish for contempt is as old as the law itself, and has been exercised from the earliest
times. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his
ministers, :the law-making power, or the courts. In the American states the power to punish for contempt,
so far as the executive department and the ministers of state are concerned, and in some degree so f ar
as the legislative department is concerned, is obsolete. but it has been almost universally preserved so far
as regards the judicial department. The power which the courts have of vindicating their own authority is
a necessary incident to every court of justice, whether of record or not; and the authority for issuing
attachments in a proper case for contempts out of court, it has been declared, stands upon the same
immemorial usage as supports the whole fabric
811
VOL. 39, MARCH 25, 1919.
811
of the common law. * * *" (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been disobeyed; the loss of the prestige
of the authority of the court which issued the said orders, which loss might have been caused by
noncompliance with the. same orders on the part of the respondent Justo Lukban; the damages which
might have been suffered by some of the women illegally detained, in view of the f act that they were not
brought to Manila by the respondents to be presented before the court and of the further fact that some
of them were obliged to come to this city at their own expense while still others were brought to Manila
by the attorney for the petitioners, who paid out of his own pocket the transportation of the said women;
and the delay which was necessarily incurred in the resolution of the petition interposed by the said
petitioners and which was due to the fact that the said orders were not opportunely and duly obeyed and
complied with, are circumstances which should be taken into account in imposing upon the respondent
Justo Lukban the penalty corresponding to the contempt committed by him, a penalty which, according
to section 236 of the Code of Civil Procedure, should consist of a fine not exceeding P1,000 or
imprisonment not exceeding six months, or both such fine and imprisonment. In the imposition of the
penalty, there should also be taken into consideration the special circumstance that the contempt was
committed by a public authority, the mayor of the city of Manila, the first executive authority of the city,
and consequently, the person obliged to be the first in giving an example of obedience and respect for
the laws and the valid and just orders of the duly constituted authorities as well as for the orders
emanating from the courts of justice, and in giving help and aid to the said courts in order that justice may
be administered with promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100), there should be imposed upon
the re-
812
812
Rodriguez and Juta vs. Municipal Council of Tagig.
spondent Justo Lukban a fine of five hundred pesos (P500), and all the costs should be charged against
him. Lastly, I believe it to be my duty to state here that the records of this proceeding should be
transmitted to the AttorneyGeneral in order that, after a study of the same and deduction from the
testimony which he may deem necessary, and the proper transmittal of the same to the fiscal of the city
of Manila and to the provincial fiscal of Davao, both the latter shall present the corresponding
informations for the prosecution and punishment of the crimes which have been committed on the
occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the
city of Manila and Chief of Police Anton Hohmann, and also of those crimes committed by reason of the
same detention and while the women were in Davao. This will be one of the means whereby the just hope
expressed in the majority decision will be realized, that is, that in the Philippine Islands there should exist
a government of laws and not a government of men and that this decision may serve to bulwark the
fortifications of an orderly Government of laws and to protect individual liberty from illegal
encroachments.
Writ granted.
_____________ Villavicencio vs. Lukban., 39 Phil., 778, No. 14639 March 25, 1919
546
SUPREME COURT REPORTS ANNOTATED
Aquino, Jr. vs. Military Commission No. 2
No. L-37364. May 9, 1975.*
BENIGNO S. AQUINO, JR., petitioner, vs. MILITARY COMMISSION NO. 2, CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, and SECRETARY OF NATIONAL DEFENSE, THE CHIEF JUSTICE OF THE SUPREME
COURT, an d SECRETARY OF JUSTICE,** respondents.
Prohibition; Withdrawal of petition for prohibition will be denied where it raises issues of paramount
public interest.The Justices (seven against three) who voted to deny the withdrawal are of the opinion
that since all matters in issue in this case have already been submitted for resolution, and they are of
paramount public interest, it is imperative that the questions raised by petitioner on the constitutionality
and legality of proceedings against civilians in the military commissions, pursuant to pertinent General
Orders, Presidential Decrees and Letters of Instruction, should be definitely resolved.
Military Law; A military commission has jurisdiction to hear cases filed against civilians during period of
martial law.We hold that the respondent Military Commi ssion No. 2 has been lawfully constituted and
validly vested with jurisdiction to hear the cases against civilians, including the petitioner. The Court has
previously declared that the proclamation of Martial Law (Proclamation No. 1081) on September 21, 1972,
by the President of the Philippines is valid and constitutional and that its continuance is justified by the
danger posed to the public safety . To preserve the safety of the nation in times of national peril, the
President of the Philippines necessarily possesses broad authority compatible with the imperative
requirements of the emergency . On the basis of this, he has authorized in General Order No. 8 (September
27, 1972) the Chief of Staff, AFP, to create military tribunals to try and decide cases of military personnel
and such other cases as may be referred to them. In General Order No. 12 (September 30, 1972), the
military tribunals were vested with jurisdiction exclusive of the civil courts, among others, over crimes
against public order, violations of the Anti-Subversion Act, violations of the laws on firearms, and other
crimes which, in the face of the emergency, are directly related to the quelling of the rebellion and
preservation of the safety and security of the Republic.
Constitutional law; Due process; Military law; During martial
_______________
* EN BANC.
** Per Supplemental Petitions.
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547
law the administrator should have ample means to quell rebellion and restore civil order.Petitioner
nevertheless insists that he being a civilian, his trial by a military commission deprives him of the right to
due process, x x x This argument ignores the reality of the rebellion and the existence of martial law. It is,
of course, essential that in a martial law situation, the martial law administrator must have ample and
sufficient means to quell the rebellion and restore civil order. Prompt and e ffective trial and punishment
of offenders have been considered as necessary in a state of martial law, as a mere power of detention
may be wholly inadequate for the exigency , x x x Indeed, it has been said that in time of overpowering
necessity , Public danger warrants the substitution of executive process for judicial process. According
to Schwartz, The immunity of civilians from military jurisdiction must, however, give way in areas
governed by martial law. When it is absolutely imperative for public safety , legal processes can be
superseded and military tribunals authorized to exercise the jurisdiction normally vested in courts.
Military Law; Constitutional law; Continued existence of military tribunals within intendment of Sec. 3,
par. 2 of Transitory Provisions of Constitution.In any case, We cannot close Our ey es to the fact that
the continued existence of these military tribunals and the exercise by them of jurisdiction over civilians
during the period of martial law are within the contemplation and intendment of Section 3, paragraph 2
of Article XVII of the Constitution. These are tribunals of special and restricted jurisdiction created under
the stress of an emergency and national security. This is the only logical way to construe said Sec. 3, par.
2 of Art. XVII of the Constitution, in relation to Gen. Orders Nos. 8, 12 and 39, in the context of
contemporary history and the circumstances attendant to the framing of the new Charter.
Same; Same; Responsibility for acts done during martial law must be taken by authorities administering
it.When it has been established that martial law is in force, the responsibility for all acts done
thereunder must be taken by the authorities administering it. It is a serious responsibility which merits
the cooperation of all in the collective desire for the re storation of civil order.
Same; Same; Due process; Due process is not a guarantee of any particular form of tribunal in criminal
cases.Neither are We impressed with petitioners argument that only thru a judicial proceeding before
the regular courts can his right to due process be preserved. 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
548
548
opportunity to defend and trial before an impartial tribunal, adequately meet the due process re
quirement. Due process of law does not necessarily mean a judicial proceeding in the regular courts, x x x
Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures
observance of the fundamental requisites of procedural due process, due notice, an essentially fair and
impartial trial and reasonable opportunity for the preparation of the defense.
Same; Same; Same; Prejudice on part of President against an accused before military tribunal cannot be
presumed.It is, however, asserted that petitioners trial before the Military commission will not be fair
and impartial, as the President had already prejudged petitioners cases and the military tribunal is a mere
creation of the President, and subject to his control and direction. We cannot, however, indulge in
unjustified assumption. Prejudice cannot be presumed, especially if weighed against the great confidence
and trust reposed by the people upon the President and the latters legal obligation under his oath t o
do justice to every man, x x x This assumption mu st be made because innocence, not wrongdoing, is
presumed. The presumption of innocence includes that of good faith, fair dealing and honesty . This
presumption is accorded to every official of the land in the performance of his public duty . There is no
reason why such presumption cannot be accorded to the President of the Philippines upon whom the
people during this period has confided powers and responsibilities which are of a very high and delicate
nature.
Same; Same; Same; Administrative Order No. 355 creating a committee to investigate charges against
Aquino valid.It was precisely because of petitioners complaint that he was denied the opportunity to
be heard in the preliminary investigation of his charges that the President created a Special Committee to
reinvestigate the charges filed against him in the military commission.
Same; Same; Same; Preliminary Investigation; Accused has right to cross-examine witnesses in preliminary
investigation under Administrative Order 355.The infirmity of this contention is apparent from the fact
that the Committee shall have all the powers vested by law in officials authorized to conduct preliminary
investigations. We have held as implicit in the power of the Investigating Fiscal or Judge in the discharge
of his grave responsibility of ascertaining the existence of probable cause, is his right to cross-examine the
witnesses since cross-examination whether by the judge or by the prosecution supplies the gap by
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549
permitting an instant contrast of falsehoods and opposing half-truths, mixed with elements of truth, from
which the examining judge or officer is better able to form a correct sy nthesis of the real facts.
Same; Same; Same; Same; Presidential Decree No. 39, as amended by Presidential Decree No. 77 grants
accused right to counsel.Contrary to petitioners contention, Section 1(b) of Pres. Decree No. 77
specifically grants him the right to counsel, and Pres. Decree No. 328 amended Pres. Decree No. 39,
precisely to secure the substantial rights of the accused by granting him the right to counsel during
preliminary investigation.
Same; Same; Same; Same; Preliminary investigation not essential part of due process.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. The absence thereof does not impair the validity
of a criminal information or affect the jurisdiction of the court over the case. As a creation of the statute
it can, therefore, be a modified or amended by law.
Same; Same; Same; Same; Right to cross-examine witnesses during preliminary investigation depends
upon discretion of investigating officer.There is no curtailment of the constitutional right of an accused
person when he is not given the opportunity to cross-examine the witnesses presented against him in the
preliminary investigation before his arrest, this being a matter that depends on the sound discretion of
the Judge or investigating officer concerned.
Same; Same; Same; Same; Reason why Pres. Decree No. 77 eliminated provision for cross-examination is
justified by necessity of martial law.It was found necessary in Pres. Decree No. 77 to simplify the
procedure of preliminary investigation to conform to its summary character, by eliminating the cross-
examination by the contending parties of their respective witnesses which in the past had made the
proceeding the occasion for the full and exhaustive display of parties evidence. The procedure prescribed
in the aforecited decrees appears justified by the necessity of disposing cases during martial law,
especially those affecting national security, at the earliest date.
Same; Same; Same; Same; Pres. Decree No. 77 is part of Constitution.It may be relevant to note that
recently in Littong v. Castillo, this Court denied for lack of merit a petition challenging the validity of Pres.
Decree No. 77 issued on December 6, 1972 on the ground that aforesaid decree now forms part of the
law of the land.
550
550
Criminal procedure; Discovery procedures; Taking of testimony or deposition under Pres. Decree No 328
being similar to Sec. 7, Rule 119 of Rules of Court is proper and valid.The provisions of Pres. Decree No.
328, dated October 31, 1973, for the conditional examination of prosecution witnesses before trial, is
similar to the provisions of Section 7 of Rule 119 of the R evised Rules of Court, x x x We, therefore, hold
that the taking of the testimony or deposition was proper and valid.
Same; Same; In the taking of deposition only the order of the court authorizing the taking of deposition
must be served on accused; the petition to allow taking of deposition need not be served on accused.
The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses
of the prosecution and fixing the date and time thereof is the one that must be served on the accused
within a reasonable time prior to that fixed for the examination of the witnesses so that the accused may
be present and cross-examine the witnesses.
Constitutional law; Bill of Rights; Criminal procedure; Discovery procedures; Accused may waive his right
to be present in the proceeding for perpetuation of testimony even if charged with a capital offense.
Considering the aforecited provisions of the Constitution, 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., and the absence of any law specifically requiring his presence at all stages of his
trial, there appears, therefore, no logical reason why petitioner, although he is charged with a capital
offense, should be precluded from waiving his right to be present in the proceedings for the perpetuation
of testimony, since this right, like the others aforestated, was conferred upon him for his protection and
benefit. It is also important to note that under Section 7 of Rule 119 of the Revised Rules of Court
(Deposition of witness for the prosecution) the Failure or refusal on the part of the defendant to attend
the examination or the taking of the deposition after notice hereinbefore provided, shall be considered a
waiver . . . Similarly , Presidential Decree No. 328 expressly provides that . . . the failure or refusal to
attend the examination or the taking of the deposition shall be considered a waiver.
Same; Same Same; Same; Exception to accuseds right to waive his presence at all stages of a criminal trial
is where his presence at all stages of a criminal trial is where his presence is necessary for identification.
Since only 6 Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and Aquino) are of the view
that petitioner may waive his right to be present at all stages of the proceedings while
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551
5 Justices (Castro, Makasiar, Esguerra, Concepcion, Jr. and Martin) are in agreement that he may so waive
such right, except when he is to be identified, the result is that the respondent Commissions Order
requiring his presence at all times during the proceedings before it should be modified, in the sense that
petitioners presence shall be required only in the instance just indicated. The ruling in People vs.
Avancea is thus pro tan to modified.
Military Law; Constitutional Law; There must be an official proclamation, by the President of cessation of
public emergency that gave rise to declaration of martial law.In the absence of any official proclamation
by the President of the cessation of the public emergency , We have no basis to conclude that the rebellion
and communist su bversion which compelled the declaration of martial law, no longer pose a danger to
public safety .
Same; Same; Military tribunals bound to observe fundamental principles of law and justice.As in trial
before civil courts, the presumption of innocence can only be overcome by evidence bey ond reasonable
doubt of the guilt of the accused. These tribunals, in general, are bound to observe the fundamental rules
of law and principles of justice observed and expounded by the civil judicature. Section 11 of the Manual
for Courts-Martial specifically provides that the rules of evidence generally recognized in the trial of
criminal cases in the courts of the Philippines shall be applied by courts-martial. This is applicable in the
military commission. There is, therefore, no justification for petitioners contention that such military
tribunals are concerned primarily with the conviction of an accused and that proceedings therein involve
the complete destruction and abolition of petitioners constitutional rights. This is not, however, to
preclude the President from considering the advisability of the transfer of these cases to the civil courts,
as he has previously announced.
CASTRO, J.: Concurring and dissenting
Actions; Dismissals; Cases involving issues of transcendental and grave import may not be voluntarily
withdrawn.I mu st state that I voted to deny the petitioner Aquinos moti on to withdraw his petitions
and all related motions and incidents, for the self-same reasons that impelled my vote to deny Jose W.
Diokn os motion to withdraw his petition in the Martial Law cases (Aquino, et al. vs. Enrile, et al., L-35546,
and other allied cases.) Like in the cases just adverted to, there are in the case at bar considerations and
issues of transcendental and grave import, and I apprehend that great disservice may be caused to the
national interest if these are not resolved on the merits.
552
552
Constitutional law; Rights of the accused; Due process; Due process in relation to an accused does not
exclusively mean judicial process.I am hard put to understand how and why the petitioners counsels
conjured the argument that under the Bill of Rights the due process accorded to persons accused in
criminal cases contemplates only judicial process. This argument runs squarely athwart the time-honored
doctrine in the Philippines as well as in the United Statesa doctrine that the petitioners counsel must
surely be aware ofthat due process in criminal trials may comprehend not only judicial process, but also
executive process (and even legislative process in the proper cases).
Same; Appeals; Right to appeal is not constitutionally guaranteed.It seems rather elementary that the
right of appeal, unless the Constitution expressly guarantees such right, is merely statutory and may be
withdrawn, modified or altered at any timea principle that his counsel know only too well. Even an
appeal to an intermediate collegiate appellate court or to the Supreme Court is not a right under the
Constitution unless an explicit guarantee can be found in the words thereof.
Same; Martial law; Military Tribunals; Various levels of automatic appeal in the hearings of the military
tribunals insures fair hearing.As far as appeal is concerned, it is apparent that the petitioners counsel
are not aware of the number of the levels of review of a decision of conviction by a military commission
in our jurisdiction. Four levels of review (equivalent to four levels of automatic appeal) are provided,
namely: the first review by the Staff Judge Advocate of the Chief of Staff (who appoints the military
commission); the second review by a Board of Review of not less than three senior officers of the Judge
Advocate Generals Service; and third review by a Board of Military Review acting for the Secretary of
National Defense and consisting of not less than two lawy er-officers of at least field rank; and the fourth
and final review by the Secretary of Justice for the President of the Philippines as Commander-in-Chief.
These four reviews are compulsory ; none of them may be by passed or dispensed with.
Same; Supreme Court; The peoples faith in the judiciary has remained strong.To declare or imply that
the entire Judiciary, from the Chief Justice and Associate Justices of the Supreme Court down to the last
municipal judge, is under dictation by the President, is an indictment that can come only from a person
who does not know whereof he speaks. If the petitioner has no faith in military justice and at the same
time professes absolute lack of faith in the Judiciary , does this mean that the petitioner is so magically
endowed that only
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553
he and he alone is capable of meting out justice in this country? The over-all workload of all the courts in
the Philippines has increased immeasurably . If this does not indubitably indicate the faith of the people
in the Judiciary then I do not know what does. If the petitioner does not share the faith of the people in
the Judiciary , we must look to reasons other than the ostensible ones for his irresponsible and
reprehensible statements. To my mind these reasons are obvious and need not be belabored.
Same; Rights of the accused; Due process; It is the duty of the State to have the accused properly identified
at the trial.The trouble with the advocacy of the so-called right of total waiver is that it places undue
and inordinate stress on the rights of the individual and completely refuses to recognize that the State,
too, has its own rights and duties. I do not believe that there can be any debate on the right and obligation
of the State to administer justice properly . Part and parcel of this right and obligation is the right of a
tribunal, whether judicial or executive, to satisfy itself that the person whom it may later convict upon the
evidence is the accused pointed to by the ey e-witnesses for the prosecution. For, the proper identification
of the accused is the very quitessence and sine qua non of any valid prosecution, is the very fundament
of due process in any criminal trial. Surely , if the commission is to discharge its burden conscientiously ,
it cannot be denied the right to determine for itself the proper identity of the person who stands accused
before it. This right has absolute primacy over what the petitioner calls his right of total waiver of his
presence.
Same; Criminal proceedings; Trial in the absence of the accused is allowed only where the latter has
jumped bail or escaped.My understanding of the provisions of the new Constitution on waiver of
presence in criminal proceedings is that such waiver may be validly implied principally in cases where the
accused has jumped bail or has escaped, but certainly may not be asserted as a matter of absolute right
in cases where the accused is in custody and his identification is needed in the course of the proceedings.
Same; Rights of the accused; When accused may waive his presence in court even for purposes of
identification.Thus, I voted for qualified waiver: the accused may waive his presence, in the criminal
proceedings except at the stages where identification of his person by the prosecution witnesses is
necessary , I might agree to the proposition of total waiver in any case where the accused agrees
explicitly and unequivocally in writing signed by him or personally manifests clearly and indubitably in
open court and such manifestation is recorded, that whenever a prosecution witness
554
554
mentions a name by which the accused is known, the witness is referring to him and to no one else.
FERNAND O, J.: Concurring and dissenting
Actions; Dismissal; Court should give grave consideration to the desire of the accused to withdraw his
petition.In the belief that petitioners motion to withdraw should be granted, I am compelled to dissent.
This is with due recognition of the principle that the Court is vested with discretion to grant or refuse such
a plea. This notwithstanding, I am fully persuaded that the more appropriate response is one of acceding
to petitioners pray er that all cased filed on his behalf in this Court be terminated. The assumption must
be that before he did arrive at such a conclusion, he had weighed with care and circumspection all the
relevant aspects of the situation . . . . There must be more understanding shown for th e state of his phy
sical and mental health after this long period of confinement, and of late of his depriving himself of the
daily sustenance. What is more, the cutting edge of his sharp and pointed words my be blunted by the
performance of this court, which in the ultimate analy sis is the ultimate criterion as to whether or not it
has adequately discharged its responsibilities or lived up to the trust reposed in it. The judgment is for the
entire constituency of informed and concerned citizens, not of petitioner alone. As for any individual
Justice, I would assume that what matters most is the verdict of his conscience.
Constitutional law; Martial law; Military Tribunals; The military commissions have been constitutionally
established.On the question of the scope of the compet e nc e of a milita ry commis sion, I would
predicate my vote on the constitutional provision that affixes to General Orders Nos. 8, 12, and 39 the
status of being part of the law of the land. With due recognition of the vigor with which counsel for
petitioner had pressed the point that such a character cannot be impressed on the aforesaid general
orders if found in conflict with the present Constitution, I still find difficulty in according complete
acceptance to such a view. To do so in my opinion would mean closing ones ey es to what was intended
by the 1971 Constitutional Convention insofar as it did provide for the continued existence of a military
commission with such powers as were then exercised.
Same; Same; Same; Absent the transitory provisions of the Constitution, military tribunals would have no
jurisdiction over civilians while the civil courts are open.It is to be stressed further that were it not for
the above mandate of the Transitory Provisions, the submission of petitioner as to a military commission
being devoid of jurisdiction over civilians elicit s approval. . . . Under the view I
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555
entertain that Duncan v. Kahanamoku supplies the applicable principle under the 1935 Constitution, the
citations from Winthrop and Fairman found in the opinion of the Court are, for me, less than persuasive.
What compels concurrence on my part, to repeat, is the law of the land section found in the Transitory
Provisions. Absent that provision, I would be unable to yield to the conclusion reached by my brethren on
the question of jurisdiction.
Same; Rights of the accused; Military Tribunals; Military tribunals should respect all the constitutional
rights of the accused.The recognition implicit in the above constitutional precept as to the competence
of a military commission to conduct criminal trials of certain specified offenses, to my mind, carries with
it the duty to respect all the constitutional rights of an accused. It is from that perspective that a discussion
of the due process guarantee gains significance. It has a connotation both substantive and procedural. As
to the latter aspect, it is true that it has at its core, to follow the classic formulation of Webster, the
requirement of a hearing before condemnation and a process of rational inquiry , but it has a much wider
radiation extending to all the legal safeguards enjoy ed by a person indicted for an offense.
Same; Same; Due process; There is merit to charge that military tribunal might not be totally impartial.
We come to what for me is the crucial issue posed, labeled the principal question in the memorandum
of petitioner. He would invoke the highly -prized ideal in adjudication announced in Gutierrez, likewise a
due process requirement, that a party to a trial is entitled to nothing less than the cold neutrality of an
impartial judge. His fears, not devoid of plausibility , proceed from respondent Commission having been
created by the Presidents Order and subject to his control and direction being unable to ignore his
characterization that the evidence against petitioner was not only strong [but] o verwhelming. It is to
that implacable tenet of objectivity and neutrality, one of constitutional dimension, that appeal is made.
For Gutierrez has been followed subsequently in an unbroken line of decisions with an impressive concord
of opinion. That for petitioner is to buttress a stand that mirrors the realities, the reinforce the solidity of
his position. For was it not Stoessinger who pointed out that there may be at times a tendency difficult to
resist in subordinate military agencies to view matters in the light supplied by previous pronouncements
of those higher up in the ranks and to respo nd to situations less on the basis of empirical evidence but
more on that of conformity to a position officially taken. I do not have to go that far. There is acceptance
on my part that, as the opinion of the Court states, respondent military commissio n may be trusted to be
fair and that at F
556
556
any rate there are still various appeals in the offing. Thus there are built-in defenses against any erroneous
or unfair judgment. There is, however, this other point to consider. For the Gutierrez ruling as now
interpreted does not only guard against the reality but likewise the appearance of partiality . That would
argue strongly for the transfer of the trial of the criminal charges against petitioner to civil courts.
Same; Same; Same; Time-tested Constitutional doctrines must be safeguarded even during martial law.
It is to be admitted that in coping with the urgencies of the times, in accordance with what is ordained by
the fundamental law and thus have its promise fulfilled, this Court is compelled to enter a domain much
less clearly mapped out than before. It has to find its way as best it can with the light supplied by applicable
precedents and the promptings of reason at times rendered obscure by the clouds of the emergency
conditions. Moreover, there must be an awareness that the complexities of an era may not yield to the
simpl icities of a constitutional fundamentalism as well as of the pitfalls of merely doctrinaire
interpretations. It cannot apply precepts with inflexible rigidity to fast-changing situations. The notion of
law in flux carries it far indeed from a fixed mooring in certainty . There must be, it cannot be denied,
greater sensitivity to the shifts in approach called for by the troubled present. Nevertheless, to paraphrase
Cardozo, care is to be taken lest time-tested doctrines may shrivel in the effulgence of the overpowering
ray s of martial rule.
TEEHANKEE, J., dissenting:
Actions; Withdrawal of; Withdrawal of action where issu es may be resolved in other cases; Case at bar.
The withdrawal would no t emasculate the issues of paramount public interest that need to be resolved
for they may be duly resolved in the other cases which remain pending.
Same; Same; Necessity of actual case and controversy for the exercise of judicial power; Case at bar.
The 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.
Constitutional law; Martial law; Military tribunals without jurisdiction over civilians for civil offenses
committed by them; Reasons; Case at bar.Civilians placed on trial for civil offenses under general law
are entitled to trial by judicial process, not by
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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. 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. Military commissions or tribunals are admittedly not courts and do not form part of the judicial
sy stem.
Same; Same; Due process; Deprivation of constitutional right to due process effected by proceedings
before military commission; Rights affected; Case at bar.The vested rights invoked by the 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 the 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 the Supreme Court wherein a qualified majority of ten (10) affirmative votes for the
affirmance of the death penalty is required.
Same; Same; Same; Elimination by decrees of right to preliminary investigation a violation of the
prohibition against the enactment of ex post facto laws; Case at bar.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.
Same; Same; Same; Right to be heard by a fair and impartial tribunal; Case at bar.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 of his renowned legal sagacity and experience,
still under the environmental facts where the military appears to have been
558
558
impressed by the Presidents appraisal of the evidence and without casting any reflection on the integrity
of the members of the military commission which petitioner himself acknowledged, the doctrine
consistently held by the Court that elementary due process requires a hearing before an impartial and
disinterested tribunal and that All suitors . . . are entitled to nothing short of the cold neutrality of an
independent, wholly free, disinterested and impartial tribunal calls for application in the present case.
Same; Same; Same; Right of total waiver of presence in perpetuation of testimony proceedings; Case at
bar.Whereas previously the right of waiver of the accuseds presence in criminal proceedings was
generally recognized save in capital cases (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
unqua lifiedly 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, 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 e xplicitly
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 accuseds absence and the failure
or refusal to attend the examination or the taking of the deposition shall be considered a waiver. Thus,
an accuseds 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.
Same; Same; Same; Same; Perpetuation proceedings not part of trial; Case at bar.The perpetuation
proceedings may be conditionally considered part of the trial only when the deponent-witness is at the
time of the trial dead or incapacitated to testify or cannot with due diligence be found in the Philippines.
Absent any of these conditions, it is not part of the trial and the witness or witnesses must give their
testimony anew (not their previous or perpetuated testimony ) as the best-evidence subject to the
crucible of cross-examination.
Same; Same; Special Reinvestigating Committee; Preliminary investigation should be conducted by the
Committee; Reason; Case at bar.The examination of the prosecution witnesses and the perpetuation of
their testimony should properly be held before the Special Reinvestigating Committee created under
Administrative
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VOL. 63, MAY 9, 1975
559
Order No. 355 for the simple reason that all proceedings before the 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.
BARREDO, J.: Concurring
Actions; Dismissal; Voluntary withdrawal of action not allowed where withdrawing party casts aspersions
on integrity of court.It is a settled rule consistent with the fitting dignity of judicial proceedings that
after a case has been submitted for decision, withdrawal of the same from the jurisdiction of the court is
a matter addressed to its sound discretion and is far from being a matter of right on the part of any of the
parties. For obvious reasons, a party should not be allowed to provoke issues of far reaching interest and
importance and hurl accusations against the actuations of the adverse party , thereby creating doubts in
the public mind as to the validity of said actuations, and thereafter, upon being confronted with the
defenses of his opponent and sensing perhaps probable defeat, to just take a, retreat, without expressly
admitting the infirmity of his position, thereby making sure that he can with relative impunity continue
with his critical attitude in the manner suitable to his convenience and purposes. Observance of the
laudable policy of terminating litigations at the earliest opportunity may not be invoked when the evident
result is detriment to the more paramount objective of having a definite ruling by the Supreme Court as
to what the law is in regard to the matters of vital public interest actually and properly brought to it for
adjudication.
Constitutional law; Supreme Court; Independence of the Supreme Court reasserted.I would like to state
here emphatically that petitioners apprehensions about the dangers to the independence of the judiciary
of the Philippines at present, particularly the Supreme Court, is nothing more than a priori opinion and is
not and cannot be supported by facts. After all, the Court does not have to necessarily agree with
everyone who feels that certain acts of the Government are illegal or unconstitutional. Surely, a
propensity to overrule the other departments of the Government is not the true mark of the
independence of the judicial branch. If so far, the Supreme Court has not y et declared any impugned acts
of the President or the martial law government unconstitutional, it is not because the Court is subservient
to the President in any way, but simply because, in the honest conviction of its members, the proper case
for such a declaration has not come. That the Court can and will
560
560
strike down acts of the President in the appropriate instances there should be no doubt whatsoever. The
people can rest assured that when the proper occasions arise, the justices, individually and collectively,
will not be found wanting in wisdom and courage to act accordingly , regardless of what might be the
views and wishes of the Executive and/or any other department of the government.
Same; Martial law; Military Tribunals; Trial by military tribunals is a natural and logical concomitant of
martial rule.I have alway s maintained it is elementary , historically and legally, that in any regime of
martial law, offenders against its objectives are and ought to be tried by military tribunals in accordance
with the procedure prescribed for them. To feel apprehensive then that unless the Court upholds
petitioners contention that as a civilian he cannot be tried by respondent commission for the crimes
allegedly committed prior to the proclamation of martial law, thousands of Filipinos run the risk of being
similarly hailed before military courts and deprived of their constitutional rights to due process, is to
ignore that throughout the life of all nations, when rebellions and revolutions were mounted, no
distinction has ever been drawn, among those igniting the uprising which naturally was done before the
military courts of the legitimate or victorious government, at least, whenever prosecution had to be
undertaken before the hostilities were over. And there being no question that Proclamation 1081 which
established martial law in the Philippines is valid, it necessarily follows that respondent military tribunal
which has been created under it are vested with jurisdiction to try and decide petitioners cases, it
appearing that the charges and specifications against him are related to the causes that gave occasion to
the Proclamation, no matter that the offenses charged therein were committed long before the issuance
of said proclamation.
Same; Same; Same; The fact of existence of civil courts does not militate against the jurisdictions of
military tribunals.It is insisted, however, that since the civil courts are open, it is derogative of their
unconstitutional authority to sanction petitioners trial in a military commission. Such contention ignores
the fundamental mission of military courts during martial law. In any martial law situation wherein civil
courts are continued, their co-existence with military tribunals ought not to create any confli ct of
jurisdiction. The trial and punishment of offenders against the established order should as a matter of
necessity be left in the hands of the military whereas the civil courts are supposed to aid in the
preservation of normal society among the non-offenders by continuing the exercise of their jurisdiction
over all civil matters wh ich have no direct relation to the imperatives of the Proclamation. And as very
well explained in the
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VOL. 63, MAY 9, 1975

561
main opinion, the constitutional requirements of due process are being complied with even in the military
tribunals.
Same; Due pro cess of law; There is no prejudgment or denial of due process in off-hand evaluation by
President of evidence on hand.The statements attributed to the President and which petitioner quotes
and maintains are reflective of the Presidents supposed pre-judgment of his cases, viewed objectively ,
would indicate at most only an off-hand evaluation of the evidence then on hand, without regard to the
other evidence now in possession of the prosecution, and without counting those which petitioner will
present on his behalf, and does not necessarily amount to a pronouncement of guilt. As such, therefore,
they do not sufficiently prove what the judgment of the President would be after the whole evidence of
petitioners cases shall have been examined and evaluated by him. In other words, from the strictly legal
point of view, petitioners pose about denial of due process to him by reason of prejudgment lacks
persuasiveness.
Same; Rights of the accused; Accused cannot be compelled, even for the purpose of identification, to be
present at the trial.Speaking for my self, I find eminent merit in the contention of petitioner that even
for identification purposes he cannot be made to be present at the trial against his will. Since under the
Constitution, trial of criminal cases in the absence of the accused is allowed, when after the arraignment
and in spite of due notice he fails to appear without justification, pursuant to Section 19 of the Bill of
Rights or Article IV, I cannot see why an accused who does not want to undergo the experience of being
repeatedly pointed to and of being the target of the curious ey es of the public, cannot elect to leave the
defense of his case and of his rights to his counsel in his absence or even put himself completely at the
mercy of the court, secure in the thought that it is any way the inescapable duty of the judge not to allow
anything illegal or inhuman to be done to him.
Same; Same; Accused may be identified even in his absence.My understanding is that the problem of
identification of an accused may be adequately solved without violating the justified wishes of the accused
to be left alone. To start with, if he is referred to by the witnesses of the prosecution by name , the court
may presume that the accused who has acknowledged his true name at the arraignment is the one
indicated. This Court ruled inequivocally more than sixty -five y ears ago in U.S. vs. Adolfo, 12 Phil. 296,
and reiterated it in People vs. Santos, 53 Phil. 863, twenty y ears later, and there has been no contrary
opinion since then, that the rebuttable presumption o f identity of person is applicable not only in civil
cases but also to the
562
562

identification of the accused in criminal cases. To my mind, there is absolutely no need that the accused
be personally identified by the court while the inculpating witness is testifying, where the accused
voluntarily waives his presence and even suggests to the court, as petitioner has done, to avail of the legal
presumption just mentioned. (See Sec. 5 (w), Rule 131.)
Same; Same; Perpetuation of testimony; Accused has right to recall, during the trial, witnesses of the
prosecution presented during the perpetuation proceeding.Sustaining as I do sustain the right of
petitioner to absent himself at the trial proper, it is unnecessary for me to discuss whether or not the
perpetuation proceedings constitute part of the trial. I must make it clear, however, than even if We were
to hold that they are part of the trial proper, I insist that if the witnesses who have testified or will testify
at the perpetuation proceedings should be available when the trial actually takes place, it is the right of
the accused to have them recalled and to be examined further and even anew in the sound discretion of
the trial court. Presidential Decree 328, paragraph 2, amending subparagraph 4 b (7) of Presidential
Decree No. 39 is to be so construed, in the interest of fairness and justice.
MUOZ PALMA, J., Dissenting:
Prohibition; Motion to withdraw petition for prohibition should be granted when petitioner no longer
desires to seek redress from Court.I am convinced that petitioner no longer desires to seek redress or
relief from this Court. He would rather make of his plight 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?
Same; Prohibition should be granted to prevent trial of civilians by military courts or commi ssions for
offenses committed before or even during martial rule where civil authority is supreme and civil courts
are existing and functioning.I vote to grant the Petition for Prohibition because 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 stakewhether 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
under the Constitutionraises before my ey es the gruesome spectre
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VOL. 63, MAY 9, 1975
563
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, x x x 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.
Constitutional law; Bill of Rights; Bill of rights must remain firm and unyielding to all forms of pressure.
The Bill of Rights must remain firm, indestructible, and uny ielding 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.
ORIGINAL PETITION in the Supreme Court. Prohibition with preliminary injunction.
The facts are stated in the opinion of the Court.
Tanada, Salonga, Ordoez, Gonzales, Rodrigo, Jr., Roxas, Arroyo, Castro and Felipe for petitioner.
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.
ANTONIO, J.:
Following the proclamation of martial law in th e Philippines, petitioner was arrested on September 23,
1972, pursuant to General Order No. 2-A of the President for complicity in a conspiracy to seize politic al
and state power in the country and to take over the Government. He was detained at Fort Bonifacio in
Rizal province. On Septemb er 25, 1972, he sued for a writ of habeas corpus1 in which he questioned the
legality of the proclamation of martial law and his arrest and detention. This Co urt issued a writ of habeas
corpus, returnable to it, and required responden ts to file their respective answers, after which the case
was heard. Th ereafter, the parties submi tted
_______________
1 G. R. No. L-35546, entitled In the Matter of the Petition for Habeas Corpus of Benigno S. Aquino, Jr., et
al., Petitioners, v. Hon. Juan Ponce Enrile, et al., Respondents.
564
564
their me moranda. Petitioners last Reply me mora ndum was. d ated No v emb er 30 , 197 2. On Sep temb
er 17 , 197 4, th is Co urt dismissed the petition and upheld th e validity of martial law and the arrest and
detention of petitioner.2
In the present case, petitioner challenges th e jurisdiction of military co mmissions to try him, alone or
together with others, for illegal possession of firearms, a mmunition and explosives, for violation of the
Anti-Subversion Act and for murder. The charges are contained in six (6) amended charge sheets3 filed on
August 14, 1973 with Military Co mmission No. 2.
_______________
2 Martial Law Cases (Aquino v. Enrile), Nos. L-35546, L-35538, L-35540, L-35567, and L-35573, September
17, 1974, 59 SCRA 183-651.
3 Sheet No. 1In Criminal Case No. MC-2-19 the charge sheet alleged violation of General Order Nos. 6
and 7 in relation to Presidential Decree No. 9,
In that the above-named accused, person subject to trial by the Military Tribunals, in or about the period
comprising the year 1971 to October 20, 1972, at 25 Times St., and 14 Ledesma Court, Projects, Quezon
City and Paraaque, Rizal, did then and there wilfully , unlawfully and feloniously have in his possession,
custody and control the following firearms, ammunition, explosives and accessories, to wit . . .
Sheet No. 2In Criminal Case No. MC-2-20 the charge sheet alleged violation of the Anti-Subversion Act,
In that above-named accused, persons subject to trial by the Military Tribunals, as ranking leaders of the
Communist Party of the Philippines and/or its military arms such as the Hukbong Mapagpalay a ng Bay an
(HMB) and/or the New Peoples Army (NPA) constituting an organized conspiracy to overthrow the
Government of the Republic of the Philippines or the government of any of its political subdivisions by
force, violence, deceit; subversion and other illegal means for the purpose of placing such government or
political subdivision under the control and domination of an alien power, in order to achieve the same,
the accused, BENIGNO S. AQUINO, JR., in or about the month of May , 1969, or prior and/or subsequent
thereto, in Barrio Alto, Hacienda Luisita, San Miguel, Tarlac, Tarlac, did then and there knowingly , wilfully
, unlawfully and feloniously by overt acts, conspi ring, confederating with other leaders and/or members
of their said organization, give to one of them, the other accused BENJAMIN M. BIE, JR. alias
565
VOL. 63, MAY 9, 1975
565
Aquino, Jr. vs. Military Commission No, 2
The original petition in this case was filed on August 23, 1973. It sought to restrain the respondent Military
Commission from proceeding with the hearing and trial of petitioner on August 27, 1973. Because of the
urgency of the petition, this
_______________
COMDR MELODY of the HMB and/or the NPA six (6) armalite rifles to deliver the said firearms to BERNABE
BUSCAYNO alias COMDR DANTE of the HMB/NPA for the purpose of using the said firearms against the
duly constituted government of the Philippines.
Sheet No. 3In Criminal Case No. MC-2-21 the charge sheet also alleged violation of the Anti-Subversion
Act,
In that the above-named accused, persons subject to trial by the Military Tribunals, as ranking leaders of
the Communist Party of the Philippines and/or its military arms such as the Hukbong Mapagpalay a ng
Bay an (HMB) and/or the New Peoples Army (NPA) consti tuting an organized conspiracy to overthrow
the Government of the Republic of the Philippines or the government of any of its political subdivisions
by force, violence deceit, subversion and other illegal means for the purpose of placing such government
or political subdivision under the control and domination of an alien power, in order to achieve the same,
the accused, BENIGNO S. AQUINO, JR., in or about the month of January 1971 or prior and/or, subsequent
thereto, at 25 Times St., Quezon City , did then and there knowingly , wilfully , unlawfully and feloniously
by overt acts, conspiring, confederating with other leaders and/or members of said organizations, give to
one of them, the other accused BENJAMIN SANGUYO alias COMDR PUS A of the HMB and/or NPA one (1)
AK-47 rifle plus two (2) magazines with several rounds of ammunition and two (2) automatic M-2 carbines
(folding ty pe) plus two (2) banana ty pe magazines with ammunition for the purpose of using said firearms
against the duly constituted government of the Philippines.
Sheet No. 4In Criminal Case No. MC-2-22 the charge sheet alleged the commission of murder in relation
to General Order No 12-B,
In that above-named accused, persons subject to and triable by the Military Tribunals, conspiring together
and confederating with one COMDR CRUZ, who is already deceased, during the period comprising the last
day s of November and 2 December 1967, in Bo. San Miguel, Tarlac, Tarlac, with intent to kill and all armed
with firearms and in band, did, then and
566
566
Court called a hearing on Sunday, August 26, on the question of whether with its me mbership of only
nine (9) Justices, it had a quorum to take co gnizance of the petition in view of the constitutional questions
involved . At that hearing, this Court
_______________
there, wilfully , unlawfully and feloniously take one CECILIO SUM AT, Barrio Captain of Motrico, La Paz,
Tarlac, from his house at said place and thereafter did then and there shoot him inflicting a gunshot wound
on his head, thus causing his death as a consequence.
That the qualify ing and generic aggravating circumstances of treachery, evident premeditation, use of
superior strength, with the aid of armed men, disguise, craft and motor vehicle were present in the
commission of the crime.
Sheet No. 5In Criminal Case No. MC-2-23 the charge sheet alleged violation of the Anti-Subversion Act,
SPECIFICATION I:
by force, violence, deceit, subversion and other illegal means for the purpose of placing such government
the accused, BENIGNO S. AQUINO, JR., in or about the month of April, 1969 or pri or and/or subsequent
by overt acts, conspiring, confederating with other leaders and/or members of said organization, give to
said organization or organizations through its leaders or officers the sum of P15,000.00 for the purpose
of using said money to stage an NPA-sponsored demonstration in Manila which was in fact carried out in
Congress, Malacanang, and in the US Embassy on 18 April 1969 for the purposes above-mentioned.
SPECIFICATION II:
the Communist Party of the Philippines and/or its military arms such as the
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VOL. 63, MAY 9, 1975
567
asked the parties to agree to seek from the Military Commission a postponement of petitioners trial the
following day. The purpose was to relieve the Court of the pressure of having to decide the question of
quorum without adequate time to do so.
_______________
Hukbong Mapagpalay a ng Bay an (HMB) and/or the New Peoples Army (NPA) consti tuting an organized
conspiracy to overthrow the Government of the Republic of the Philippines or the government of any of
its political subdivisions by force, violence, deceit, subversion and other illegal means for the purpose of
placing such government or political subdivision under the control and domination of an alien power, in
order to achieve the same, the accused, BENIGNO S. AQUINO, JR., in or about the period comprising the
early part of 1967 or prior and/or subsequent thereto, in Concepcion, Tarlac, did then and there knowingly
, wilfully , unlawfully and feloniously by overt acts, conspiring, confederating with other leaders and/or
members of said organization, give to one of them, the other accused BERNABE BUSCAYNO alias COMDR
DANTE of the HMB and/or NPA, one (1) caliber .45 pistol with magazine and ammunition for the purpose
of using the same against the duly constituted government of the Philippines.
SPECIFICATION III:
the accused, BENIGNO S. AQUINO, JR., in or about the month of August , 1967, or prior and/or subsequent
thereto, in Barrio San Francisco, Tarlac, Tarlac, did then and there knowingly , wilfully , unlawfully and
feloniously by overt acts, conspiring, confederating with other leaders and/or members of said
organization, give to one of them, the other accused BERNABE BUSCAYNO alias COMDR DANTE, two (2)
caliber .45 pistols in the house of Leonida Arceo for the purpose of using the said firearms against the duly
constituted government of the Philippines.
568
568
When the proceedings before the Military Co mmiss ion opened th e following day, however, petitioner
questioned the fairness of the trial and announced that he did not wish to participate in the proceedings
even as he discharged both his defense counsel of choice and his military defense counsel.
_______________
SPECIFICATION IV:
or political subdivision under the control and domination of an alien power, in order to achieve the same
the accused BENIGNO S. AQUINO, JR., in or about the month of October, 1969, or prior and/or subsequent
thereto in Barrio Alto, Hacienda Luisita, San Miguel, Tarlac, Tarlac, did then and there knowingly , wilfully
, unlawfully and feloniously by overt acts, conspi ring, confederating with other leaders and/or members
of said organization, give to COMDR ARTHUR GARCIA and JOSE BUSCAYNO alias COMDR JOE two (2)
armored vests and a pair of walkie-talkie for the purpose of using them against the duly constituted
government of the Philippines.
SPECIFICATIO N V:
or political subdivisions under the control and domination of an alien power, in order to achieve the same
the accused BENIGNO S. AQUINO, JR. on or about 1-2 November 1965, or prior and/or subsequent
thereto, in San Miguel, Tarlac, Tarlac, did then and there knowingly , wilfully , unlawfully and feloniously
by overt acts, conspiring, confederating with other leaders and/or members of said
569
VOL. 63, MAY 9, 1975
569
The proceedings were thereupon adjourned to another day. In the mea ntime, for th e petitioners
assurance, a Special Committee, composed of a retired. Justice of the Supreme Court, to be designated
by the Chief Justice, as Chairman, and four (4) me mbers to be designated respectively by petitioner, the
President of the Integrated Bar of the Philippines, the Secretary of Justice and the Secretary of National
Defense, was created to reinvestigate the charges against petitioner. The
_______________
organization, give to one of them COMDR ALIBASBAS through COMDR DANILO several firearms and
ammunition which were robbed and taken from the house of Manuel Rodriguez of Hacienda Rodriguez,
including a carbine with a telescopic sight, for the purpose of using the said firearms and ammunition
against the duly constituted government of the Philippines and in fact said firearms including the carbine
with a telescopic sight were recovered from COMDR ALIBASBAS and his group when they were killed at
Barrio Almendras, Concepcion, Tarlac.
SPECIFICATION VI:
the accused, BENIGNO S. AQUINO, JR., in or about the period comprising the y ear 1970 to 1971, or prior
and/or subsequent thereto, at 25 Times St ., Quezon City , did then and there knowingly , wilfully ,
unlawfully and feloniously by overt acts, conspiring, confederating with other leaders and/or members of
said organization, give and provide shelter and/or medical treatment to wound ed/sick
officers/leaders/members of the HMB/NPA, to wit:
1. ROBERTO SANTOS alias COMDR FELM AN
2. BENJAMIN SANGU YO alias COMDR PU SA
3. COMDR JU ANING RIVER A alias COMDR JUANING
4. FERNANDO BORJA alias COMDR FER
5. SIMEON SANGKAP alias COMDR FRED
6. COMDR TUC
7. PEPITO LOPEZ alias BOY BATOC
570
570
Secretaries of Justice and National Defense designated their representatives but the petitioner refused to
name his. The Chief Justice asked former Justice J. B. L. Reyes but the latter declined, as he also declined
in his capacity as President of the IBP to designate a represen tative to the Committee. As a result, with
only two of its me mb er s designated, the Special Committee has not been able to function.
On Septemb er 4, 1973, a supp lemental petition alle ging the creation of the Special Committee and
questioning the legality of its creation was filed. The Ch ief Justice of the Supreme Court and the Secretar
y of Justice were included as respondents. Subsequently, the Court resolved to require the respondents
to file their answer and on August 21, 1974, within the extended period granted by the Court,
respondents, with the exception of the Chief Justice, filed their answer to the supplemental petition.
Thereafter, petitioner was required to file a reply and was granted additional time after the lapse of the
original period, but instead of doing so, petitioner asked for the admission of a second supplemental p
etition challenging the continued enforcement of martial la w in the Philippines, in the light of Presidential
state ments to the effect that with the coming into force of the new Constitution on January 17, 1973,
martial law
______________
8. RODOLFO RAMOS alias COMDR RAMI R alias COMDR RUDY
9. BOY BULDONG alias BOY PITCHO
10. OSCAR PACHECO alias ROY
Sheet No. 6And in Criminal Case No. MC-2-24 the charge sheet alleged violation of the Anti-Subversion
Act,
the accused BENIGNO S. AQUINO, JR., in or about the month of December, 1970, or prior and/or
subsequent
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VOL. 63, MAY 9, 1975
571
was technically and legally lifted. To this petition respondents answered. Thereafter, the parties
submitted their respective memoranda in lieu of oral argument as per Resolution of this Court on January
14, 1975.4
On March 24, 1975, petitioner filed an Urgent Motion for Issuance of Temporary Restrain ing Order
Against Military Commission No. 2; praying that said Commission be prohibited from proceeding with
the perpetuation of testimony under its Order dated March 10, 19 75, the same being illegal, until further
orders from the Supreme Court.
On March 31, 1975, respond ents filed their Comment to petitioners aforementioned urgent mot ion,
which mot ion and other related incidents were set for hearing on April 14, 1975 at 10:00 a.m., as per
Resolu tion of this Co urt on April 8, 1975.
Meanwhile, or on April 1, 1975, this Court issued a Resolution, stating that for lack of a necessary
quorum, it could not act on petitioners Urgent Motion for Issuance of Temporary Restraining Order
Against Military Commission No. 2, in asmuch as this case involv ed a constitutional question.
On April 7, 1975, petitioner filed a Manifestation stating, among others, that the Urgent Motion did
not and does not involve a constitutional question, for reasons stated therein.
On April 12, 1975, respond ents filed th eir Reply to Petitioners Manifestation, followed by
Respondents Manifestation filed on April 14, 1975, attaching thereto fourteen (14) sworn statements of
witnesses whose testimonies are sought to be perpetuated.
On April 14, 1975, th is Court also issued a restraining order against respondent Militar y Co mmission No.
2, restraining it from further proceeding with the perpetuation of testimony under its Order dated March
IT), 1975 until the ma tter is heard
_______________
by overt acts, conspiring, confederating with other leaders and/or members of said organization, give to
BENJAMI N SA N GUYO alias COMD R PUSA and his NPA comp anions including PC LT VICTOR CORPUS,
cash money in the amount of P500.00 for the purpose of renting a car to be used in raiding the Philippine
Military Academy Armory, Baguio City, of firearms and ammunition, which was in fact carried out on 29
December 1970.
4 Respondents Memorandum dated March 10, 1975, pp. 2 to 12.
572
572
and further orders are issued.
When this case was called for hearing, petitioners counsel presented to this Court a motion to withdraw
the petition, as well as all other pending matters and/or incidents in connection therewith. Respondents
counsil interposed objections to the granting of th e aforesaid motion to withdraw.
After the hearing, this Court Resolved: (a) to require the Solicitor General to furnish the Court as well as
th e petitioner and the latters counsel, with copies of the transcript of all the stenographic notes taken
at th e hearing before the Military Commission No. 2 for the perpetuation of the testimony of the
witnesses for the prosecution in various criminal cases filed against herein petitioner, within five (5) days
from today; (b) to request th e Solicitor General and the AFP Judge Advocate General to make the
necessary arrangements for the petitioner to confer with his counsel on matt ers connected with the
aforementioned motion to withdraw; (c) to allow counsel for the petitioner, if th ey so desire, to file a
manifestation in a mplification of the aforesaid mo tion to withdraw, within ten (10) days from the date
they confer with the petitioner, and thereafter to allow the Solicitor General to file a counter-
manifestation within ten (10) days from receipt of a copy thereof; and (d) to consider th e case submitted
for decision after submission by both parties of their respective pleadings on the mo tion to withdraw.
Subsequently, the parties manifested their compliance.
Acting on petitioners motion to withdraw the petitions and mo tions in this case, and there being only
three (3) Justices (Justices Fernando, Teehankee an d Muoz Palma) who voted in favor of granting such
withdrawal, whereas seven (7) Justices (Justices Castro, Barredo, Antonio, Esguerra, Aquino, Concepcion
and Martin) voted for its denial, the said motion to withdraw is deemed denied (Section 11, Rule 56 of
the Revised Rules of Court). The Chief Justice has inhibited himself, having been made respondent by
petitioner in his Supplemental Petitions.5
The Justices who voted to deny the withdrawal are of the
______________
5 See Rollo, Supplemental Petition, pp. 77-130; and Second Supplemental Petition, pp. 185-244.
573
VOL. 63, MAY 9, 1975
573
opinion that since all matters in issue in this case have already been submitted for resolution, and they
are of paramount public interest, it is imp erative that the questions raised by petitioner on the
constitutionality and legality of proceedings against civilians in the mili tary commissions, pursuant to
pertinent General Orders, Presid ential Decrees and Letters of Instruction, should be definitely resolved.
In regard to the merits, We Resolve by a vote of eight (8) Justices to dismiss the main as well as the
supplemental petitions.5*
II MILITARY COMMISSIONS
We hold that the respond ent Military Commission No. 2 has been lawfully constituted and validly vested
with jurisdiction to hear the cases against civilians, including the petitioner.
1. The Court has previously declared that the procla mation of Martial Law (Proclamati on No. 1081) on
September 21, 1972, by the President of the Philippines is valid and constitutional and that its continuance
is justified by the danger posed to the public safety.6
2. To preserve the safety of the nation in times of national peril, the President of the Philippines
necessarily possesses broad authority co mpatible with the imperative requirements of the emergency.
On the basis of this, he has authorized in General Order No. 8 (September 27, 1972) the Chief of Staff,
Armed Forces of the Philippines, to create mi litary tribunals to try and decide cases of military personnel
and such other cases as may be referred to them. In General Order No. 12 (September 30, 1972), the
military tribunals were vested with
______________
5* Justices Castro, Barredo, Makasiar, Antonio, Esguerra, Aquino, Concepcion Jr. and Martin.
6 Benigno S. Aquino, Jr., et al. v. Juan Ponce Enrile, et al., G.R. No. L-35546; Roces, et al. v. Secretary of
National Defense, L-35538; Diokno, et al. v. Secretary of National Defense, L-35539; Soliven, et al. v.
Secretary of National Defense, L-35540; Doronila, et al. v. Secretary of National Defense, L-35567; and
Rondon, et al. v. Secretary of National Defense, L-35573, all promulgated on September 17, 1974, 59 SCRA
183-651.
574
574
jurisdiction exclusive of the civil courts, among others, over crimes against public order, violations of
the Anti-Subversion Act, violations of the laws on firearms, and other crimes which, in the face of the
emergency, are directly related to the quellin g of the rebellion and preservation of the safety and security
of the Republic. In order to ensure a more orderly administration of justice in the cases triable by the said
mi litary tribunals, Presidential Decree No. 39 was promulgated on November 7, 1972, providing for the
Rules Governing the Creation, Composition, Jurisdiction, Procedure and Other Matters Relevant to
Military Tribunals. These measures he had the authority to promulgate, since this Court recognized that
the incumbent President, und er paragraphs 1 and 2 of Section 3 of Article XVII of the new Constitution,
had the authority 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 the political and social liberties
of the people and to the institution of reforms to prevent the resurgence of the rebellion or insurrection
or secession or the threat thereof . . .7 Pursuant to the aforesaid Section 3 [1] and [2] of Artic le XVII of
the Constitution, General Orders No. 8, dated Sep temb er 27, 1972 (authorizing the creation of mi litary
tribunals), No. 12, dated September 30, 1972 (defining the jurisdiction of mi litary tribunals and providing
for the transfer from the civil courts to mi litary tribunals of cases involving subversion, seditio n,
insurrection or rebellion, etc.), and No. 39, dated November 7, 1972, as amended (prescribing the
procedures before military tribunals), are now part of the law of the land.8
3. Petitioner nevertheless insists that he being a civilian, his trial by a military commission deprives him of
his right to due process, since in his view the due process guaranteed by the Constitution to persons
accused of ordinary crimes means judicial process. This argument ignores the reality of the rebellion
and the existence of martial law. It is, of course,
_______________
7 Benigno S. Aquino, Jr., et al. v. Commission on Elections, et al., G. R. No. L-40004, January 31, 1975.
8 See also De Chavez v. Zobel, L-28609 and Dimaala, et al. v. Zobel, L-28610, both promulgated January
17, 1974. These two cases consider Presidential Decree No. 27 as pa rt and parcel of the law of the land
according to the revised Constitution itself.
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VOL. 63, MAY 9, 1975
575
essential that in a martial law situation, th e martial law administrator must have ample and sufficient
means to quell the rebellion and restore civil order. Prompt and effective trial and punishment of
offenders have been considered as necessary in a state of martial law, as a mere power of detention may
be wholly in adequate for th e exigency. 9 It need hardly be remarked that martial law lawfully declared,
observed Winthrop, creates an exception to the general rule of exclusive subjection to th e civil
jurisdiction, and renders offences against the laws of war, as well as those of a civil character, triable, at
the discretion of the commander, (as governed by a consideration for the public interests and the due
administration of justice) by military tribunals.10
Indeed, it has been said that in time of overpowering necessity, Public danger warrants the substitution
of executive process for judicial process.11 According to Schwartz, The immunity of civilians from
military jurisdiction must, however, give way in areas governed by martial law. When it is absolu tely
imperative for public safety, legal processes can be sup erseded and mi lita ry tribunals authorized to
exercise the jurisdiction normally vested in courts.12
In any case, We cannot close Our eyes to the fact that the continued existence of th ese mi litary tribunals
and th e exercise by them of jurisdiction over civilians during the period of
______________
9 Military commissions in American practice are the traditional courts during the periods of martial rule
or military government. (Fairman, The Law of Martial Rule, 1943 Ed., p. 262). Its proceedings derives
their sole authority from the existence of actual rebellion, and the duty of doing whatever may be
necessary to quell it, and to restore peace and order. (The King v. Allen [1912] 2 Irish Rep. 241.) According
to Fairman, a military commission is a tribunal established to try persons not subject to our military law,
charged with violations of war or, in places subject to military government or martial rule, with offenses
either of civil nature or against the regulations of the military authorities. (Fairman, supra, p. 272.) One
of the justifications given for the trial of civilians by military commissions during an insurrection had been
to try the accused more quickly with a view to stopping mo re effectively the progress of the insurrection.
(Ibid., citing Finlasons Rep. 83 ff., p. 267.)
10 Winthrop, Military Law and Precedents, Vols. 1 and 2, p. 830.
11 Moyer v. Peabody, 212 U.S. 78, 53 L. ed. 411, 417.
12 Schwartz, Constitutional Law, p. 160.
576
576
martial law are within the contemp la tion and intendment of Section 3, paragraphs of Article XVII of the
Constitution. These are tribunals of special and restricted jurisdiction created under the stress of an
emergency and national security. This is the only logical way to construe said Section 3, paragraph 2 of
Article XVII of th e Constitution, in relation to General Order Nos. 8, 12 and 39, in the context of
contemporary history and the circumstan ces attendant to the framing of the new charter.
4. When it has been establish ed that martial law is in force, the responsibility for all acts done thereunder
must be taken by the authorities administering it.13 It is a serious responsibility which merits the
cooperation of all in the collective desire for the restoration of civil order. In the case at bar, petitioner is
charged with having conspired with certain military leaders of the communist rebellion to overthrow the
government, furnishing them arms and other instruments to further the uprising. There is no question
that the continuing communist rebellion was one of the grav e threats to th e Republic that brought about
the martial law situation. Under General Order No. 12, jurisdiction over this offense has been vested
exclusively upon military tribunals. It cannot be said th at petitioner has been singled out for trial for th is
offense before the military c o mmission. Pursuant to General Order No. 12, all criminal cases involvin g
subver sion , sed itio n, insu rrection or rebellion or those committed in furtherance of, on the occasion
of, incident to or in connection with the commission of said crimes which were pending in the civil courts
were ordered transferred to the militar y tribunals. This jurisdiction of the tribunal, therefore, operates
equally on all persons in like circumstances.
5 . Neith er are W e imp ressed with petitioners argument that only thru a judicial proceeding before the
regular courts can his right to due process be preserved. 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 tribun al, adequately me et
the due process requirement. Due process of law does not necessarily
_______________
13 Stanton v. Godfrey, (1851), 1 Searle, Supreme Court of Cape of Good Hope, cited in Fairman, Law of
Martial Rule, pp. 132-133.
577
VOL. 63, MAY 9, 1975
577
mean a judicial proceeding in the regular courts.14 The guarantee of due process, viewed in its procedural
aspect, requires no particular form of procedure. It implies due notice to the individual of the proceedings,
an op portunity to defend himself and the problem of the propriety of the deprivations, under the
circumstances presented, must be resolved in a manner consistent with essential fairness.15 It means
essentially a fair and impartial trial and reasonable
______________
14 Due process of law does not necessarily mean a judicial proceedingthe proceeding may be adapted
to the nature of casebut it does necessitate an opportunity for a hearing and a defense. Ballard v.
Hunter, 1907, 204 U.S. 241, 255, 27 S. Ct. 261, 51 L. ed. 461; Simon v. Craft, 1901, 182 U.S. 427, 437, 21 S.
Ct. 836, 45 L. ed. 1165; In re Bry ant, 1885, 3 Mackey 489. See Logue v. Fenning, 1907, 29 App. D.C. 519,
525; cf. Matter of Lambert, 1901, 134 Cal. 626, 66 P. 851, 55 L.R.A. 856, 86 Am. St. Rep. 296; In re Wellman,
1896, 3 Kan. App. 100, 45 P. 726; State v. Billings, 1894, 55 Minn. 467, 57 N.W. 206, 794, 43 Am. St. Rep.
525; Allgor v. New Jersey State Hospital, 1912, 80 N.J. Eq. 386, 84 A. 711; In re Allen, 1909, 82 Vt. 365, 73
A. 1078, 26 L.R.A., N.S. 232. (Barry v. Hall, 98 F. 2d 222.)
Due process is not necessarily judicial . . . (Mendoza Espuelas v. Provincial Warden of Bohol, G.R. No. L-
13223, May 30, 1960, 108 Phil. 353; Insular Govt. v. Ling Su Fan, 15 Phil. 58; Forbes v. Tiaco, 16 Phil. 534;
Tan Te v. Bell, 27 Phil. 354; De Leon v. Director of Prisons, 31 Phil. 60; U.S. v. Gomez Jesus, 31 Phil. 218;
U.S. v. Ignacio, 33 Phil. 202; Cornejo v. Gabriel, 41 Phil. 188; and People v. Ponce de Leon, 56 Phil. 386.)
Under ordinary circumstances the constitutional guaranty as to due process of law implies a formal
judicial proceeding. In fact, most of the definitions refer to judicial proceedings as an element of due
process of law. Neverthe less, it is se ttled that such proceedings are not an indispensable requisite in all
cases. It is accordingly said that the term proceeding means such an exercise of the powers of
government as the settled maxims of the law permit and sanction, under such safeguards for the
protection of individual rights as these maxims prescribe for the class of cases to which the one in question
belongs. Questions may arise which may be best determined otherwise than by ordinary process of
judicial investigation without violating the constitutional provision as to due process of law. In many
matters the tribunal requirement of due process may be met by a board or commission, or an executive
or administrative officer or tribunal, or notary public, or even a private body . (16 Am. Jur. 2d Sec. 581.)
15 Ibid., Sec. 548.

578
578
opportunity for the preparation of defense.16
Here, the procedure before the Military Commission, as prescribed in Presidential Decree No. 39, assures
observance of the fundamental requisites of procedural due process, due notice, an essentially fair and
impartial trial and reasonable opportunity for the preparation of the defense.17
______________
16 Arnault v. Pecson, 87 Phil. 418, 422.
17 Thus, among its provisions are:
b. During Trial.
*** *** *** ***
(5)Rights of Accused.The accused shall be entitled:
(a) To challenge for cause any member of the commission based on any of the grounds provided in the
Manual for Courts-Martial.
(b) To receive copy of the charges at least five (5) day s in advance of the date of initial hearing.
(c) To be present at the arraignment, when he enters a plea of guilty and at the pronouncement of
judgment of conviction. Where the accused is in custody or charged with a capital offense, he shall be
entitled to be present at all stages of the trial. In cases where there is allegation of conspiracy and one or
more accused are available for trial and others are not, trial may proceed against all, provided, that the
indictment shall have been published at least once a week for two consecutive weeks in any newspapers
of general circulation and a copy of a notice of trial shall have been served on the accused or on his next
of kin or at his last known residence or business address with a person of sufficient discretion to receive
the same.
(d) To be represented during the trial by defense counsel appointed by the convening authority , or
counsel of his own choice if practicable or to conduct his own defense. In the event that he is allowed a
counsel of his own c hoice, he may elect to retain or excuse the appointed defense counsel.
(e) To testify on his own behalf and present evidence in his defense, and cross-examine any witness wh o
personally appears before the commission.
(f) To have the substance of the charges and specifications, the proceedings and any documentary
evidence translated when he is unable to understand them.
(g) To have a copy of the record of trial within a reasonable time after trial.
(6)Law Member.The ruling of the law member on the admissibility of evidence and on all interlocutory
questions (i.e., all questions other than the findings of guilt or innocence and
579
VOL. 63, MAY 9, 1975
579
6. It is, however, asserted th at petitioners trial before the military co mmission will not be fair and
impartial, as the President had already prejudged petitioners cases and the mil itary trib un al is a mere
creatio n of the President, and subject to his control and direction. W e cannot, however, indulge in
unjustified assu mp tions. Prejudice cannot be presumed, especially if weighed against the great
confidence and trust reposed by the people upon the President and the latters legal obligation under his
o ath to do justice to every man. Nor is it justifiable to con ceive, much less presume, that the me mb
ers of the military commission, the Chief of Staff of the Armed Forces of the Philippines, the Bo ard of
Review and the Secretary of National Defense, with their co rresp ond ing staff judge advocates, as
reviewing authorities, th rough whom petitioners hypothetical convictio n would be reviewed before
reaching the President, would all be insensitive to the great principles of justice and violate their
respective obligations to act fairly and impartially in the premises.
______________
sentence) other than challenges, motion for a finding of not guilty or sanity of the accused shall be final.
(7)Evidence.(a) The rules set forth in the Manual for Courts-Martial shall normally be applied. Where
the strict application of said rules is not feasible, the Commission may modify the same consistent with
the requirements of justice. In such event, the commission should accord the accused or his counsel and
the trial counsel reasonable notice before apply ing the modified rules. Nothing under this rule should,
however, allow the commission to admit hearsay evidence nor to convict the accused without proof bey
ond reasonable doubt.
(8)Trial Proper Procedure.After the period for challenges and the commission having been empanelled,
the trial shall be conducted substantially as follows unless modified by the commission pursuant to (7) (a)
above:
(a) Each charge and specification shall be read, or its substance stated, in open court.
(b) The presiding member shall ask each accused whether he pleads Guilty or Not Guilty. At this stage
the accused may move to quash the charge under the same grounds, procedure, and conditions
prescribed in the Revised Rules of Court of the Philippines, except that the motion shall only be oral.
(c) The prosecution shall make its opening statement.
(d) The witnesses and other evidence for the prosecution
580
580
This assumption must be made because innocence, not wrongdoing, is to be presumed. The presumption
of innocence includes that of good faith, fair dealing and honesty. This presumption is accorded to every
official of the land in the performance of his public duty. There is no reason why such presumption cannot
be accorded to the President of the Philippines upon whom the people during this period has confided
powers and responsibilities which are of a very high and delicate nature. The preservation of the rights
guaranteed by the Constitution rests at bottom exactly where the defense of the nation rests: in the good
sense and good will of the officials upon whom the Constitution has placed the responsibility of ensuring
the safety of th e nation in times of national peril.
______________
shall be heard or presented. At the close of the case for the prosecution, the commission, may on motion
of the defense for a finding of not guilty , consider and rule whether the evidence before the commission
su pports the charges against the accused. The commission may grant, deny or defer action on such
motion.
(e) The defense may make an opening statement prior to presenting its case.
(f) The witness and other evidence for the defense shall be heard or presented. Thereafter the prosecution
and defense shall introduce evidence in rebuttal.
(g) The prosecutor and thereafter the defense shall deliver their respective summations.
(h) The commission shall thereafter close and deliberate on the findings and sentence and shall not
adjourn until it has arrived at and announced the findings and sentence.
(i)Manner of Voting and Number of Votes Required.Voting on the findings and sentence shall be by
secret written ballot. The minimum nu mber of votes required for a conviction or sentence shall be as
follows:
1. To convict:
a. For an offense carrying a mandatory death penaltyfive (5) members.
b. For other offensesTwo-thirds of the members present at the time the vote is taken.
2. To sentence:
a. DeathFive (5) members.
b. Other penaltyTwo-thirds of the members present at the time the vote is taken.
581
VOL. 63, MAY 9, 1975
581
III ADMINISTRATIVE ORDER NO. 355
We also find that petitioners claim that Administrative Order No. 355 actually strips him of his right to
due process is negated by the basic purpose and the clear provisions of said Administrative Order. It was
precisely because of petitioners complaint that he was denied the opportunity to be heard in the
preliminary investigation of his charges that the President
______________
(9)Sentence.The sentence shall be commensurate with the offense committed. A military commission
shall apply the penalties prescribed in martial law orders or decrees and in their absence, the penalties
prescribed by applicable laws. In the absence of both, the penalties prescribed by the Articles of War and
Manual for Courts-Martial shall be the guide. Conviction automatically carries with it dismissal from the
service if the accused is a commissioned officer, government official or employ ee, and dishonorable
discharge if an enlisted person of the Armed Fo rces of the Philippines, unless otherwise d ecreed in the
judgment.
(10)Record.A military commission is a court of record. A verbatim record of its proceedings shall be
made. It shall be prepared by the trial counsel under the direction of the commission. Such record,
certified by the presiding member of the commissio n or his successor shall be delivered of transmitted
to the convening authority as soon as possible after trial.
(11)Contempt.A military commission ma y punish direct contempt with confinement for not more than
one (1) month and indirect contempt with confinement for as long as the person fails to comply or obey
a lawful order of the commission.
c.After Trial.
(1)Action by Convening Authority.Every record of trial by military commission shall be forwarded to the
Chief of Staff, Armed Forces of the Philippines for action. If the sentence imposed by the military
commission is death or imprisonment for twenty (20) y ears and one (1) day or more, the Chief of Staff,
Armed Forces of the Philippines shall refer the record of trial to a Board of Review for review. For this
purpose, he shall constitute such Boards of Review as may be necessary . The Board of Review shall
transmit its opinion together with the record of trial to the Chief of Staff, Armed Forces of the
582
582
created a Special Committee to reinvestigate the charges filed against him in the milita ry commission.
The Co mmittee is to be composed of a retired Justice of the Supreme Court, to be designated by the Chief
Justice, as Chairman, and four (4) members to be designated respectively by the accused, the President
of the Integrated Bar, the Secretary of Justice and the Secretary of National Defense, all of whom,
according to Administrative Order No. 355 must be learned in the law, reputed for probity, integrity,
impartiality, in corruptibility and fairness . . . It is intended that the Committee should conduct the
investigation with utmost fairness, Impartiality and objectivity ensuring to the accused his constitutional
right to due process, to determine whether there is reasonable ground to believe that the offenses
charged were in fact committed and the accused is probably guilty thereof.
Petitioner, however, objected by challenging in his supplemental petition before this Court the validity of
Administrative Order No. 355, on the pretense that by submitting to the jurisdiction of the Special Commi
ttee he would be waiving his right to cross-examination because Presidential Decree No. 77, which applies
to the proceedings of the Special Committee, has done away with cross-examinatio n in preliminary
investigation.
The in firmity of this contention is apparent from the fact that the Committee shall have all the powers
vested by law in
_______________
Philippines for action.
(2)Execution of Sentence.Except as otherwise herein provided no sentence of a military commission

shall be executed unless the same is approved and ordered executed by the Chief of Staff, Armed Forces
of the Philippines. Where the sentence imposed by a military commission is death or if the Chief of Staff
recommends that a penalty of death should be imposed, in a case where the sentence imposed by a
military commission i s less than death, the record of trial shall be forwarded to the President through the
Secretary of National Defense, for confirmation or approval. No sentence of death shall be executed
unless ordered executed by the President. In any case, the President shall have the power to reverse,
confirm, increase the penalty imposed, or otherwise modify any decision of the military commission.
(Pres. Decree No. 39, Rules Governing the Creation, Composition, Jurisdiction, Procedure, and other
matters Relevant to Military Tribunals.)
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VOL. 63, MAY 9, 1975
583
officials authorized to conduct preliminary investigations. We have held as implic it in the power of the
investigating Fiscal or Judge in the discharge of his grave responsibility of ascertaining th e existence of
probable cause, is his right to cross-examine the witnesses since cross-examination whether by the judge
or by the prosecution supplies the gap by permitting an instant contrast of falsehoods and opposing half-
truths, mixed with elements of truth, from which the examining judge or officer is better able to form a
correct synthesis of the real facts.18
In the case at bar, petitioners representativ e in the Committee having been conferred with all the
powers of officials authorized to condu ct preliminary investigations, is, therefore, expressly authorized
by Section l[c] of Presidential Decree No. 77 to subpoena the complainant and his witnesses and
propound clarificatory questions. Viewed in the context of Our ruling in Abrera v. Muoz,19 this implies
the authority of his representative in the Committee to cross-examine the witnesses of the prosecution,
in order to reach an intelligent and correct conclusion on the existence of probable cause.
IV PRELIMINARY INVESTIGATION
Equally untenable is petitioners contention that his constitutional right to due pro cess has been impaired
when the anti-subversion charges filed against him with the militar y commission were not investigated
preliminarily in accordance with Section 5 of th e Anti-Subversion Act, but in the manner prescribed by
Presidential Decree No. 39, as a mended by Presidential Decree No. 77. It is asserted that under the
aforesaid Presidential Decrees, he is precluded from cross-examining the prosecution witnesses and from
being assisted by counsel. Contrary to petitioners contention, Section l[b] of Presidential Decree No. 77
specifically gr ants him the right to counsel, and Presiden tial Decree No. 328 amended Presidential Decree
No. 39, precisely to secure th e substantial rights of the accused by granting him the right to counsel during
_______________
18 Abrera v. Judge Muoz, et al., 108 Phil. 1124, 1128.
19 Supra.
584
584

preliminary investigation. Under Section 5 of Republic Act No. 1700, the accused shall have the right to
cross-examine witnesses against him and in case the offense is penalized by prision mayor to death, the
preliminary investigation shall be conducted by the proper Court of First Instance. As to whether or not
the denial to an accused of an opportunity to cross-examine the witnesses against hi m in the preli minary
investigation constitutes an infringement of his right to due process, We have to advert to certain basic
principles. The Constitution does not require the holding of preliminar y investigations. The right ex ists
only, if and when created by statute.20 It is not an essential part of due process of law.21 The absence
thereof do es not impair the validity of a criminal information or affect the jurisdictio n of the court over
th e case.22 As a creation of the statute it can, therefore, be modified or amended by law.
It is also evident that there is no curtail ment of the constitutional right of an accused person when he is
not given the opportunity to cross-examine the witnesses presented against him in the preliminary
investigation before his arrest, this being a matter that depend s on the sound discretion of the Judge or
investigating officer concerned.23
Speaking for the Court, Justice Tuason, in Bustos v. Lucero,24 discussed the matter extensively, thus:
As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from t he procedural law which provides or regulates
the steps by which one who commits a crime is to be punished. (22 C.J.S., 49.) Preliminary investigation is
eminently and essentially remedial; it is the first step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidencewhich is the mode and manner
of proving the competent facts and circumstances on which a party relies to establish the fact in
______________
20 San Diego v. Hernandez, 24 SCRA 109, 114.
21 Luna v. Plana, 26 SCRA 310, 321, citing People v. Olandag 92 Phil. 286, 289.
22 Zacarias v. Cruz, 30 SCRA 728.
23 Bustos v. Lucero, 81 Phil. 640; Dequito v. Arellano, 81 Phil. 128; Abrera v. Muoz, 108 Phil. 1124.
24 Supra, pp. 650-651.
585
VOL. 63, MAY 9, 1975
585
dispute in judicial proceedingsis identified with and forms part of the method by which, in private law,
rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal
procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) The
entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11
of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in
these Rules.
In Beazell vs. Ohio, 269 U.S., 167, 70 Law. ed., 216, the United States Supreme Court said:
Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may
be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390,
1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.S.
221, 228, 232, 27 L. ed., 507, 508, 510, 2 Sup. Ct. Rep., 443. And there may be procedural changes which
operate to deny to the accused a defense available under the laws in force at the time of the commission
of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U.S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443; Thompson
vs. Utah, 170 U.S.; 343; 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is now well settled that statutory
changes in the mode of trial or the rules of evidence, which do not deprive the accused of a defense and
which operate only in a limited and unsubstantial manner to his disadvantage, are not prohibited. A
statute which, after indictment, enlarges the class of persons who may be witnesses at the trial, by
removing the disqualification of persons convicted of felony , is not an ex post facto law. Hopt vs. Utah,
110 U.S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which changes the
rules of evidence after the indictment so as to render admissible against the accused evidence previously
held inadmissible, Thompson vs. Missouri, 171 U.S., 380, 43 L. ed., 204, 18 Sup. Ct. Rep. 922; or which
changes the place of trial, Gut vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which abolishes a court for
hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri, 152 U.S., 377, 382, 38
L. ed., 485, 487, 14 Sup. Ct. Rep., 570.
Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary
investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance
as to offend against the constitutional inhibition. As we have said in the beginning, preliminary
investigation is not an
586
586
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.
In rejecting the conten tion of the political offenders accused in the Peoples Court that their constitutional
right to equal protection of the laws was impaired because they were denied preliminary examination
and inv estigation, whereas the others who may be accused of the same crimes in the Court of First
Instance shall be entitled thereto, this Court said:
(2) Section 22 in deny ing preliminary investigation to persons accused before the Peoples Court is
justified by the conditions prevailing when the law was enacted. In view of the great number of prisoners
then under detention and the length of time and amount of labor that would be consumed if so many
prisoners were allowed the right to have preliminary investigation, considered with the necessity of
disposing of these cases at the earliest possible dates in the interest of the public and of the accused
themselves, it was not an unwise measure which dispensed with such investigation in such cases.
Preliminary investigation, it must be remembered, is not a fundamental right guaranteed by the
Constitution. For the rest, the constitutional prohibition against discrimination among defendants placed
in the same situation and condition is not infringed.25
It was realized that the procedure prescribed in Republic Act No. 5180 granting the complainant and
respondent in a preliminary investigation the right to cross-examine each other and their witnesses was
time consuming and not conducive to the expeditious ad ministration of justice. Hence, it was found
necessary in Presidential Decree No. 77 to simplify the procedure of preliminary investig ation to conform
to it s summary character, by eliminating the cross-examination by the contending parties of th eir
respective witnesses which in the past had made the proceeding the occasion for the full and exhaustive
display of parties evidence. The procedure prescribed in the aforecited decrees appears justified by the
necessity of disposing cases during martial la w, especially those affecting national security, at the earliest
date. On the basis of th e aforestated settled prin cip les, th e curtailment of the right of an accused to
cross-examine the witnesses against him in the preliminary investig ation does not i mpair an y
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25 People v. Carlos, 78 Phil. 535, 542-543.
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VOL. 63, MAY 9, 1975
587
constitutional right. It may be relevant to note that recently in Litton, et al. v. Castillo, et al.,26 this Curt
denied for lack of merit a petit i on challenging the valid ity o f Presid en tial Decree No. 77 issued on
December 6, 1972 , on the ground that aforesaid decree now forms part of the law of th e land.
V PERPETUATION OF TESTIMONY
Petitioner claims that the order of the Military Commission for the perpetuation of the testimony of
prosecution witnesses is void because no copy of the petition was previously served on him. He asserts
that, as a consequence, he was not given the opportunity to contest the propriety of the taking of the
deposition of the witnesses. It mu st be noted that petitioner does not dispute respondents claim that on
March 14, 1975, he knew of the order allowing th e taking of the deposition of prosecution witnesses on
March 31, to continue th rough April 1 to 4, 1975.
The provisions of Presidential Decree No. 328, dated October 31, 1973, for the conditional examination
of prosecution witnesses before trial, is similar to the provisions of Section 7 of Rule 119 of the Revised
Rules of Cour t. Pres idential Decree No. 328 provides:
Where, upon proper application, it shall satisfactorily appear to the military tribunal before which a case
is pending, that a witness for the prosecution or the defense is too sick or infirm to appear at the trial, or
has to leave the Philippines with no definite date of returning thereto, or where delay in the taking of its
testimony may result in the failure of justice or adversely affect national security , the witness may
forthwith be examined and his deposition immediately taken, such examination to be by question and
answer, in the presence of the other party , or even in the latters absence provided that reasonable notice
to attend the examination or the taking of the deposition has been nerved on him, and will be conducted
in the same manner as an examination, at the trial, in which latter event the failure or refusal to attend
the examination or the taking of the deposition shall be considered a waiver. (Italics supplied.)
Section 7 of Rule 119 of the Revised Rules provides:
______________
26 L-35992, February 25, 1975.
588
588
Deposition of witness for the prosecution.Where, however, it shall satisfactorily appear that the
witness cannot procure bail, or is too sick or infirm to appear at the trial, as directed by the order of the
court, or has to leave the Philippines with no definite date of returning thereto, he may forthwith be
conditionally examined or his deposition immediately taken. Such examination or deposition must be by
question and answer, in the presence of the defendant or after reasonable notice to attend the
examination or the taking of the deposition has been served on him, and will be conducted in the same
manner as an examination at the trial. Failure or refusal on the part of the defendant to attend the
examination or the taking of the deposition after notice hereinbefore provided, shall be considered a
waiver. The statement or deposition of the witness thus taken may be admitted in behalf of or against the
defendant. His testimony taken, the witness must thereupon be discharged, if he has been detained.
The foregoing was taken substantially from Section 7 of Rule 115 of the old Rules of Court, with the
difference, among others, that the phrase or after one hour notice in the old Rules of Court has been
changed to or after reasonable notice in the Revised Rules of Co urt.
In Elago v. People,27 this Court, in rej ecting the contention that no written motion was filed by the
prosecuting attorney for the taking of the depositions and that less than one hour notice has been given
the defendant, held that the one-hour notice mentioned in Section, 7, Rule 115, of the Rules of Court,
was intended by law mainly to give the defendant time to attend the taking of a deposition and not to
prepare for the taking thereof because in reality there is no need for preparation. It is not a trial where
the defendant has to introduce his evid ence. It is only taking do wn the state ments of the witnesses for
the prosecu tion with opportunity on the part of the defendant to cross-examine them.
The thrust of Elago is that the order of the court authorizing the taking of the deposition of the witnesses
of the prosecution and fixing the date and time thereof is the one that must be served on the accused
within a reasonable time prior to that fixed for the examination of the witnesses so that the accused may
be present and cross-examine the witness.
On this point of the ti me given the defendant to attend the taking of the deposition, Professor W igmore
has the following to say:
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27 84 Phil. 643.
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VOL. 63, MAY 9, 1975
589
The opportunity of cross-examination involves two elements:
(1)Notice to the opponent that the deposition is to be taken at the time and place specified, and
(2) A sufficient interval of time to prepare for examination and to reach the place.
* * * * *
(2) The requirements as to the interval of time are now every where regulated by statute * * *; the rulings
in regard to the sufficiency of time are thus so dependent on the interpretation of the detailed
prescriptions of the local statutes that it would be impracticable to examine them here. But whether or
not the time allowed was supposedly insufficient or was precisely the time required by statute, the actual
attendance of the party obviate any objection upon the ground of insufficiency , because then the party
has actually had that opportunity of cross-examination * * * for the sole sake of which the notice was
required.28
We, therefore, hold that the taking of the testimony or deposition was proper and valid.
VI WAIVER OF PETITIONERS PRESENCE
There is conflict among the authorities as to whether an accused can waive his right to be present at his
trial. Some courts have regarded the presence of the accused at his trial for felony as a jurisdictional requ
irement, which cannot be waived.29 Many others do not accept this view.30 In defense of the first view,
it has been stated that the public has an interest in the life and liberty of an accused and th at which the
law considers essential in a trial cannot be waived by the accused.31 In support of the latter view, it has
been argued that the right is essentially for the benefit of the accused,32 and that since the accused, by
pleading guilty, can waive any trial at all, he
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28 Wigmore on Evidence, 3rd Ed., Vol. V, pp. 60-61, cited in Elago v. People, supra.
29 State v. Reed, 65 Mont. 51, 210 P. 756; Maurer v. People, 43 N.Y. 1; Noell v. Commonwealth, 115 S.E.
679, NE 2d 779.
30 Miles v. State, 222 Ind. 312, 53 NE 2d 779; Davidson v. State, 108 Ark. 191, 158 S.W. 1103; Thomas v.
State, 117 Miss. 532, 78 So. 147. See: 23 A.L.R. 2d 473, Sec. 6; 26 A.L.R. 2d 786, Sec. 19.
31 State v. Mannion, 19 Utah 505, 57 P. 542.
32 Glouser v. United States, 296 F 2d 853 Cert. den. 7 L. ed. 2d 789.
590
590
should be able to waive any mere privilege on the trial that is designated only to aid him in shielding
himself from such result.33
In this jurisdiction, this Court, in People v. Avancea,34 traced the history of the constitutional right of the
accused to be present at his trial f rom U.S. v. Karelsen35 and U.S. v. Bello 36 to Diaz v. United States37
and People v. Francisco38. In the first tw o cases, it was ruled th at one whose life or liberty is involved in
the prosecution for felony must be personally present at every stage of the tr ial wh en his substan tive
rights may be affected by the proceedings and that it is not within his power to waive the right to be
personally present. In Diaz v. United States and People v. Francisco, this rule was modified. Upon the auth
ority of the Diaz and Francisco cases, the Court laid down as the law in this jurisdiction that: (1) in cases
of felony, the accused has the right to be present at every stage of the trial, inclusive of the arraignment
and pronouncement of the judgment; (2) where the offense is capital the right of the accused to be
present at every stage of the trial is indispensable and cannot be waived; (3) ev en in felonies not capital,
if th e accused is in custody, his right to be present at every stage of the trial is likewise indispensable and
cannot be waived; (4) where the offense is not capital and the accu sed is not in custody, his presence is
indispensable only: (a) at the arraignment; (b) at the time the plea is taken, if it be one of guilt; and (c) at
the pronouncemen t of judgment. The Court quoted the rationale of Diaz v. United States as basis, of its
ruling, thus:
x x x the court was called upon to pass on the question whether the provision in section 5 of the Philippine
Civil Government Act, securing to the accused in all criminal prosecutions the right to be heard by himself
and counsel, makes his presence indispensable at every stage of the trial, or invests him with a right which
he is alway s free to assert, but which he also may waive by his voluntary act. After
______________
33 Frank v. State, 142 Ga. 741, 83 SE. 645; Thomas v. State, supra; State v. Kelly, 97 N.C. 404, 2 SE. 185;
Hill v. State, 17 Wise. 675.
34 32 O.G. 713, L-37005.
35 3 Phil. 223, 231.
36 11 Phil. 526.
37 223 U.S. 442; 56 L. ed. 500.
38 46 Phil. 403.
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VOL. 63, MAY 9, 1975
591
observing that an identical or similar provision is found in the constitutions of the several states of the
American Union, and that its substantial equivalent is embodied in the 6th Amendment to the
Constitution of the United States; that it is the right which these constitutional provisions secure to
persons accused of crime in that country that was carried here by the congressional enactment; and that,
therefore, according to a familiar rule, the prevailing course of decision there may and should be accepted
as determinative of the nature and measure of the right here, Justice Van Devanter, speaking for the
court, said: As the offense in this instance was a felony , we may put out of view the decisions dealing
with this right in cases of misdemeanor. In cases of felony our courts, with substantial accord, have
regarded it as extending to every stage of the trial, inclusive of the empaneling of the jury and the
reception of the verdict, and as being scarcely less important to the accused than the right of trial itself.
And with like accord they have regarded an accused who is i n custody and one who is charged with a
capital offense as incapable of waiving the right; the one, because his presence or absence is not within
his own control; and the other because, in addition to being usually in custody , he is deemed to suffer
the constraint naturally incident to an apprehension of the lawful penalty that would follow conviction.
But, where the offense is not capital and the accused is not in custody, the prevailing rule has been, that
if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has
been done or prevent the completion of the trial, but, on the contrary , operates as a waiver of his right
to be present, and leaves the court free to proceed with the trial in like manner and with like effect as if
he were present. 39
In Avancea, the issue was whether the defendant charged with an offense which is not cap ital had
impliedly waived his right to be present at his trial, because of his failure to appear in court at the trial of
his case.
Under the present Constitution, however, trial even of a capital offense may proceed notwithstanding the
absence of the accused. It is now provided 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.40
On the basis of the aforecited provision of the Constitution which allows trial of an accused in absentia,
the issue has been raised whether or not petitioner could waive his right to be
_______________
39 People v. Avancea, supra, p. 715.
40 Last sentence of Article IV, Section 19, 1973 Constitution.
592
592
present at the perpetuation of testimony proceedings before respondent Commission.
As a general rule, subject to certain exceptions, any constitutional or statutory right may be waived if such
waiver is not against public policy. The personal presence of the accused from the beginning to the end
of a trial for felony, involving his life and liberty, has been considered necessary and vital to the proper
conduct of his defense. The trend of modern authority is in favor of th e doctrine that a party in a criminal
case ma y waive irregularities and rights, whether constitutional or statutory, very much the same as in a
civil case.41
There are, for instance, certain rights secured to the individual by the fundamental charter which may be
the subject of waiver. The rights of an accused to defend himself in person and by attorney, to be informed
of the nature and cause of the accusation, to a speedy and public trial, and to meet the witnesses face to
face, as well as the right against unreasonable searches and seizures, are rights guaranteed by the
Constitution. They are rights necessary either because of the requirements of due process to ensure a fair
and impartial trial, or of the need of protecting the individual from the exercise of arbitrary power. And
yet, there is no question that all of these rights may be waived.42 Considering the aforecited provisions
of the Constitution and the absence of any law specifically requiring his presence at all stages of his trial,
there appears, therefore, no logical reason why petitioner, although he is charged with a capital offense,
should be precluded from waiving his right to be present in the proceedings for the perpetuation of
testimony, since this right, like the others aforestated, was conferred upon him for his protection and
benefit.
It is also important to note th at under Section 7 of Rule 119 of th e Revised Rules of Court (Deposition of
witness for the prosecution) the Failure or refusal on the part of the defendant to attend the examin
ation or the taking of the deposition after notice hereinbefore provided, shall be considered a waiver
(Italics supplied.) Similarly,
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41 21 Am. Jur. 2d, Sec. 219, p. 259.
42 U. S. v. Go Leng, 21 Phil. 426; U.S. v. Sarabia, 4 Phil. 566; Medina v. Orozco, 18 SCRA 1168; U.S. v.
Anastacio, 6 Phil. 413; U.S. v. Laranja, 21 Phil. 500; People v. Kagui Malasugi, 63 Phil. 221.
593
VOL. 63, MAY 9, 1975
593
Presidential Decree No. 328 expressly provides that . . . the failure or refusal to attend th e examinat ion
or the taking of the deposition shall be considered a waiver. (Italics supplied.)
It is for the foregoing reasons th at the writer of this opinion voted with the six (6) Justices who ruled on
the full right of petitioner to waive his presence at said proceedings.
Since only six (6) Justices (Fernando, Teehankee, Barredo, Antonio, Muoz Palma and Aquino) are of the
view that petitioner may waive his right to be present at all stages of the proceedings while five (5) Justices
(Castro, Makasiar, Esguerra, Concepcion Jr. and Martin) are in agreement that he may so waive such righ
t, except when he is to be identified, the result is that the respondent Co mmissi ons Order requiring his
presence at all times during the proceedings before it should be modified, in the sense th at petitioners
presence shall be required only in th e instance just indicated. The ruling in People v. Avancea43 is thus
pro tanto modified.
Finally, it is insisted that ev en if said orders and decrees were valid as martial law measures, they have
ceased to be so upon the termination of the emergency. In Aquino, et al. v. Enrile, et al., supra, We
adverted to the fact that the communist rebellion which impelled the proclamation of martial law has not
abated. In th e absence of any official proclamation by the President of the cessation of the public e
mergency, We have no basis to conclude that the rebellion and communist subversion which co mpelled
the declaration of martial law, no longer pose a danger to public safety.
It is important to note here that an accused being tried before a mi litary tribunal enjoys the specific
constitutional safeguards pertaining to criminal trials. Thus, he is entitled to be heard by himself and
counsel,44 to be informed of the nature and cause of the accusation,45 to mee t the witnesses face to
face, to have compulsory process to secure the attendance of witnesses and the production of evidence
in his behalf,46 and to be exempt from being a witness against himself. As in trial before civil courts, the
presumption of innocence can only be overcome by evidence beyond reason able doubt of the guilt of
_______________
43 32 O.G., 713.
44 P.D. No. 39, sub. par. b [5] [d]; Article 17, A.W.
45 Ibid., sub. par. b [5] [b] and [c].
46 Ibid., sub. par. b [5] [e]; Article 33, A.W.
594
594
the accused.47 These tribunals, in general, are bound to observe the fundamental rules of law and
principles of justice observed and expounded by the civil judicature.48 Section 11 of the Manual for
Courts-Martial specifically provides that the rules of evidence generally recognized in the trial of criminal
cases in the courts of the Philippines shall be applied by courts-martial.49 This is applicable to trials in
the military commission .50 There is, therefore, no justification for petitioners contention that such
military tribunals are concerned primarily with the conviction of an accused and that proceedings therein
involve the complete destruction and abolition of petitioners constitutional rights. This is not, however,
to preclude the President from considering the advisability of the transfer of th ese cases to the civil
courts, as he has previously announced.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered dismissing the petitions for prohibition
with preliminary injunction and setting aside the te mporary restraining order issued on April 8, 1975,
with costs against petitioner.
Esguerra, Aquino, Concepcion Jr. and Martin, JJ., concur.
Makalintal, C.J., inhibited himself.
Castro, J., files a separate concurring and dissenting opinion.
Fernando, J., concurs and dissents in a separate opinion.
Teehankee, J., dissents in a separate opinion.
Barredo, J., with a separate concurring opinion.
Makasiar, J., concurs in the above opinion and in the concurring opinion of Mr. Justice Castro.
Muoz Palma, J., concurs with Mr . Justice Teehankees dissent in a separate opinion.
_______________
47 Ibid., sub. par. b [7]; Article 30, A.W.
48 Winthrops Military Law, Vols. 1 and 2, 313.
49 Executive Order No. 178, Series of 1938.
50 P.D. No. 39, sub. par. b [7] [a]; Article 37, A.W.
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VOL. 63, MAY 9, 1975
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SEPARATE OPINION
CASTRO, J., concurring and dissenting:
I am constrained to write this concurring an d dissenting opinion because (a) although I substantially agree
with Justice Felix Q. Antonios forthright discussion and learned resolution of the inescapable issues posed
by the petition and the supplemental petitions filed by the petitioner Benigno S. Aquino, Jr., I disagree
with his approbation of the right of total waiver claimed by the petitioner, and (b) I desire to express
my views on matters which, although in a sense peripheral and not squarely in issue, are nevertheless
cogent and pertinent to th e centr al issues at bar.
1. At the threshold, I must state that I voted to deny the petitioner Aquinos mo tion to withd raw his
petitions and all related motio ns and incidents, for the self-same r easons that impelled my vote to deny
Jose W. Dioknos mo tion to withdraw his petition in the Martial Law cases (Aquino, et al. vs. Enrile, et al.,
L-35546, and other allied cases.*) Like in the cases just adverted to, there are in the case at bar
considerations and issues of transcendental and gr ave import, and I apprehend that great disservice may
be caused to the national interest if these are not resolv ed on the merits.
2. I am hard put to understand how and why the petitioners counsels conjured the argument that under
the Bill of Rights the due process accorded to persons accused in criminal cases contemplates only
judicial process. Th is argument runs squarely athwart the time-honored doctrine in the Philippines as well
as in the United Statesa doctrine that the petitioners counsels mu st surely be aware ofthat due
process in criminal trials may co mp rehend not only judicial process, but also executive process (and even
legislative process in the proper cases).
3. Co rollarily to this contention of the petitioner, the further thesis is advanced that his trial by a military
commission denies him due process because he is deprived of the right of appeal. It seems rath er
elementary that the right of appeal, unless the Constitu tion expressly guarantees such right, is mer ely
statutory and may be withdrawn, modified or
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* Promulgated September 17, 1974; see 59 SCRA 244.
596
596
altered at any timea principle that his counsels know only too well. Even an appeal to an interme d iate
collegiate appellate court or to the Supreme Court is not a right under the Constitution unless an explicit
guaran tee can be found in the words thereof.
And as far as appeal is concerned, it is apparent that the petitioners counsels are not aware of the numb
er of the levels of review of a decision of conviction by a mi litary commission in our jurisdiction . Four
levels of review (equivalent to four levels of automa tic appeal) are provided, namely: the first review by
the Staff Ju dge Advocate of the Ch ief of Staff (who appoints the mi litary commiss ion); the second review
by a Board of Review of not less than three senior officers of the Judge Advocate Generals Service; the
third review by a Board of Review of not less th an three senior officers of the Judge Advocate Generals
Service; the third review by a Board of Military Review acting for the Secretary of National Defense and
consisting of not less than two lawyer-officers of at least field rank; and the fourth and final review by the
Secretary of Justice for the President of th e Philippines as Co mmander-in Chief. These four reviews are
compulsory; none of them may be bypassed or dispensed with. And even if the Staff Judge Advocate, the
Board of Review, and th e Bo ard of Military Review all concur in the judgment of conviction and the
sentence imposed by the military commiss ion, the Secretary of Justice may yet, if in his opinion the
evidence so warrants, recommend to the President the acquittal or exoneration of the accused. So that
from arraignment by a military commiss ion to final action by the Presiden t, a minimum of thirteen
presumptively responsible individuals in different capacities are involved in the entire process: a mi litary
commis sion of not less than five me mbers, a Staff Judge Advocate, a Board of Review of not less than
three officers a Board of Military Review of not less than two officers, the Secretary of Justice, and the
President. I cannot accept the petitioners inferential conclusion that all the twelve persons involved
(before the President takes final action) can be dictated to, assuming that the President is minded to
influence them. The petitioner ma y not be aware that the mi litary co mmission now existing have
acquitted many who have been accused before them, and that convictions have been reversed or
modified upon the recommendation of the reviewing officers and boards of
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VOL. 63, MAY 9, 1975
597
officers.
4. The petitioner makes the indictment that the militar y tribunals and the entire Judiciary are, to
paraphrase him, well under the thumb of the President of the Philippines. I quote his exact words: Mr.
Marcos is the single genius, composing and directing all the proceedings, whether in the military tribunal
or in the civil courts . . . [and] has destroyed the independence of th e civil courts . . . Trials by civil courts
would still be a travesty of justice. . . This accusation is doubtless very serious, but I say that it is a gravely
irresponsible one. To declare or imply that the entire Judiciary, from the Chief Justice and Associate
Justices of the Supreme Court down to the last municipal judge, is under dictation by the President, is an
indictment that can come only from a person who does not know whereof he speaks. If the petitioner has
no faith in mil itary j u stice and at the sa me ti me professes absolute lack of faith in the Judiciary, does
this mean that the petitioner is so magically endowed that only he and he alone is capable of meting out
justice in this country? The over-all workload of all the courts in the Philippines has increased
immeasurably. If this does not indubitably indicate th e faith of the people in the Judiciary then I do not
know what does. If the petitioner does not share the faith of th e people in the Judiciary, we must look to
reasons other than the ostensible ones for his irresponsible and reprehensible state me nts. To my mind
these reasons are obvious and need not be belabored.
5. On the matter of whether the petitioner has what he claims is a right of total waiver of his presence
in the proceedings before the military commission, I confess that the basis for such view escapes me. The
trouble with the advocacy of the so-called right of total waiver is that it places undue and inordinate
stress on the rights of the individual an d comp letely re fuses to recognize that the State, too, has its
own rights and duties. I do not believe that there can be any debate on the right and obligation of the
State to ad minister justice properly. Part and parcel of th is right and obligation is the right of a tribunal,
whether jud icial or executive, to satisfy itself that the person whom it may later convict upon the evidence
is the accused pointed to by the eye-witnesses for the prosecution. Because if the witnesses point to X,
and the accused actually happens to be Y, the court of tribunal has, in conscience, no recourse but to
absolve Y. For, the proper
598
598
identification of the accused is the very quintessence andsine quanon of any valid prosecution, is the very
fundament of due process in any criminal t r ial. Surely, if the commi ssion is to discharge its burden
conscientiously, it cannot be denied the right to determine for itself the proper identity of the person who
stands accused before it. This right has absolute primacy over what the petitioner calls his right of total
waiver of his presence.
Of course, in this particular case of the petitioner, it could be argued that he is a national figure and
therefore is known by everybody. But I challenge the correctness of this postulate. For can it not possibly
happen th at a me mb er of the trying tribunal may have heard of Benigno S. Aquino, Jr., the former
Governor of Tarlac and former Senator, but ma y have never actually seen him before? Identification is
essentially one of perception of sight and not a process of inference or strained deductive reasoning. It
may be correct to infer from the declarations in co urt of witnesses for th e prosecution who refer to a
Benigno S. Aquino , Jr., former Govern or of Tarlac and former Senator, that the person referred to is the
petitioner, but this cannot thereby foreclose th e petitioner from later challenging the validity of his
conviction (if he is convicted) upon the ground that not one of the prosecution witnesses pointed to him
as the indicted Benigno S. Aquino, Jr.
My understanding of th e prov isions of the new Constitution on waiver of presence in criminal

proceedings is that such waiver may be validly implied prin cipally in cases where the accused has jumped
bail or has escaped, but certainly ma y not be asserted as a matter of absolute right in cases where the
accused is in custody and his identification is needed in the course of th e proceedings.
And what of the reviews to be conducted by the Staff Judge Advocate of the Chief of Staff, the Board of
Review, the Board o f Military Rev iew, and th e Secretary o f Justice? Is it no t th e bounden duty of these
indiv iduals, singly and collectively, to satisfy the mselves beyond cavil at the outset of review that the
person convicted by the commission is the accused named in the charges and that he was identified
properly by the eyewitnesses for the prosecution?
Thus, I voted for qualified waiver: the accused may vaive his presence in the criminal proceedings except
at the stages where identification of his person by the prosecution witnesses is
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VOL. 63, MAY 9, 1975
599
any case where the accused agrees explicitly and unequivocally in writing signed by him or personally
manifests clearly and indubitably in open court and such manifestation is recorded, that whenever a
prosecution witness mentions a name by which the accused is known, the witness is referring to him and
to no one else.
What is disturbing is that because six Justices voted for total waiver and only five Justices voted for
qualified waiver, the judges of all inferior courts would now be at a loss to determine, in any given
situation, whether to take the total waiver position or follow the qualified waiver doctrineunless it be
conceded that because the Court is divided and the total waiver theory fails to command the assent of
eight Justics, the qualified waiver theory must be regarded as doctrinal law. Otherwise, each judge should
be left to determine, according to his conscience and the milieu of each case, what to do in order to
administer justice properly.
Acquittal on a mistaken iden tity basis has occurred in numberless instances all over the world . While it
is true that the Rules of Court provide that identity of name means identity of person, it is a well-known
fact in this country that there are names so common that many persons carry the same name. Especially
considering that our population has burgeoned considerably, no one can deny that there are many
persons by the name Jose Cruz, many by the name Jose Santos, many by the name Jose Reyes, ad infin itu
m** (which is good enough reason why the President of the Inte grated Bar, retired Supreme Court Justice
Jose B.L. Reyes, has found it necessary to put the letters B and L between the names Jose and
Reyes, and why I have used the name Ruiz in my name in order that my identity will not be confused
with those of two other persons who are known by the name Fred Castro).
6. During the deliberations on this case, there came to the attention of the Court rumors and amorphous
bits of news to the effect that the petitio ner was on the verge of death because of his hunger strike.
Curiously and oddly enough, none of those who purveyed the rumors ever thought of submitting to
________________
** The March 1974 issue of the PLDT Greater Manila Telephone Directory carries 44 listings of Jose Cruz,
44 listings of Jose Reyes, and 47 listings of Jose Santos.
600
600
the Court a state ment from the Secretary of National Defense as to the state of health of th e petitioner.
And because of this, there was a feeling on the part of softie me mbers of the Court that they were being
stamp eded into decidin g this case on th e basis of the petitioners hunger strike. As far as I a m
concerned, I did not think it advisable for the Court to request the Secretary of National Defense for such
statement, because I assumed that if the petitioner were indeed in a state where his death was imminent,
his counsels would have come forward with alacrity to inform the Court accordinglyand this, inspite of
the petitioners mo tion to withdraw which, at the time the rumors reached the Court, was still
unresolved. To argue that because the petitioner had already filed his motion to withdraw there was no
more need for his counsels to give the Co urt in formation regarding his supposed ly deteriorating health,
is to assume erroneously that the Court would grant his motion.
7. I here make of record my considered view that the petitioner has deliberately and calcu latingly tried
to utilize the Court as a forum for his propaganda. First he said he preferred trial by the civil courts to trial
by any military tribunal, but in the next breath he denounced the civil courts as lacking in independence.
Then he filed a petition with the Court to stop the proceedings before the mi litary tribunal; shortly
thereafter he moved to withdraw it, saying that his remedies had come too little and too late. Next he
renounced the services of all his counsels, civilian and mi litary, yet his lawyers continued to file pleadings
in his behalf with the Court, visit him in his quarters, and assist him in the perpetuation proceedings before
the military commission. Then his lawyers filed a manifestation with th e Court claiming that the mi lita ry
commissions decision to compel him to appear was for the purpose of dehumanizing and humiliat ing
him; but; but when the Court, acting on his manifestation, restrained the military commission, he directed
his lawyers to withdraw his petitions before the Court, including his prayer for a te mporary restraining
order. He informed the newspapers that his hunger strike was a protest against his compelled presence
in the perpetuation proceedings, but when six Justices of the Court voted for his right to total waiver
of his presence, he announced that he would attend the proceedings. All of these developments could
indeed be read to mean one or both of two
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things: that his hunger strik e was, after all, perhaps not quite what it purported to be and/ or th at he
has been trifling and continues to trifle with the military commission and with the Court.
8. If I were the petitioner, and I know I am innocent, there would appear to be no reason for me n ot to
face the proceedings frontally and establish my innocence. This is not to imply that the petitioner is guilty
of the charges; it is merely to stress that his behavior is hardly what perceptive people would expect from
a man who professes innocence. If it is propaganda that is in the back of the head of th e petitioner, I
would thin k that th e highest-quality propaganda in his favor is to establish his innocence of the charges
soonest possible.
9. I would like to add my own emphasis to the opinion written by Justice Antonio, by stating in capsule my
considered views: (1 ) the President of the Philippines, by virtue of his proclamation of martial law (in se
nsu strictiore), which the Court has already upheld as with in th e amb it o f h is po wers under the 1935
and 1973 Constitutions, has likewise the power to organize mil itary commissions in order to carry out the
objectives and purposes of martial rule; (2 ) the military commissions created by authority of th e pertinent
presidential decrees are legal as well as con stitutional, as the said presidential decrees have been
expressly made part of the law of the land by the transitory provisions of the 1973 Constitution; (3 ) by
tradition and history as well as by the explicit provisions of the said valid presidential decrees, the military
commissions so created hav e jurisdiction to try civilians for offenses necessarily connected with the
objectives of martial la w, whether these offenses were committed prior to th e in stitu tion of martial ru
le or subsequent th eretoand this inspite of the fact that the civil courts are open and functioning; (4)
the claim of the petitioner that because the offenses with which he is charged were, in point of time,
allegedly committed prior to the declaration of martial law they may not be taken cognizance of by a mi
litary commission, ignores one in escapable basic f act, and this is that the crimes imputed to him are
among the crimes that gave cause for the institution of martial rule ; (5) th e argument of the petitioner
that the Constitution, in providing for due process in cri minal trials, can mean only trial by judicial courts,
not only demonstrates the petitioners misunderstanding or
602
602
misreading of military traditions in civilized countries throughout the ages bu t as well foists an
interpretation of the Constitution not warranted by its phraseology; (6 ) well-imbedded in our
jurisprudence is the recognition that justice can be administered fairly by mili tary tribunals; and (7) the
power of the Supreme Court to review death sentences does not include the power to review death
sentences imposed by military tribunals.
10.) In view of all that I have above stated, and especially in the light of my consid ered opin ion that the
mi litary commissions now in existence have jurisdiction to try civilians, judicial restraint effectively
precludes me from expressing my views on whether the President should transfer the case of the
petitioner to a civil court for trial. Finally, it is my abiding conviction th at the President will do, within the
intendment of his sacred oath of office, what he believes is just for the petitioner and, logically, also for
everyone else similarly situated.
Makasiar, Esguerra, Concepcion, Jr. and Martin, J J ., concur.
FERNANDO, J., concurring and dissenting:
As was made clear at the opening of the learned and comprehensive, ably-penned decision of the Court
through Justice Antonio, I am for the granting of petitioners motion for withdrawal. My brethren had
thought otherwise and consequently did proceed to discuss the merits of the issues raised. While again I
would vote for the transfer of the criminal charges against petitioner to civ il courts, it does not mean that
I am in total disagreement. Nonetheless, there may be a need for a brief expression of opinion on my part
as a mere formal concurrence on some of the points discussed may for some imply an identity of thought
lurking dormant and concealed. It is better to avoid any misunderstanding. Moreover, at least to my mind,
it would make even more apparent the truth that there can be no such thing as comp lete obj ectivity in
constitutional law, a field where there are no abso lutes, every constitutional question involving a
balancing of competing values. It may also serve, hopefully, to illustrate that orth odoxy in j uridical
thought is not per se antithetical to the
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professed aims of an innovative legal order. It gives me an opportunity likewise to acknowledge the n eat
and logical pattern to th e decision that strengthens its plausibility. The principles of law announced flow
from the basic premise of the stern necessities of martial law. What bothers me is that from the standpoint
of tried and tested concepts in constitutional law, there would seem to be a need for further refinement
as to the scope of such doctrines and for clarifying differentiation. That, for me at least, would have been
desirable. The apprehension is entertained that as worded in a rather all-encomp assing manner, they
may yield the i mpression of a total surrender to the pressure of events and the demands of the times.
Candor though compels the admission that in the final analysis juridical theories cannot afford to be in
sensible to political and social realities. Now fo r the grounds of my concurrence and my dissent.
1. In the belief that petitioners motion to withdraw should be granted, I am compelled to dissent. This is
with due recognition of the prin ciple that the Court is vested with discretion to grant or refuse such a
plea. This notwithstanding, I am fully persuaded that the more appropriate response is one of acceding to
petitioners prayer that all cases filed on his behalf in this Court be terminated. The assumption must be
that before he did arrive at such a conclusion, he had weighed with care and circumspection all the
relevant aspects of the situation. It could very well be that he was prompted to take such a move to avoid
further anxiety and worry on his part, considering that the ultimate ou tcome could belie expectations
and frustrate hopes. At any rate, with his mind thus made up and without any comp elling reason, in my
mind, for the Court to keep the case in the docket, the discretion should be exercised in his favor. Nor
does the fact that he used rather harsh language in the reasons given by him for his motion of withdrawal
militate against his plea. There must be more understanding shown for the state of his physical and mental
health after this long period of confinement, and of late of his depriving himself of the daily sustenance.
What is more, the cutting edge of his sharp and pointed words ma y be blunted by the performance of
this Court, wh ich in the ultimate analysis is the ultimate criterion as to wheth er or not it has adequately
discharged its responsib iliti es or lived up to the trust reposed in it. The judgment is fo r the entire
constituency of in formed and
604
604
concerned citizens, not of petitioner alone. As for any individual Justice, I would assume that what matter
s mo st is the verdict of his conscience.
2. Now as to the nature of my concurrence which has to be further qualified. Right at the outset, may I
make clear that I join my brethren only to the extent that the conclusion arrived at by them conforms to
what I had previously expressed in my separate opinions in Aquino v. Ponce Enrile1 and Aquino v.
Commission on Elections.2 It follows that where the opinion of the Court reflects the stand I took, I a m in
agreement. More specifically, on the question of th e scope of the competence of a military co mmission,
I would predicate my vote on the co nstitu tio n al p rov ision that affix es to General Orders Nos. 8, 12,
and 39 the status of being part of the law of the land.3 W ith due recognition of the vigor with wh ich
counsel for petitioner had pressed the point that such a character cannot be impressed on the aforesaid
general orders if found in conflict with the present Constitu tion, I still fin d difficulty in according comp le
te acceptance to such a view. To do so in my opinion would mean closing ones eyes to what was intended
by the 1971 Constitutional Convention insofar as it did provide for the continued existence of a mi litary
commission with such powers as were then exercised. This is not to imply though that in no case may a
Presidential proclamation, order, decree, or instruction be challenged in appropriate suits for lack of
conformity to a specific provision found in the present Constitution.
3. It is to be stressed further that were it not for the above mandate of the Transitory Provisions, the
submission of petitioner as to a military co mmission being devoid of jurisdiction over civilians elicits
approval. The controlling
_______________
1 L-35546, September 17, 1974.
2 L-40004, January 31, 1975.
3 According to Article XVII, Section 3, par. 2 of the Constitution: All proclamations, orders, decrees,
instructions, and acts promulgated, issued or done by the incumbent 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.
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VOL. 63, MAY 9, 1975
605
principle, to my mind , is that supplied in the opinion of the United States Supreme Court in Duncan v.
Kahanamoku,4 a decision impressed with the greatest relevance inasmuch as it interpreted the specific
section found in the Hawaiian Organic Act,5 which was also a feature of the Philippine Autonomy Act,6
the source of the martial law provision in the 1935 Constitution.7 As set forth in the Duncan opinion
penned by Justice Black: Our question does not involve the well-established power of the mil itary to
exercise jurisdiction over me mbers of the armed forces, those directly connected with such forces, or
enemy belligerents, prisoners of war, or others charged with violating the laws of war. W e are not
concerned with the recognized power of the military to try civilians in tribunals established as a part of a
temporary military government over occupied enemy territory or territory regained from an enemy where
civilian government cannot and does not function. For Hawaii since annexation has been held by and loyal
to the United States. Nor need we here consider the power of the mi litary simp ly to arrest and detain
civilians interfering with a necessary military fun ction at a time of turbulence and danger from
insurrection or war. And finally, there was no specialized effort of the military, here, to enforce orders
which related only to mi litary functions, such as, for illustration, curfew rules or blackouts.8 I see nothing
in Moyer v. Peabody9 that in any way runs counter to the above summary of the scope of the power of
military tr ibunals. That was an action, as pointed out by Justice Holmes, brought by the plaintiff in error
against the former governor of the state of
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4 327 US 304 (1946).
5 Section 67, ibid, 308.
6 The Philippine Autonomy Act (1916).
7 According to Article VII, Section 10, par. 2 of the 1935 Constitution: The 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. In case of
invasion, insurrection, or rebellion, or imminent danger thereof, when the public safety requires it, he
may suspend the privileges of the writ of habeas corpus, or place the Philippines or any part thereof under
martial law.
8 327 US 304, 313-314.
9 212 US 78 (1909).
606
606
Colorado, the former ad jutant general of the national guard of the same state, and a captain of a company
of the national guard, for an imprisonment of the plaintiff by them while in office.10 Then came this
portion of the opinion: The comp laint alleges that the imprisonment was continued from the morning
of March 30, 1904, to the afternoon of June 15, and that the defendants justified under th e Constitutio n
of Colorado, making the governor commander in chief of the state forces, and giving him power to call
them out to execute laws, suppress insurrection, and repel invasion. It alleges that his imprisonment was
without probable cause, that no complaint was filed against the plaintiff, and that (in that sense) he was
prevented from having access to the courts of the state, although th ey were open during the whole time
; but it sets out proceedings on habeas corpus, in stituted by him before th e supreme court of the state,
in wh ich that court refu sed to admit him to bail and ultimately discharged the writ. 35 Colo .154, 91 Pac.
738, and 35 Colo. 159, 12 L.R.A. (N.S.) 979, 117 Am. St. Rep. 189, 85 Pac. 190. In those proceedings it
appeared that the governor had declared a county to be in a state of insurrection, had called out troops
to put down the trouble, and had ordered that the plaintiff should be arrested as a leader of the outbreak,
and should be detained until he could be discharged with safety, and that then he should be delivered to
the civil authorites, to be dealt with according to law. 11 Plaintiff in error would hold the Governor liable
fo r his order of detention in the course of suppressing an insurrection. As the case was dismissed on
demurrer by the Circuit Court, it was elevated to the United States Supreme Court. In affirming the
judgment, Justice Holmes categorically sta ted: When it comes to a decision by the head of the state
upon a matter involvin g its life, the ordinary rights of individuals mu st yield to what he deems the
necessities of the mo ment. Public danger warrants the substitution of executive process for judicial
process. See Keely v. Sanders, 99 U.S. 441, 446, 25 L. ed. 327, 328. This was admitted with regard to killing
men in the actual clash of arms ; and we think it obvious, alth ough it was dispu ted, th at the same is true
of temporary detention to prevent apprehended harm.12 It does appear to me then, and this I say with
due
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10 Ibid, 82.
11 Ibid, 82-83.
12 Ibid, 85.
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VOL. 63, MAY 9, 1975
607
respect, th at it is a rather forced in terpretation to extract from the above explicit declaration of Justice
Holmes the meaning that military tribunals are vested with jurisdiction over civilians. What was invo lved
was a detentio n, not a trial. Under the view I entertain that Duncan v. Kahanamoku supplies the applicable
principle under the 1935 Constitution, the citations from W inthrop and Fairma n found in th e opinion of
th e Court are, for me, less than persuasive.13 What compels concurrence on my part, to repeat, is the
law of the land section found in the Transitory Provisions. Absent that provision, I would be unable to
yield to the conclusion reached by my brethren on the question of jurisdiction.
4. The recognition imp licit in the above constitutional precept as to the competence of a military commiss
ion to conduct criminal trials of certain specified offenses, to my mind, carries with it the duty to respect
all the constitutional rights of an accused. It is from that perspective that a discussion of the due process
guarantee gains significance. It has a connotation both substantive and procedural. As to the latter aspect,
it is true th at it, has at its core, to follow the classic formulation of Webster, the requirement of a hearing
before condemnation and a process of rational inquiry, but it has a much wider radiation extending to all
the legal safeguards enjoyed by a person indicted for an offense. So it has come to be in th e United States,
where it is deemed to include the right to be free fr om unreasonable searches an d seizures and to have
excluded from criminal trials a n y evidence illegally seiz ed;14 the right to be free of compelled self-
incrimination,15 the right to counsel,16 the right to a speedy17
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13 Two American cases were cited in support of the view that due process is not necessarily judicial
process, Simon v. Craft, 182 US 427 (1901) and Ballard v. Hunter, 204 US 241 (1907). The relevance is not
immediately apparent, especially so as the former dealt with the proceedings taken in connection with a
person of unsound mind, and the latter with the administrative process followed for the sale of property
for nonpay ment of levy taxes. Nor is the reference to a secondary authority , 16 Am. Jur. 2nd, of any
particular worth.
14 See Mapp v. Ohio, 367 US 643 (1961).
15 Malloy v. Hogan, 387 US 1 (1964).
16 Gideon v. Wainwright, 372 US 335 (1963).
17 Klopfer v. North Carolina, 386 US 213 (1967).
608
608
and public18 trial, to confrontatio n of opposing witnesses, 19 to compulsory process for obtaining
witnesses,20 the right to a jury trial,21 and the right against double jeopardy. 22 S uch an approach is not
uncongenial in our jurisdiction.23 A related matter is the question of due process and preliminary
investigation. I have my reservation s as to the tone of certitude in the opinion of th e court concerning
the latters being bereft of any constitutional significance. It was the ruling in People v. Sierra24 that the
principle uninterruptedly adhered to [is] that only where an accused is held to answer a criminal offense
in an arbitrary or oppressive manner is there a disregard thereof. The requirement of the proceeding not
being unjust or unreasonable must be met. This is not to rule out cases where such infirmity could be
predicated on a showing that the disregard of this procedural safeguard did infect the prosecution with
unfairness. In that sense, what was held in People v. Monton as to such a failing nullifying th e proceeding
because of the due process protection could still be conceivably relied upon.25
5. Thus we come to what for me is th e crucial issue posed, labeled the principal question in the me
morandum of petitioner. He would in voke th e highly-prized ideal in adjudication announced in Gutierrez,
likewise a due process requirement, that a party to a trial is entitled to nothing less than the cold
neutrality of an impartial judge.26 His fears, not devoid of plausibility, proceed from respondent
Commission having been created by the Presidents Order and subject to his control and direction being
unable to ignore his characterization that the evidence against petitioner was not only strong [but]
overwhelming.27 It is to th at implacable tenet of objectivity and neutrality, one of constitutional
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18 In re Oliver, 333 US 257 (1948).
19 Pointer v. Texas, 380 US 400 (1965).

20 Washington v. Texas, 388 US 14 (1967).
21 Duncan v. Louisiana, 391 US 145 (1968).
22 North Carolina v. Pearse, 23 L. ed. 2d 656 (1969).
23 Cf. Abriol v. Homeres, 84 Phil. 575 (1949) and People v. Holgado, 85 Phil. 752 (1950).
24 L-27611, August 30, 1972, 46 SCRA 717.
25 Ibid, 726-727. People v. Monton is reported in 23 SCRA 1024.
26 Gutierrez v. Santos, L-15824, May 30, 1961, 2 SCRA 249.
27 Petitioners memorandum, 35.
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VOL. 63, MAY 9, 1975
609
dimension, that appeal is made. For Gutierrez has been followed subsequently in an unbroken line of
decisions with an impressive concord of opinion.28 That for petitioner is to buttress a stand that mi rrors
the realities, to re inforce the solidity of his position. For was it not Stoessinger who pain ted out th at
there ma y be at times a tendency difficu lt to resist in subordinate military agencies to view ma tters in
the light supp lied by prev ious prono un cements of those higher up in the ranks and to respond to
situations less on th e basis of empirical evidence but more on that of conformity to a position officially
taken. I do not have to go that far. There is acceptance on my part that, as the opinion of the Court states,
respondent military co mmission ma y be trusted to be fair and that at any rate there are still various
appeals in th e offing. Thus there are built-in defenses against any erroneous or unfair judgment. There
is, however, this other point to consider. For the Gutierrez ruling as now interpreted does not only guard
against the reality but likewise the appearance of partiality. That would argue strongly for the transfer of
th e trial of the criminal charges against petitioner to civil courts. Nor would he be the only one thereby
benefited. Respondent Commission would be spared from proceeding with a case where from the start,
in view of the peculiar circumsta nces, its bonafides had been open to question, although admittedly
lacking factual foundation. The President likewise would be absolved from any adverse, if unfounded,
criticism. The greatest gain of course would be for the administration of justice. There is relevance to this
excerpt from Palang v. Zosa:29 This voluntary inhibition by respondent Judge is to be commen ded. He
has lived up to what is expected of occupants of th e bench. The public faith in
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28 Cf. del Castillo v. Javellana, L-16742, Sept. 29, 1962, 6 SCRA 146; People v. Gomez, L-22345, May 29,
1967,-20-SCRA 293; Austria v. Masaquel, L-22536, Aug. 31, 1967, 20 SCR A 1247; Pimentel v. Salanga, L-
27934, Sept. 18, 1967, 21 SCRA 160; Zaldivar v. Estenzo, L-26065, May 3, 1968, 23 SCRA 533; Luque v. Kay
anan, L-26826, Aug. 29, 1969, 29 SCRA 165; Paredes v. Gopengco, L-23710, Sept. 30, 1969, 29 SCRA 688;
Geotina v. Gonzalez, L-26310, Sept. 10, 1971, 41 SCRA 66; Tobias v. Ericta, Adm. Case No. 242-J, July 29,
1972, 46 SCRA 83; Mateo Jr. v. Villaluz, L-34756, March 31, 1973, 50 SCRA 19; Umali v. Villaluz, L-33508,
May 25, 1973, 51 SCRA 84; Pala ng v. Zosa, L-38229, Aug. 30, 1974, 58 SCRA 776.
29 L-38229, Aug. 30, 1974, 58 SCRA 776.
610
610
the impartial administration of justice is thus reinforced. It is not enough th at they decide cases without
bias and favoritis m. It does not suffice that they in fact rid themselves of prepossessions. Their actuation
must inspire that belief. This is an instance where appearance is just as important as the reality. Like
Caesars wife, a judge mu st not only be pure but beyond suspicion. At least, that is an ideal worth striving
for. What is more, there is deference to the due process mandate.30 Necessarily then, there is complete
acceptance on my part of the thought expressed in the opinion of the Court that the President is not
precluded from pursuing further a notion previously expressed by him concerning the possible transfer of
the proceedings against petitioner to the civil courts.
6. A few words more. It is to be admitted that in coping with the urgencies of the time s, in accordance
with what is ordained by the fundamental law and thus have its promise fulfilled, this Court is compelled
to enter a domain much less clearly mapped out than before. It has to find its way as best it can with the
light supplied by applicable precedents and the promptings of reason at times rendered obscure by the
clouds of the emergency conditions. Moreover, there must be an awareness th at the comp lexities of an
era may not yield to th e simp licities of a constitutional fundamentalis m as well as of the pitfalls of merely
doctrinaire interpretations. It cannot apply precepts with inflexib le rigidity to fast-changing situations.
The notion of law in flux carries it far indeed from a fixed mooring in certainty. There must be, it cannot
be denied , greater sensitivity to the shifts in approach called for by the troubled present. Nonetheless, to
paraphrase Cardozo, care is to be taken lest time-tested doctrines may shrivel in the effulgence of the
overpowering rays of martial rule. There mu st be an effort to remain consistent with the old although
relevant to the new. It is my view that thereby th ere is fidelity to the concept of the Constitution not only
as a broad charter of powers to resolve conflicting issues and social problems, a means of ordering the
life of the nation in ti mes of normalcy as well as of crisis, but also as a citadel of civil liberties.
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30 Ibid, 778.
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VOL. 63, MAY 9, 1975
611
TEEHANKEE, J., dissenting:
This opinion for the gran ting of petitioners withdrawal motion and in view of its denial, for the granting
of the writ of prohibition against respondent mil itary commission as prayed for in the petition, is issued
pu rsuant to the Courts Resolution of April 25, 1975, which ruled as follows:
xxx xxx The Court, by a vote of seven to three, Resolved to DENY petitioners 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 Munoz 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 Munoz 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, Muoz Palma and Aquino, JJ., voted in favor of upholding the
petitioners 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., did not take part for being a party respondent; Makasiar, J., is on official leave.
I. I vote for the granting of petitioners mo tion to withdraw his petition and all other pending motions
and mat ters.
To paraphrase and cite the Chief Justices reasons in casting a vote for granting a similar motion for
withdrawal of petition filed by former Senator 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
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1 Aquino, Jr. vs. Enrile and related cases, 59 SCRA 183, 236 (Sept. 17, 1974).
612
612
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 fundame ntal question of whether military
tribunals have jurisd iction to try civilian s (wherein petitioner was sentenced on March 16, 1973 to death
by firing squad, which sentence was affirmed on Septemb er 29, 1973 by the President and which has long
been pending decision); and since it is petitioner Aquinos life and liberty that are at stake, his choice to
renounce his own petition questioning the jurisdiction of respondent military co mmission to try the cases
filed against him and the subsequent incidents and to remove the case from this Courts 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 Courts tu rning down th e p lea to with draw . . . . 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 Courts Resolution of April 25, 19 75 which denied the mo tion3 the majority
opinion would fall short of the required number of eight Justices to render a decision on the me rits.4
The Solicitor Generals 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.
Petitioners mo tion is thus silently eloquent in its avoidance of the reasons for (withdrawal), his prayer
that if the petitioners mo tion is granted, it should be
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2 L-36188, filed on January 29, 1973 and deemed submitted for resolution with the filing on May 8, 1973
of the last pleading, petitioners sur-rejoinder, as required by the Courts 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.
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VOL. 63, MAY 9, 1975
613
with prejudice, is incon sistent with his posture that the petition is pre mature 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 agains th e petitioner,
and if this be so, petitioners withdrawal of his petition at bar precisely clears the way of all judicial
obstacles for the prosecution to do so.
Petitioners withdrawal should be properly granted in pursuance of the established principle th at the
judicial power is exercised only when necessary for the resolution of an actual case and controversy,
particularly in view of th e 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 ramifi cations which concern interalia 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 in ferior courts as may be established by law and the recognition of the individuals
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 state ment of the factual background is required for the proper consideration
of the issues on the merits.
Petitioner (after having been serv ed on August 11 and 18, 1973 at his detention quarters with copies of
the six criminal charges filed against him with respondent mili tary commission) filed on August 23, 1973
his origianl petition at bar for prohibition questioning the ju risdiction of military tribunals in the absence
of a state of war or belligerency over civilians like him partic ularly, fo r civil offenses allegedly committed
before the proclamation of martia l 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-examin e the witnesses against him.
614
614
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 Philippines5, 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 prelimin ary hearing on August 26, 1973 (a Sunday) on the question of whether
with its me mbership 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 fo r following petitioners refusal to participate in the
arraignment and trial set on August 27, 1973, the President issued on August 28, 1973 Ad ministrative
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 me mbers to be designated respectively, by the accused-petitioner himself,
the president of th e Integrated Bar of th e Philippines, the Secretary of Justice and the Secretary of
National Defense, with the proviso that should th e accused decline to designate a representative to th
e committee, the Chief Justice shall designate someone in his stead and expressly stating the following
premises and objectives:
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 imparti al 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 any body that only after finding a prima
facie case against him were changes filed;
WHEREAS, i t is necessary for the above purpose that a
_______________
5 General Orders 3, 3-A, 8 and 12.
615
VOL. 63, MAY 9, 1975
615
Committee be created to conduct a re-investigation of said charges to demonstrate that every thing 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
xxx xxx xxx
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 th e 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 reinvestigation 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
_______________
6 Emphasis supplied.
616
616
requiring an answer thereto which was filed by the Solicitor General on August 21, 1974. On October 31,
1974, petitioner filed a second supp lemental petition citing th e Presidents state ments to the world
press on April 15, 1974 and August 19, 1974 on the actual re moval of martia l la w an d that technically
and legally, martial la w was lifted with the ratification of the Constitution last year (1973). The Solicitor
General filed his answer thereto on December 11, 1974.
Me mo randa were filed by petitioners counsel and by the Solicitor General on March 21 , 1975 and March
11, 1975, respectively.
Meanwhile, on March 10, 1975, respondent mi litary commission issued ex parte its order granting the
prosecutions 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 th e delay of the perp etuation of th e testimonies of the prosecution witnesses. . .
Petitioners counsel filed on March 24 , 1975 an urgent motion to restrain respond ent mi litary
commission from holding the perpetuation proceedings on the grounds among others that the very issue
of its jurisdiction to tak e cognizance of civil offenses allegedly commi tted before ma rtial law by civilians
like p etitio n er was p end ing with th is Cou rt and that such proceedings would short-circuit the Special
Reinvestigating Committee created under Administrative Order No. 355 ev en before such committee ha
s 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 no t
petitioner should be held for trial.7
On April 1, 1975, th is Court, then composed of ten me mb ers issued its resolution that it lacked the
necessary quorum to act on petitioners said urgent mo tion.
On April 7, 1975, petitioners counsel filed an urgent manifestation averring that th is 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
_______________
7 Par. 8, Petitioners urgent motion of March 24, 1975.
617
VOL. 63, MAY 9, 1975
617
after respondent mil itary commission had on April 1, 1975 held , consistently with Elago vs. People8 that
the perpetuation proceedings are not a part of the trial and granted petitioners 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 prosecutors
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
milita ry prosecutors manifestation) and that petitioner mu st be physically present throughou t the
proceedings even against his will.
Petitioners counsel further manifested that petitioners request to respondent mil itary co mmission to
suspend the proceedings for seven days to allow his counsel time and opportunity to seek appro priate
relief from this Court was summarily denied and petitioner then delivered his state ment 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, an d with p etitio n er b ein g co mp elle d to b e p r esen t throu gho u t th e
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 withrawn 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 ma tter is heard
and further orders and set petitioners urgent motion and related incidents for hearing on April 14, 1975.
It was at this hearing that petitioners counsel presented the simp le motion to withdraw the petition
_______________
8 84 Phil. 643.
618
618
and all other pending motions in compliance with the petitioners express wish.
In compliance with the Courts instruction at the hearing to inquire into petitioners reasons for his
withdrawal motion, his counsel on the next day, Ap ril 15, 1975, filed their manifestation submitting
therewith petitioners 6-page letter of April 14, 1975 addressed to his wife, mo ther, 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 sin ce 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; th at The meaning
an d thrust of (his) absence or presence in the proceedings before the military trib unal 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 ch aracter of the constitutional issues raised, dealing as they do with the
individuals fundamental l iberties as guaranteed by the Bill of Rights even in a state of martial law, which
con cededly is not a military takeover of civil government functions9 and recognized under the 1973
Constitution to which all have pledged loyalty and wherein we are now called upon to discharge the
judiciarys great burden of defining its c onstitutional boundaries, comp els my vote on the merits which I
cast for the grantin g of the writ of prohibition prayed for ag ainst respondent mi litary commission for
the reasons and considerations which are hereinbelo w 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 ex clusively in the Supreme Court and in such inferior courts
as are duly established by law.10 Judicial power exists only in the courts,
_______________
9 Presidents statement on announcing his proclamation of Martial Law, Sept. 23, 1972.
10 Article X, section 1, 1973 Constitution.
619
VOL. 63, MAY 9, 1975
619
which have exclusive power to hear and determine those matters wh ich affect th e life or liberty or
property of a citizen.11
Military co mmission or tribunals are admi ttedly not courts and do not form part of the judicial system.
As further admitted by the So licitor General in his answer12, militar y commissions are authorized to
exercise jurisdiction over two classes of offenses, whether committed by civilians or b y military personnel
either (a) in the enemys country during its occupation by an ar my and while it re mains under military
government or (b) in the locality, not within the enemys 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 li mited
, cannot be taken cognizance of by the ordinary tribunals.
Since we are not en emy-occupied territory nor are we under a mi litary g overnment and even on the
premise that martial law continues in force, th e 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 mi litary
tribunals th at the placing of Hawaii under martial law (after the Japanese Pearl Harbor attack on
December 7, 1941) under the Hawaiian Organic Act15 d id no t in clud e th e power on th e p art of th e
mi lit ary gov ern or to supplant civilian laws by mi litary orders and to supplant
_______________
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 Hawaiis 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 requiresit.
620
620
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 governments appeal to
abandon the open courts rule on the alleg ed ground of its unsuitability to modern warfare conditions
wh er e 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 seekin g to justify military usurpation of civilian
authority to punish crime without regard to th e potency of th e Bill of Rights, and observing th at
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 militar y authority
over civilians cannot rest on the Presidents power as Commander-in-Chief or on any th eory of martial
law.
Thus, th e President has filled up vacancies in th e judiciary and allayed effectively the fears expressed
during the initial days of martial law that the rule of the mi litary 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 notwithstanding the absence of a state of war or belligerency and the unimpaired
functioning of th e regular courts of justice, such jurisdiction could no t encompass civil offenses (defined
by the general civil alw 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 Septemb er 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
_______________
16 350 U.S. 5, 14 (1955).
17 Philippine Daily Express, Jan. 3, 1974, page 4.
621
VOL. 63, MAY 9, 1975
621
rendered helpless before some latter-day revival of old military charges18 and subjected to military
trials for offenses committed while they were in the mi litary 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 milita ry law officer.
Substantially different rules of evidence and procedure apply in mi litary trials. Apart from these
differences, the suggestion of the possibility of influence on the actions of th e court-ma rtial by the officer
who convenes it, selects its me mbers and the counsel on both sides, and who usually has direct command
authority over its me mb ers is a pervasive one in milita ry 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 mi litary discipline is preserved, and that exservicemen should be given the benefits of a civilian
court trial wh en th ey are actually civ ilian s x x x. Free countries of the world have tried to restrict mili
tary tribunals to the narrowest jurisd iction deemed absolutely essential to maintaining discip line among
troops in active service.
More so then should mi lita ry trials be not sanctioned for civil offenses allegedly commi tt ed by civilians
like petitioner long before the declaration of martial law and for which they could have been charged then
as well as now befo re the civil courts which have always remained open and their process and functions
unobstructed.
The Solicitor Generals con tention that mil itary tribunals have comp etence to try civ il crime s relating
to the causes justifying the proclamation of martia l law19 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 .
_______________
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.
622
622
On the contrary, the Presidents issuance of Admin istrative Order No. 355 on August 28, 1973 for the
reinvestigation of the charges against petitioner by a non-mi litary special committee establishes per se
that no serious ground s of overpowering necessity or considerations of national security or emergency
stand in the way of recognizing petitioners right to a civilian trial should the results of the civilian
reinvestigation prove adverse to him.
As stated by the present Ju dge Advocate General in his treatise on martial law, Necessity li mits both th
e 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 excep t where necessity ju stifies 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 circumsta nces. This principle is based not only upon the fundamental precepts of constitutionalism,
but rests on sound reasonthat 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 ag ainst 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
_______________
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 su ch right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall
be used against him.
623
VOL. 63, MAY 9, 1975
623
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 th
e prelimin ary 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 hearts23 who are not lawyers
(except the law me mber), 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 th at th e National
Assembly (which is vested with th e 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
_______________
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 x x x (without) a
proper preliminary investigation thereof, with notice, x x x 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 x x x.
23 Brig. Gen. G.S. Sa ntos, AFP JA GO Chief, Phil. Daily Express, April 26, 1975, p. 10.
24 Art. X, sec. 5 (2) of the 1973 Constitution; Rule 115, see. 1 (i).
624
624
has consistently exacted the cardinal rule that the prosecution must prove the guilt of the accused beyond
a reasonable doubt and required a qualified majo rity 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 in vestig ation (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 a mple lawful protection in the enforcement of said Act, such as th
e basic right to be tried by judicial process and the right of judicial review by this Court would further
offend th e Constitutional injunction against the enactment o f 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
th e 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 th e Act. Hen ce, 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
______________
25 Art. IV, sec. 12, 1973 Constitution.
26 48 SCRA 382, 415 (Dec. 27, 1972); see also 56 SCRA 793 (Apr 30, 1974).
625
VOL. 63 , MA Y 9 , 1975
625
fitness for the task.27
Petitioner has thus cited the Presidents announce ment on December 11, 1974 that the persons charged
with assassination atte mpts against him will be tried before the civil courts although the charges were
filed with the mi litary tribunals28 and the Presidents recent issuan ce on March 6, 1975 of Letter of
Instruction No. 225 creating a special five-memb er 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. Petitioners plea that his trial by a military tribunal created by the President an d co mposed of the
Presidents own military subordinates with out tenure and of non-lawyers (except the law me mb er) and
of whose decision the President is the final reviewing autho rity 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
th at the President has publicly declared th e evidence against petitioner not only strong (but) over-
whelming and in petitioners view thereby prejudged and pred etermi n ed his guilt merits consideration.
In petitioners 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 co mmission, and
declared the evidence against petitioner not only strong (but) over-whelming. The President explained
on the sa me occasion that in not acting against petitioner, he had erred on the side of generosity as well
as of liberality hoping that goo d 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
_____________
27 Fernandos 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.
626
626
what will happen later on, because, of course, the mi litary insist that we mu st not make any exceptions
to the general rule.30
While one may agree that th e 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 Presidents appraisal of the evidence and without casting any reflection
on the integrity of the members of respondent military commission which petitioner himse lf
acknowledges, the doctrine consistently held by the Court that ele me ntary due process requires a
hearing before an impartial and disinterested tribunal31 and that All
_______________
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 y ou contemplate any particular action on Mr. Aquino and some
other officials, which y ou have also mentioned?
The President: - Well, I have been asked the question, then why did y ou not order the arrest of Senator
Aquino? And my answer was he has alway s 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 tofor conviction?
The President: - I believe so, I have not included some of the evidence, but even with what we have, and
the testimonies ofsome 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 y ou
empowered to call the Armed Forces to arrest the senator?
The President: - Yes, I amthat 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.
627
VOL. 63 , MA Y 9 , 1975
627

suitors . . . are entitled to nothing short of the cold neutrality of an independent, wholly free, disinterested
and impartial tribunal32 calls for application in the present case.
This Court in all its j urisprudence on disqualification and inhibition of judges has invariab ly cited as a
salutary norm . . . that he (the judge) reflect on th e probability that a losing party mig h t nu rtu r e at th
e b ack o f h is mi n d th e th ough t th at th e 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, bein g 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 civ ilians by military
commissions is in error as that case involved th e trial and punishment of war criminals (which) is an
aspect of waging war. Neither is the creation of the Peoples 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 th e 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 th e issue of respondent military commissions lack of jurisdiction over the charges
against the petitioner, the examinatio n of the prosecution witnesses and the perpetuation of their
testimony should properly be held before th e Special Reinvestigating Committee created under
Administrative Order No. 355 for the simp le 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 th e perpetuation
of testimony given before the said Committee is expressly
______________
32 Luque vs. Kay anan, 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).
628
628
provided for in the Adminstrative Order.
It was precisely to reassure th e (petitioner) that he continues to enjoy his constitu tional right to due
process and to insure utmo st fairness, impartiality and objectivity and to determine whether really
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-me mb er committee to conduct the preliminary investigation of the ch arges 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, 1 971
:
I am a lawy er, my training is oriented towards the protection of the Bill of Rights, because if y ou 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, x x x35
In petitioners 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 commis sions 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 th e Philippines th at it has
outlived its usefulnessfunctu s oficioor th at it is not fit to administer justice to the petitioner.36
While petitioner insisted on his right to a preliminary investigation of the su bversion charges by the court
of first instance as prescribed by Republic Act 1700, he nevertheless
______________
35 Manila Times, Aug. 30, 1971, Annex A, petition.
36 Par. 8, Urgent Motion of March 24, 1975.
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629
propounded in h is March 21 , 197 5 memorandum th at retired Justice J. B. L. Reyes having declined to

act as chairman of the committee an d 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 n o th ing to p r ev en t th e d esign ation o f ano th er retired ju stice of the Supreme Court as chairman,
and nothing to prevent the incoming president of the Integrated Bar to designate a representative to the
commi ttee. 37 As to petitioners having declined to designate his representative, it has already been
pointed out, supra,38 that the said order expressly provides that in such event th e Chief Justice shall
designate someone in his stead.
It is evident then th at under the said order, th e Chief Justice was called upon to fill at least the two
vacancies by making th e substitute designations as therein provided, which would have enabled the
commi ttee to discharge its function with a composition of four members (while awaiting the designation
of the fifth me mber by the IBP pr esident) but that he refrained from doing so as the matter was sub
judice because of the pendency of the supplemental petitio n at bar questioning the validity of the order
on the ground that it depriv ed petitioner of his right to investigation by the court of first instance on th e
principal charges of subversion .
With the Courts dismissal of the petitions (and petitioners withdrawal thereof) nothing stands in the way
now of activating the said Special Reinvestigating Commi tte e and its discharging its. assigned task of
conducting the preliminary investigation and determining wh ether petitioner should be held for trial in
imple mentation of the orders 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 Rein v estig ating Co mmi ttee with its diverse me mbership
and emphasis that those designated must meet the qualifications of being learned in the law, repu ted
for probity, integrity, impartiality, incorruptibility and fairness and mu st have had
______________
37 Petitioners memorandum of March 21, 1975, p. 48.
38 At page 4 hereof.
630
630
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 th e
b en efit of an y preliminary investigation.
Going by the very standards of utmost fairness, impartiality andobjectivity 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 th e witnesses presented against him, it will be readily
appreciated that in such preliminary investigation by a non-military s p ecial 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 time ly objections to the admission of incompetent
or inadmissible evidence, not to mention that the five men learned in the law composing the committee
w ould mo st likely motu proprio rule ou t an y su ch inadmissible evidence. This would be in contrast to
the perpetuation proceedings in th e 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
militar y co mmission over civilians like him for alleged pre-martial law civil offen ses 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 th e Special Reinvestigating
Committee before whom the testimonial evidence sought to be perpetuated sh ould 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 w ould dispose of the legal requirements under P.D. No. 328 itself that
the proceedings be had before a mi litary 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
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631
that the charges are in fact deeme d withdrawn from the mil itary tribunal and the latter canno t hold any
proceedings for as long as the committee has not comp leted 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 prov id es for the perp e tuation 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 th e perpetuation of testimony proceedings could be properly conducted

before respondent military co mmission, petitioners physical presence at the proceedings could not be
compelled by virtue of his express waiver thereo f as ex p licitly allo wed b y th e Co n stitu tion and by
P.D. No. 328 itself.
On April 1, 1975, responden t mil i tary commis sion had recognized petitioners 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 prosecutors instance and ruled instead that petitioners presence at every
stage of the proceeding is indispensable on th e ground, as stated by the Solicitor General, that the
charges against petitioner in volve 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
Petitioners submittal that he cannot be comp elled 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 accuseds
presen ce in criminal proceedings was generally recognized40 save in capital cases41 (lea ding to the
suspension of trial whenever the accused was at large) or where
______________
38* Supra, at page 4 hereof.
39 Respondents Reply to petitioners Manifestation dated April 11, 1975.
40 People vs. Francisco, 46 Phil. 403 (1924).
41 People vs. Avancena, 32 O.G. 713 (1933), see Diaz vs. U.S. 222 U.S. 442 (1912).
632
632
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 ma y 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 th e witness may proceed in the accuseds absence
and the failure or refusal to attend the examination or the taking of the deposition shall be considered a
waiver.43 Thus, an accuseds 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 me mbers of the Court who voted as per the April 25, 1975 resolution in favor of
qualified waiver, i.e. that the accuseds presence could be required in the instances where his presence is
needed for his identification by the prosecution witness, the v iew 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 id entity of person fro m identity of name45, 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
______________
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, sec. 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).
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633
submitted by the Solicitor-General.
7. Petitioners objection to th e 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 bein g used by it to re quire his presence against his will.
It should be noted that the Solicitor Generals second ground for justifying respondent commissions
reversal order requiring petitioners 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 a ppears quite clear that It is
not a trial where the d efend an t h as to in tr odu ce h is ev id en ce. It is on ly tak ing d own the state
ments of th e witn esses for the prosecution with opportunity on the part of th e 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 av ailable at the actual trial, set
aside the appellate courts decision affirming conviction therein and ruled th at the trial co urt and the
appellate court committed reversible error in admitting the perpetuated testimonies or depositions of
the two American prosecution witnesses when they were actu ally present in co urt at the time
______________
46 84 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:
x x x x x (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: x x x
634
634
of trial.
The Court thus held that:
It is clear from the rule x x x 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 t h e defendant, although of course, said failure to cross
examine may not be laid at the door of the prosecution.49
The mo st that can be said th en is that the perpetuation proceedings may be conditionally considered
part of th e trial only when the deponent-witness is at the time of trial dead or incapacitated to testify or
can not with due diligen ce be found in the Philippines. Absent any of th ese conditions, it is not a part of
the trial and the witness(es) must give their testimony anew (not their previous or perpetu ated
deposition) as the best evidence subj ect to the crucible of cross-examination.
Hence, petitioner had cause to complain against the military prosecutors ambivalent posture that In the
first day he argued we must proceed (notwithstanding the pendency before this Court of the petition
question ing the commissi ons lack of jurisdiction) because this is not part of the trial. Now, the ruling
adversely was hand ed down (allowing petitioners 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
petitioners right to to tally waive his presen ce 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 petitioners urgent pleas on April 4, 1975 to be given a period of at most sev en days to
file a written motion for reconsideration of the commissions reversal order of the same date requiring
his presence at every stage of the proceedings (estimated to last from two to three months,
______________
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.
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635
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 d one 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 up52 and su mma r ily d en
ying p etitio n ers repeated appeals . . . as fast as they were presented as graphically r eported by the
press53 would have averted trig g ering off th e hu ng er strik e 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 bein g . . . 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 Generals reply of April 11, 1975 after this Courts issuance of the restrainin g
order of April 8, 1975 suspending further proceedings by the commissionin contrast to the military
prosecutors unyielding stand incongruously branding the filing with this Court of the petition at bar and
of th e supplemental petitions as delaying tactics and dilatory moves54expressly welcome(d) any
ruling by th is Court wh ether under Presidential Decree No. 328 the presence of the accused is necessary
or indispensable. The decision of this Court upholding petitioners right of waiver vindicates petitioners
assertion before responden t mi litary commission of his right to keep silent . . . to stay alone . . . not to
participate. . .55a 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 lo
dges judicial power in the regular courts of law and not in mi litary tribunals and guarantees civilians the
benefits of a civilian court trial. To
______________
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. Daily Express, April 6, 1973.

55 April 3, 1975 t.s.n., p. 29.
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636
subject civilians to military trial just lik e 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 ti mes of civilian authority over the military.55*
In seeking to justify the substitution of the executive or military process by military co mmis sions 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, th e Solicitor General in his me morandum
has made a number of bare assertions without even any factual avermen ts or allegations in support
thereof, as follows:
Indeed, civil courts may be open and undisturbed in the execution of their functions and y et 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 sy mpathy
with the rebels, and courts their most efficient allies. (Ex parte Milligan, 4 Wall. 2, 18L. Ed. 281, 299 [Chase,
C.J., concurring.])
There may be other reasons justify ing the creation of military tribunals. Judges may be unwilling to try
the rebels out of fear or other motives.
x x x x x
In our case, study shows that Commu nist 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
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 delay ing 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
_______________
55* Art. 11, sec. 8, 1973 Constitution.
56 Solicitor-Generals memorandum, pp. 29-31.
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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 proclamat ion of judges (being) unwilling to try the
rebels out of fear or other motives or of the judges, co mp lainants 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 mi litary operations against the rebellion difficult, since those
su sp ected 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 crimina l cases that were transferred to mi litary 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 Con stitution authorizes the reorganization of the cou rts and although there still exist
areas of active rebellion in the country, on th e whole there has been such an i mproveme nt in the general
conditions obtaining in the country and in the administration of justice as to warrant th e return of some
of th e criminal c ases to th e jurisdiction of civil courts; and
These premise s of G.O. No. 49 are borne out by the data and published reports. Th e twenty (20) military
co mmi ssions (14 ambulatory and 6 regional co mmissio ns)57 hearing cases from ti me to ti me in marath
on h ear ing s as th e pressures of th e military service allow the mi litary c o mmissions to convene could
not conceivably mat ch the work and cases disposition of aroun d th ree hu nd red and twen ty (32 0)
courts of first in stan ce and circuit criminal courts all over th e country working continuously and regularly
throughout the year.
______________
57 Brig. Gen. Guillermo S. Santos, AFP JAGO Chief, Phil. Daily Express, April 26, 1975, p. 10.
638
638
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 a nd 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 ti me it takes to give effect to constitutional rights to be used as the very reason
for taking away those constitutional rights, as follows:
Delay s 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 delay s 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 th e prosecution of
criminal cases in the regular civil courts has been claimed by respondents, nor has it been shown that
military n ecessity or public danger require that petitioner be depriv ed of his rights to due process and to
the cold neutrality of an impartial tribunal under the judicial process, should the rein vestigation ordered
by the President bind him over for trial.
10. The Solicitor-Generals submittal that the decrees and orders relating to military commissions are
now part of the law
______________
58 Supra, fn. 14.

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of the land and are beyond qu estion and that as the trial and punishment of civilians by mil ita ry
tribunals under the circumstances . . . are valid and constitutional, objections based on differences
between civil and military courts are immaterial is constitutionally in firm and untenable.
The Solicitor-Generals 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
constitution59 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
Constitutions commander-in-chief clause with power to declare ma rtial law limited to exactly the sa me
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 procla mation and continuation of martial
______________
59 Solicitor-Generals memorandum, at p. 17.
60 (2) All proclamations, orders, decrees, instructions and acts promulgated, issued, or done by the
incumbent 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 supe rseded 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, sec. 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 viol ence, 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, sec. 12, 1973 Constitution and Art. VII, sec. 11 (2) 1935 Constitution).
62 42 SCRA 448, citing Sterling vs. Constantin 287 U.S. 375, 385.
640
640
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 individuals constitutional rights, within the bounds of necessity for the public ends and the public
safety, as indeed th is 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:
Of course the problem here is, if y ou 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 allo ws it to live.64
The cited Transitory Prov ision, known as the validating provision puts the imprimatur of a law upon the
Presidents acts and decrees under martial law which were not within or beyond his allocated
constitutional powers. As aptly stated by Justice Munoz 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 sta mped their approval on all the acts of the President ex ecuted 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 th at 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 Muoz Palma, it would be
incongruous that while the
_________________
63 Aquino, Jr. vs. Enrile, etc. 59 SCRA 183, 647-648.
64 Phil. Daily Express, Sept. 23, 1974.
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VOL. 63 , MAY 9 , 1975
641
acts of the regular National Assembly as the permanent repository of legislative power are subject to
judicial review, the acts of its temporary subs titute, that is, the incumbent President such as the decrees
and orders in question would be claimed to be beyond question.
Indeed, the maj ority resolu tion recognizes that Of course, from the fact that the President has th is
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 a
nd 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 estab lished 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:
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 mu st be deemed a b rogated 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 deeme d repealed thereby.
As noted in the writers previous opinions, 65 the specific legislative powers granted the incu mbent
President in section 3
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65 See writers separate opinions in Aquino, Jr. vs. Comelec, L-40004, Jan. 31, 1975 and in Gonzalez vs.
Comelec, L-40017, Feb. 22, 1975.
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(2) of the article on Transitory Provisions are limited to modifying, revoking or superseding the
incumbent Presidents validated acts and decrees done or issued prior to the proclaime d 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 sa me Article expressly
reserves to the National Assembly the power to amend, modify or repeal all existing laws not inconsistent
with this Constitu tion (which) shall remain operative. Among such existing laws whose a mendment,
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 contusion that objections
based on differences between civil and military courts are immaterial must necessarily fail.
It has been shown that respondents have failed to show the existence of some overpowering factor that
makes a recognition of petitioners 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.
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66 Sec. 8 of the Transitory Provisions above-quoted recognizes the power of the Supreme Court or the
National Assemb ly to amend, modify or repeal the Rules of Court.
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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 perse places the civilian on trial befo re a military commission in a disadvantageous
position. A cursory review of the transcripts furnished the Co urt 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 me mb ers;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 commissions law me mber automatically takes effect. The military
commission cannot pass upon such withdrawal68 in contrast to the procedure in the civilian courts
where the discharge of accused persons to be state witnesses must meet certain require ments in the in
terest of truth and justice, e.g. that the defendant (to be discharged) doess not appear to be the
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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.
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most guilty and has not at anytime 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
tr ial. 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 me mbe rs present to arrive at its summary findings of Guilty or Not
Gu ilty, without en tering 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 maj ority has resolved
to decide on the merits despite petitioners withdrawal motion call for adjudication on the basis of
enshrined principles of constitutionalism and the rule of law, as unequivocably espoused by the President
himse lf.
The case at bar asserts the right of civilians to the judicial process of civilian trials by th e regular civil
courts (particularly for pre-martial law offenses) as against the executive process of trial by military
tribunals and hinges on this Courts 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 Rig hts even in a state of martial law. A corollary principle would be th at the continuation of martial
la w for institutionalization of reforms is not incompatible with rec ogn izin g th e fund amen t al lib erties
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 freedoms guaranteed by it against the
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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
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overwhelming power of the State would be meaningless and of no use unless citizens could vindicate and
enforce them against the government officials and agen cies 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 militarys judgment here is not conclusive th at 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 Courts judgment at bar is therefore of the utmost importance since under Article 8, Civil Code,
Judicial decisions applying or in terpreting 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 th e 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 vicis situdes 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, x x x.73
While stressing that martial law . . . is a te mporary constitutional expedient of safeguarding the
Republic74 and a 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.
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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
Assn.; Times Journal issue of May 28, 1973.
74 President Marcos: Foreword, Notes on the New Society, p. vi.
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temporary phase in the development of our country75, the President has thus called for the Constitution
to remain fir m 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:
xxx xxx xxx 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 a way as a pace in the development of our country, but let the Constitution remain firm
and stab le and let institutions grow in strength from day to day, from achievement to achievement, and
so long a s 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 wreck 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, if 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 dictu m that
The Constitution x
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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 country side 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.
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x x 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 prin ciples of constitutionalism,
which bear rep roducing as they concern the issues at bar, as follows:
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human persona
lity 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 aga inst 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 bey ond the reach of
majorities and officials, and to establish them as legal pri nciples to be applied by the courts. Ones 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.82 Laski
proclaimed that the happiness of the individual, not the well-being of the State, was the criterion by
which its behaviour was to b e judged. His interests, not its power, set the limits to the authority it was
entitled to exercise.83
xxx xxx xxx
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our libertie s comes frequently not from those who consciously seek to destroy our sy
stem of government, but from men of goodwillgood men who allow their proper concerns to blind
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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; Tanada 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.
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them to the fact that what they propose to accomplish involves an impairment of liberty .
x x The motives of these men are often commendable. What we must remembe r, howe ver, is that
preservation of liberties does not depend on motives. 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 ending one.
x x The liberties of any person are the liberties of all of us.
x x In short, the liberties of none are safe unless the liberties of all are protected.
x x 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 th e cited legal auth orities, 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
submitte d that the principles of fundamental public policy enshrined in the Bill of Rights that guaran tee
to every individual due process and fair play, regardless of who he is and of whoever may be in power,
call for the gran ting of the petition and at the least for th e reinvestigation of the charges against
petitioner with utmost fairness, impartiality and objectivity as directed in Administrati ve Order No. 355
itself.
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84 A Living Bill of Rights (1961), pp. 61, 62, 64; 24 SCRA, 6 90-692; 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 alway s recognize that any code of fair play is
also a code for the less fortunate.
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Muoz Palma, J., concurs fully with the foregoing dissent and briefly explain her vote in a separate opinion.
BARREDO, J.: Concurring
I concur in the main opinion so very ably penned for the Court by our distinguished colleague, Mr. Justice
Antonio. I am writing this separate opinion not with intent to unnecessarily lend force to the cogent and
compelling considerations expounded therein but only to articulate a few thoughts I entertain relative to
certain aspects of this case which have additionally impelled me to overrule the contentions of petitioner
other than his invocation of his right to waive his presence at the proceedings being held against him. At
the outset, I would like to underscore the fact that this is the first decision of this Court regarding major
martial law issues wherein the main opinion carries the unqualified concurrence of the required number
of justices for doctrinal purposes. Since I have heretofore regretted Our failure to agree on a common
opinion that would not be subject to varying constructions, including distorted and self-motivated ones
which could be peddled around for propaganda purposes by those who for reasons of their own cannot
see anything right in the present order, it is to me a cau se of genuine satisfaction that at long last the
Court has been able to render the instant opinion and judgment, touching on important and basic
constitutional and legal featu res of the prevailing martial law administration, in a manner that leaves no
room for doubt as to the meaning and scope of Our pronounceme nts.
To be more specific, the main opinion in this case and the rulings therein contained own the full support
of at least eight members of the Court, without counting what I consider to be the close-enough-to-
concurrence posture of Mr. Ju stice Fernando, which betrays no little effort to reconcile long cherished
traditional views with the innovative and progressive juridical concepts emerging from the imperatives of
the legal character of the presently established government. In the light of the constitutional requirement
of ten (10) votes for a declaration of invalidity of any order of the President, eight negative votes is mo re
than impressive. And certainly, all the rulings in the main opinion, having as they do have the support of
those eight votes, constitu te authoritative doctrines, against
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which, the contrary views of any member of the bar should have no more than academic value. At these
times when it is best that the legal foundations of the existing government should be securely so lidified
to better and faster achieve the ends for which martial law has been proclaimed, the pronouncements of
the Court in this case should put an end to any effort to discredit the actions of this Government as being
founded only on might rather than right. Indeed, my faith is that the rule of law obtains today as it has
always obtained before, and due consideration and corresponding accommodation accorded to the
requirements of the e mergency confronting the nation do not detract in any way from the effective
supremacy of the law.
1.Petitioners motion to withdraw denied
It is a settled rule consisten t with the fitting dignity of judicial proceedings that after a case has been
submitted for decision, withdrawal of the same from the jurisdiction of the court is a matter addressed to
its sound discretion and is far from being a matter of right on the part of any of the parties. For obvious
reasons, a party shou ld not be allowed to provoke issues of far reaching interest and importance and hurl
accusations against the actuations of the adverse party, thereby creating doubts in the p ublic mind as to
th e validity of said actuations, and thereafter, upon being confronted with the defenses of his opponent
and sensing perhaps probable defeat, to just take a retreat, without expressly admit ting the infirmity of
his position, thereby making sure that he can with relative impunity continue with his critical attitude in
the manner suitable to his convenience and purposes. Observance of the laudable policy of terminating
litigations at the earliest opportunity may not be invoked when the evident result is detriment to the more
paramount objective of having a definite ruling by the Supreme Court as to what the law is in regard to
the matters of vital pub lic interest actually and properly brought to it for adjudication.
But the imperative need to settle the important issues raised in this case is not the only reason I have for
voting to deny petitioners mo tion. When petitioner was required by the Court to amplify his initial
unreasoned request to be allowed to withdraw all his petitions, motions and other incidents herein,
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his counsel submitted a letter purportedly coming from petitioner, wherein he vehemently cast aspertions
against this Court, alleging that he does not want anything from the Supreme Court, and that the whole
thing had been designed, composed and orchestrated in Malacanang and that his legal battles in the
Supreme Court are now over. Mr. Marcos is the single genius, composing and directing all the proceedings,
whether in the military tribunal or in the civil courts, and even going as far as referring to the Supreme
Court as an obstacle.
I do not believe it is under any circumstance proper for a Supreme Court to leave such accusations
unchallenged. Most likely, they could be mere uncontrollable outburst of a desperate soul which are
without judicial significance, but since it is a s likely that petitioners letter would be used as propaganda
material not only here but abroad to discredit the Philippine Government in the eyes of the world, I
consider it inevitable for the Court to proceed to dispose of the merits of petitioners case and thus let all
and sundry j udge for themselves on the basis of the Courts expressed considerations rather th an on that
of petitioners self-serving opinio n, whether or not our judiciary is what petitioner claims it to be. It is my
considered view that if a party who co mes to court has indeed any right to withdraw his case therefrom,
such withdrawal should not receive the sanction of th e court when the party tells the court that his reason
for withdrawing is because he has no confidence in its impartia lity and capacity to render justice. In such
a situation, the only recourse of the court is to prove by actually decidin g the case how just and impartial
it is.
I would like to state here emphatically that petitioners apprehensions about the danger s to the
independence of the judiciary of the Philippines at present, particularly the Supreme Court, is nothing
more than an a priori opinion and is not and cannot be supported by facts. After all, the Court does not
have to necessarily agree with everyone wh o feels that certain acts of the Government are illegal or
unconstitutional. Surely, a propensity to overrule the other departments of the Government is not the
true mark of the independence of the judicial branch. If so far, the Supreme Court has not yet declared
any impugned acts of the President or the martial law government unconstitutional, it is not because the
Court is subservient to the President in any way, but simply because, in
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the honest conviction of its me mbers, the proper case for such a declaration has not come. That the Court
can and will strike down acts of the President in the appropriate instances, there should be no doubt
whatsoever . The people can rest assured that when the proper occasions arise, the justices, individually
and collectively, will not be found wanting in wisdom and courage to act accordingly, regardless of what
might be the views and wishes of the Executive and/or any other department of the government.
At this point, it may not be amiss to say a few words respecting petitioners decision to resort to what is
being referred to as a hunger strike.
According to his letter aforementioned, the initial reason for such a step was, to quote his own words, to
protest against a procedure in tended to humiliate and dehumanize me , considering that all they w
anted was for me to be identified as a common criminal and not as a political rival. I also said that my
hunger strike was not only for myself but on behalf of many other victims of todays oppression and
injustices. Later, however, the causes thereof were broadened by him thus.
Despite my hunger strike, or probably because of it, I see with unmistakable clarity that my legal battles
in the Supreme Court are now over. Mr. Marcos is the single genius, composing and directing all the
proceedings, whether in the military tribunal or in the civil courts. This is the evil of one-man rule at its
very worst. He has destroyed the independence of the civil courts, abolished the legislature, controlled
the mass media, curtailed our cherished libertieswith the backing of the military , which, ironically ,
exists for the good of the people.
Without the Supreme Court as an obstacle, I have decided to go on my hunger strike and place my fate
and my life squarely in the hands of my accuser, prosecutor, and judgeMr. Marcos. Thus the plain, naked
truth will be made clear to our people and to the rest of the world.
As I said, my hunger strike is not for my self alone, but for the many thousands of Filipinos who are helpless
victims of the oppression and injustices of the so-called New Society . The meaning and thrust of my
struggle and sacrifice transcend the limited question of absence or presence in the proceedings before
the military tribunal.
I have therefore solemnly vowed to continue my hunger strike as a sy mbol of our peoples firm protest
against:
1. The trial of civilians before military tribunals, particularly for offenses allegedly committed by them
before
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martial law;
2. the lack of judicial independence. Trials by civil courts would still be a travesty of justice, especially in
cases where those in power, their relatives or associates, are interestedfor as long as our judges remain
casuals. They should be given permanent tenure, for their own good and for the benefit of our people
who have a vital stake in a sound administration of justice.
3. the absence of a genuine free press. Since martial law was proclaimed, I have been unfairly condemned
and vilified by the controlled newspapers and tv-radio stations. I know there are many people who have
been similarly pilloried. But a genuine free press is even more important for those who are in power. It
may free them from their arrogance, their prejudices, and their pretensions, and help them see the
injustices they have committed against their own people.
4. the further continuation of martial law and its evils and repressions. After all, Mr. Marcos has already
announced to the world that he had actually removed martial law since April, 1974. (Petitioner Aquinos
letter, pp. 4-5.)
In so far as petitioners hunger strike may be understood as an attempt to stampede the Court to render
a verdict favorable to his views, I mu st state categorically that it is subversive an d contumacious, specially
b ecause it is being admittedly done with unmistakable clarity of mind and purpose. Frankly, I am at a
loss as to what kind of procedure would suit him. In the same breadth that he professes to advocate that
every man is entitled to equal protection of the laws, he claims that he should be treated not as an
ordinary accused but as a political rival, evidently meaning, of the President. How indeed is a political
rival of the Administrator of martia l law supposed to be prosecuted for an offense committed against
the laws of the land?
Be that as it may, anyon e can easily imagine th e unmanageable situation and judicial chaos that would
result should We create a precedent wherein th e Court should yield to the demands of a person under
formal charge of committing an offense, as otherwise he would resort to a hunger strike. Nonetheless,
We were somehow disposed to lean backwards and rule interlocutorily as early as We could on the issue
as to whether or not the respo ndent Military Commission was right in comp elling petitioner to atte nd
the perpetuation proceedings and thereby place his initial cause for the hunger strike in its
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true perspective. But Our efforts to this end were met by petitioners Churchill-like reaction that what We
could possibly give was too late and too little, man ifested by his once more disauthorizing his lawyers
from henceforth speaking for him and finally seeking the withdrawal of this case from our hands. Is the
Court supposed to extend to a political rival of the President mo re than wh at the existing laws provid
e for others?
As a Filipino myself, I am ready to concede that petitioner is being actuated by what he honestly believes
to be his duty to our country and people. His abiding loyalty to his cause and his firm conviction to attain
his objectives are to me admirable. But I reject any suggestion that for the Court to uphold the legality
and constitutionality of the existing government is inimical to the national interests and ideals. I can see
that the concept of martial law presently being evolved here as well as some features of its
implementation do not conform with certain views of th e Ame rican Supreme Court and some alien
writers on the subject, but is it imperative that the Supreme Court of the Philippines should adhere to the
doctr ines laid down by alien authorities in order to be right?
Incidentally, it is becoming increasingly evident that some religious quarters as such would want their
influence felt in the resolu tion of the legal issues before Us. One does not have to dig deep into the pages
of history to learn that nations and peoples have also suffered where and when there was no separation
of the church and state as when they were under despots and autocrats. In any event, while one can
commiserate and sympathize with petitioner for the personal sufferings he has elected to undergo, I
cannot convince myself that they are in anyway comparable with the agonies of Christ at Calvary, as
seemingly, I am informed, has been somehow or seemingly suggested at a religious gathering some ti me
ago of those who share convictions with petitioner. W ith al, I am afraid that even th e mere atte mp t to
d r aw su ch a co mp ariso n cou ld b e a sin of sacrileg e and of h av in g strang e gods b efore ou r on ly
Ho ly Redeemer.
2. Military tribunals and tri als for person s who have committed offenses against the objectives of martial
law is a natural and logical concomitant of martial rule.
The legalistic and scholarly discussion in the main opinion of
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Aquino. Jr. vs. Military Commission No. 2
the issue of jurisdiction of herein respondent Military Commission No. 2 needs no amplification. I only
wish to punctualize a broader foundation for my concurrence. I have always maintained it is ele mentary,
historically and legally, that in any regime of martial la w, offenders against its obj ectives are and ought
to be tried by mili tary t ribunals in accordance with the procedure prescribed for them. To feel
apprehensive than that unless the Court upholds petitioners contention that as a civil ian he cannot be
tried by respondent commission for the crime s alleged ly committed prior to the proclamation of martia
l law, th ousands of Filipinos run the risk of being similarly hailed before military courts and deprived of
their constitutional rights to due process, is to ignore that throughout the life of all nations, when
rebellions and revolutions were mounted, no distinction has ever been drawn, among those igniting the
uprising which naturally was done before any declaration of martial law, as to whether they are civilians
or military men, for purposes of trying them before the military courts of the legitimate or victorious
government, at least, whenever prosecution has to be undertaken before the hostilities were over. And
in this connection, it may be said of more recent military tribunals trying rebels that more safeguards are
being adopted in order that the elementary requirements of due process may be surely observed by them.
Moreover, it would be a mis-conception of the true import of this decision to suppose that it may be taken
advantage of by any future government, for, as I have explained in my concurring opinion in the Habeas
Corpus cases,1 any self-restraint the Court has opted to exercise in its decisions so far rendered, from
asserting its judicial authority to interfere with the actuations of the Executive, considering it has not
found any evidence of manifest abuse of discretion or gross arbitrariness in them, does not mean the
Supreme Court has lost the power to act accordingly in appropriate cases th at may co me later. And there
being no question that Proclama tion 1081 which estab lished martial law in the Philippines is valid,2 it
necessarily follows that respondent military tribunal which has been created under it are vested
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1 Infra.
2 Aquino, et al. vs. Hon. Juan Ponce Enrile, et al., G. R. No. L-35546 and its sister cases, all promulgated on
September 17, 1974.
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with jurisdiction to try and decide petitioners cases, it appearing that the charges and specifications
against him are related to the causes that gave occasion to the Procla mation, no matter that the offenses
charged therein were committed long before the issuance of said procla mation. Otherwise, the
alternative would be to await the termination of martial law when all passions shall have subsided and
the courts could calmly and without regard to the personal feelings of the judge as to the mer its of the
rebellion make a n impartial d ecision, but that would mean the continued detention of the petitioner in
the meantime.
It is insisted, however, that since the civil courts are open, it is derogative of their constitutional authority
to sanction petitioners trial in a military commission. Such contention ignores the fundamental mission
of military courts during martial law. In any martial law situation wherein civil courts are continued, their
co-existence with military tribunals ought not to create any conflict of jurisdiction. The trial and
punishment of offenders against the established order should as a ma tter of necessity be left in the hands
of the mi litary whereas the civil courts are supposed to aid in the preservation of normal so ciety among
the non-offenders by continuing the exercise of their jurisdiction over all civil matters which have no direct
relation to the imperatives of the Proclamation. And as very well explained in the main opinion, the
constitutional requirements of due process are being complied with even in the mi litary tribunals.
In legal contemplation, there is here no diminution much less a derogation of the judicial pow er vested
by the Constitution upon the Supreme Court and other inferior courts established by law. As I made clear
in my separate opinion in the Habeas Corpus cases,3 once the Supreme Court refrains, during a national
emergency, by virtue of the discretion implicitly granted to it by the people in the Constitution, from
invalidating th e proclama t ion of martial law, because it is convinced that there has been no patent
arbitrariness in its issuance, which W e have actually done already in said cases, there can be no legal
objection to the existence of military courts for the purposes I have just indicated. And it must be so, for
it is entirely rational that military tribunals are peculiarly
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3 id.
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fit, in view of the more summary and expeditious procedure designed for their functioning, to temporarily
administer justice in the prompt and unencumbersome manner required by the exigencies of the
situation. In other words, the theater-of-war test is not truly determinative of the constitutionality of
military trials during martial law, even when martial law is proclaimed for the express purposes of
simultaneously reforming society with the suppression of the rebellion by force, to the end that the causes
therefore may not recur. Whether or not the authority of the civil courts may give way to military
jurisdiction should rather depend on the nature of the offenses committed and its relation to the
elimination of the unnecessary hindrances or obstacles to the complete restoration of order and the
attainment of the social and political objectives of the Procla mation.
3. Petitioners allegation of pre-judgment, albeit lacking in sufficient juridical persuasiveness is

nevertheless worthy of serious consideration by the authorities who can provide relief
That I am somehow impressed by petitioners contention of supposed pre-judgment of his case by the
President who has ordered the creation of the mi litary co urts and by whom their decisions are to be
reviewed for final approval is no secret. At the open hearing of this case before this Court on April 14 last,
I had occasion to ask the Solicitor General what possible impediments are there to the tran sfer of
petitioners case to the civil courts, which can rightly be done under the law. But that was, of course, far
from indicating th at I believe that indeed there could be such prejudgment. I have faith that in the
discharge of his solemn constitutionally prescribed oath to do justice to every man, President Marcos
would not be capable of wantonly discarding the inherent responsibilities of his high office, knowing as
he does that he would not be where he is were it not for the trust and confidence reposed in him by the
people when they elected him as the man who by the exercise of the immense powers given him by the
Constitution would precisely protect and defend them against injustice and oppression.
Truth to tell, the thought or suspicion of prejudgment in military justice during martial law is inevitable,
for the obvious reason that the concentration of powers in such a
658
658
situation carries with it inherently the spectacle of the army being the accuser and judge at the same time.
When it is considered, however, that military courts are generally collegiate, with each member thereof
bein g obliged to vote secretly not only on the issue of th e guilt of the accused as to each charge and
specification but separately, also on the penalty to be imposed, and that in important cases, particularly
capital ones like some of those of petitioner, their decisions are automatically subject to review and
recommendation by a number of levels of authority, such as the Chief of Staff, the Board of Review, the
Secretary of National Defense etc., each with their corresponding staff judge advocates, before reaching
the President for the final verdict, one cannot escape the conviction that mo re exacting safeguards
against any possibility of partiali ty and pre-judgment ma y not be found in the civil courts. It is entirely
wrong, unjust and unwarranted to think of all army men as having only one mind. After all, they are also
Filipinos like petitioner and counsel, and th ey cannot have less interest in and devotion to the sacred
ideals for which our common country and people exist.
Moreover, in the case at bar, the statements attributed to the President and which petitioner quotes and
ma intains are reflective of the Presidents supposed pre-judgment of his cases, viewed objectively, would
indicate at mo st only an offhand evaluation of the evidence then on hand, without regard to the other
evidence now in possession of the prosecution, and without counting those which petitioner will present
on his behalf, and does not necessarily amount to a pronouncement of guilt. As such, therefore, they do
not sufficiently prove what the judgment of the Presiden t would be after the whole evidence of
petitioners cases shall have been exa mined and evaluated by him. In other words, from the strictly legal
poin t of view of petitioners pose about denial of due process to him by reason of prejudgment lacks
persuasiveness.
Legal standards aside, however, it is immensely reassuring that the President has announced that as soon
as the present perpetuation proceedings are terminated, he will consider the advisability of transferring
the cases in question to the civil courts. Should that be done, and I have no reason for believing that it will
not be so done, it will not only be that petitioner will be relieved of a great degree of mental torture, but,
as
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importantly if not more so, the President shall have given th e nation eloquent proof not so much of his
nobility as of his determination not to allow the decision in the cases of petitioner to be in any manner
tainted by the slightest suspicion of any personal feeling or opinion on his part. And I have no fears at all
that others who are also similarly charged before military commissions will demand the sa me treatme
nt, thereby subverting the whole system of crime prosecution under martial law I have earlier adverted
to , for in the particular case of petitioner, there is the singular circumstan ces that the President has made
statements which have some relevance to his cases, which it does not appear has been done in those of
the others. Besides, under General Order No. 49, the President has already transferred the ma ss of th e
cases against civilians to the civil courts. Briefly then , while I hold th at there is nothing constitutionally
wrong with having petitioner tried by a military tribunal, it is my conviction that it is preferable from all
other points of view that his cases be transferred to the civil courts, and not because in fact he will not
get justice from the former, but because he will have more peace of mind in the latter and the people will
be spared every doubt as to whether or not the slightest element of partiality or bias has crept into one
of th e mo st i mportant trials in the current history of our country. But, of course, it is not within the ambit
of the authority of even the Court itself, much less this writer, to direct the Presidents exercise of the
powers vested in him by the Constitution; so, all that I can do is to voice th e faith and hope that the
President may not encounter any further obstacle to his actually ordering the transfer of petitioners cases
to the civil courts in accordance with his afformentioned public announce ment, the sooner the better.
4. Petitioner has the right to waive his presence at the perpetuation proceedings before the respondent
Commission.
As I stated earlier, what really seems to have initially provoked petitioners decision to go on some kind
of a hunger strike was the respondent Commissions turnabout in regard to the issue of whether or not
he can waive his presence during the perpetuation proceedings before it. After ruling at first th at he had
such righ t, subsequently, upon mo tion for reconsideration of the prosecution, the Commission reversed
660
660
itself and ruled that his presence is indispensable an d can thus be secured compulsorily. But if such action
of the respondent commission is the cause of petitioners hunger strike, as he had stated at the beginning,
he may now desist from continuing with his rather perilous posture. All the me mbers of the Court
participating in this case are agreed that the ruling in People vs. Avancea4 relied upon by the prosecution
should be at least modified, if not completely overturned. Six of us, namely, Justices Fernando, Teehankee,
Antonio, Muoz Palma, Aquino an d th is writer are of th e v iew th at petitioner, although under detention
and charged with a capital offense, has the right to absent himself-at any stage of the trial, while the other
five Justices, namely, Justices Castro, Makasiar, Esguerra, Concepcion Jr. and Martin, believe also that that
right ex ists subject however to the qualification that it cannot be invoked whenever his presence is
needed for iden tification purposes. Accordingly, it is entirely up to the petitioner whether or not to attend
the perpetuation proceedings now going on except when he is to be identified by the witnesses on the
stand and only for just the time needed for that exclusive purpose.
Speaking for myself, I find emin ent merit in th e contention of petitioner that even for id entification
purposes he cannot be made to be present at the trial ag ainst his will. Since under the Constitution, trial
of criminal cases in the absence of the accused is allowed, when after the arraignment and inspite of due
notice he fails to appear without justification, pursuant to Section 19 of the Bill of Rights or Article IV, I
cannot see why an accused who does not want to undergo the experience of being repeatedly pointed to
and of being the target of the curious eyes of the public, cannot elect to leave the defense of his case and
of his rights to his counsel in his absence or even put himself c ompletely a t the mercy of the court, secure
in the thought that it is an yway the inescapable duty of the j udge not to allow anything illegal or inhuman
to be done to him.
I can understand why an accused has to be present at the arraignment and at the reading of the sentence.
In the former, it has to be known to the court that he is indeed the person charged and that he personally
understands the accusation against him. More importantly, the plea must be entered by him personally
to avoid any misconstruction or
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4 31 O.G. 713 (1933).
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VOL. 63, MAY 9, 1975
661
misrepresentation, innocent or otherwise. In the latter, it is essential that the accused himself should be
aware fro m personal knowledge what is the verd ict of the court, and if it be conviction, what is the
penalty to be served by him. These are matters too personal to permit delegation. At the same time, his
presence makes it simpler in the public interest for the authorities to enforce execution of any adverse
judgment. But I cannot see why an accused should be compelled to be present at the trial when he prefers
perhaps the solitude of his cell to pray either for forgiveness, if he k nows he is guilty, or, if he is innocent,
for God to illumine the court so there would be unerring justice in his case.
My understanding is that the problem of id entification of an accused may be adequately solved without
violating the justified wishes of the accused to be left alone. To start with, if he is referred to by the
witnesses of the prosecution by name, the co urt ma y presume that the accu sed w ho h as ack now ledg
ed his true name at the arraignment is the one indicated. This Court ruled unequivocally more than sixty-
five years ago in U.S. vs. Adolfo, 12 Phil. 296, and reiterated it in People vs. Santos, 53 Phil. 863, twenty
years later, and there has been no contrary opinion since then, that the rebuttable presumption of identity
of person is applicable not only in civ il case s but also to the identification of the accused in criminal cases.
To my mind, there is absolutely no need that th e accused be personally identified by the court while the
inculpating witness is testifying, where the accused voluntarily waives his presence and even suggests to
the court, as petitioner has done, to avail of the legal presumption just mentioned. (See Sec. 5 (w), Rule
131.)
Of course, it is to be underscored that the presumption is juris tantum. Thus, the waiver of the presence
of the accused at the trial does not preclude him from presenting evidence to overcome the presumption.
I admit that the ensuing situation may pose problems for the prosecution, but where in the democratic
world is the accused supposed to lend his hand in order to make it that mu ch easier for th e court to
convict him. Our fundamental law, no less than the rudimentary rules of fair play, expressly enjoins that
the accused may not be comp elled to incriminate himself. I ta ke such injunction to be consistent with
mans in alienable right to be treated with the dignity of a human being and it therefore extends to any
and all
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662
forms of ma king the accused aid the prosecution in proving its case.
It is claimed that the state has the unquestionable right and duty to see to it that the accused is not
convicted unless he is duly identified. To the wisdom and nobility of such proposition, I must say a men.
But I maintain that it is an incongruity in principle to predicate on such a just premise the conclusion that
the state ma y compel the accused to assist it by exhibiting himself for purposes of identification. I am
aware of precedents to the effect that the compulsion against self-incrimination prohibited by the Bill of
Righ ts does not contempla te acts required of the accused which do not involve the employment of his
intellect. In other words, he cannot be made to produce evidence against himself, but he can be compelled
to perform mechanical acts conducive to that end. But I do not see any analogy between the facts in those
precedents and the case at bar, and, in any event, I do not see the justice and fairness of those precedents.
As far as I am concerned, the prosecution must prove its case by its own effort and with its own resources
and should not be permitted to depend on the accused for anything that will help it secure his conv iction.
I know that the Constitution has placed emphasis on the duties and obligations of persons in the
Philippines equally with the Bill of Rights, but nowhere in those pertinent provisions in Article V do I
discern any duty or obligation on the part of an accused to help the prosecution in having himself
identified by the witnesses of the state.
After having been in continuous practice at the bar for more than three decades before joining the Court,
I should know that the almost invariable procedure practiced in the identification of accused persons at
the trial is in a sense impractical, if not farcical. As the cases are called from the calendar, the accused are
made to stand and evidence their presence within the view of everybody in the courtroo m including th e
witnesses of the prosecution. Rare is the occasion when necessary precautions are taken at the in itiative
of meticulous defense lawyers to prevent the witnesses from seeing the accused as they answer the
calling of the calendar. My po int is that any quibbling about the proper identification of the accused by
compelling his presence at the trial may not be worth the irreparable injury to human dignity that can be
caused by bodily and forcibly taking the accused from his place of confinement to the place of trial
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663
in the event he insists on his pose that he is agreeable anyway that the presump tion on identities I have
referred to be applied to his case.
In the precedents relied on by th e prosecution, it is held that inasmuch as the accused is under detention,
his person is subject to the disposition of the court before whom he is charged. I disagree. My position on
this point is that his detention is only for the purpose of securing the execution of the judgment in the
eventuality of conviction and for no other purpose derogative of his freedom to waive his personal rights
related to the procedure of his trial. His constitutional rights to be heard by himself or counsel, to be
informed of the nature and cause of the accusation against him, to have a speedy and public trial, to mee
t the witnesses face to face and to have compulsory process to secure the attendance of witnesses and
the production of witnesses on his behalf (Section 19, Art. IV) including those not to be compelled to be
a witness against himself . . . to remain sile nt and not to be subjected to force, violence, threat,
intimidation, or any other me ans which vitiates (his) free will (Sec. 20, id.) and even that of not being
twice put in jeopardy of punishment for the same offense (Sec. 22, id.) may be waived by him provided
the waiver is made properly. As I see it, the right to be present at the trial is mo re or less the composite
of these rights I have enumerated. Since all of them separately are waivable, why may not the waiver of
all of them be done wholesale, so to speak, as long as the waiver is clearly and voluntarily manifested to
the court. Above all, I consider the right of an accused to human dignity to be more precious than all his
other rights, hence I cannot see the point in compelling the accused to sacrifice his human dignity for the
sake of enabling the prosecution to identify him in person when the same end can as well be legally
attained without exacting from him such sacrifice.
Sustaining as I do sustain the right of petitioner to absent himself at the trial proper, it is unnecessary for
me to discuss whether or not the perpetua tion proceedings constitute part of the trial. I must make it
clear, however, than even if We were to hold that th ey are part of the tr ial proper, I insist that if the
witnesses who have testified or will testify at the perpetuation proceedings should be available when th
e trial actually takes place, it is the right of the accused to have them recalled and to be examined further
and even anew in the sound discretion of
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664
the trial court. Presidential Decr ee 328, paragraph 2, amending subparagraph 4 b (7) of Presidential
Decree No. 39 is to be so construed, in th e in terest of fairness and justice.
As I close this concurren ce, two thoughts continuously recurring in my mind during its preparation keep
urging articu latio n . Th e first is that to co mmit suicide is prohibited by the laws of God and man. No one
has the right to take his life for any reason. Withal, leadership in any field of human endeavor creates a
responsibility that knows no surcease for any kind of convenience. Perseverance of purpose to be of real
significance and worth requires ones survival. The future is inscrutablethe hand of fate guides only
those who bide their time and do not despair before the designed moment comes. Thus, it could yet be a
crime also against the interests of our country and people to indulge in self-destruction when one knows
that he has talents and attributes that can be offered for the attainment of the national destiny.
The second concerns the Supreme Court whose independence of conviction it is the bounden duty of
every Filipino to keep unsullied. The unkindest thing of all is for those to whom you concede the loftiest
of motives to impugn recklessly your own. The unceasing quest for the achievement of the national goal
naturally divides men in all democracies into groups each composed of those sharing common views and
feelings as to how to make the country succeed earlier in realizing its ideals. Such disparity, however,
cannot produce disunity, as long as everyone involved because of official duty or choice trusts the good
faith of the other.
For the members of the Court to happen to coincide in legal views with th e Executive is not servility.
Neither should it be considered evidence of any meas ure of orchestration or common planning. As a
matter of fact, there has never been any such thing. The best proof is that, as I have emphasized at the
outset, th is is the first martial law case in which the requ ired maj o rity fo r doctrin al pu rposes h as b
een attain ed. Where then is the alleged orchestration? And how could the charge have basis in the face
of the undeniable happenstance that no martial law or constitutional decision has yet come out from the
Court without vigorous and extensive dissents of notable consistency. Indeed, occasions there have been
when one or two more votes became imperative for a more effective and conclusive ruling, and no one
can say that anybody
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concerned received dictation as to what to do. Of my own knowledge, I bear witness that not even a finger
has been lifted in any manner against any of the dissenters.
As of now, the Court has not found enough cause to hold any of the Presidents actuations submitted for
Our scrutiny to have overstepped constitutional bounds. It is evident that due care is being taken to avoid
fault in this respect. I can imagine no reason why and no occasion when such effort will ever be relaxed
at all. More so in the earnest vigil by the Supreme Court.
MUOZ 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 lette r of Benigno Aquino, Jr. of April 14, 1975, addressed to his wife, child ren, relatives, and
friends submitted to the Court and now part of the record of the case (see page 7 of Justice Teehankees
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 Ca se
I vote to grant the Petition for Proh ibition because, brushing aside the personalities of the parties
involved, that is, the fact that Benigno Aquino, Jr. was a me mber 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 notwithstanding martial rule, I am called upon at this mo me nt to lay down a principle of law
which will decide the fate, not only of the presen t generation but also that of Filipinos still to be born. Fo
r the main question now at stakewhether or not military tribunals can try and render a verdict on
civilians for offenses allegedly committed before or
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666
even during martial rule, notwithstanding the fact that civil authority is supreme and civil courts are
existing and functioning under the Constitu tionraises before my eyes the gruesome spectre of one, a
hundred, a thousand civilian Filipinos bein g 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 safegu ards attendant to a trial by civil courts (see pages 11-13 of Ju stice
Teehankees 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 th e Constitution and, as quoted by Justice Teehankee,
believes in the protection of the Bill of Rights (see page 32 of Justice Teehankees Opinion). But what
about to morrow, and the day after tomo rrow, 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.
Petitions dismissed.
o0o Aquino, Jr. vs. Military Commission No. 2, 63 SCRA 546, No. L-37364 May 9, 1975
332
Tabuena vs. Sandiganbayan
G.R. Nos. 103501-03. February 17, 1997.*
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN, and THE PEOPLE OF THE PHILIPPINES,
respondents.
G.R. No. 103507. February 17, 1997.
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First Division), and THE PEOPLE OF THE
PHILIPPINES, represented by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.
Criminal Law; Malversation; Criminal Procedure; Right to be Informed; Malversation is committed either
intentionally or by negligence and even if the mode charged differs from the mode proved, the same
offense of malversation is involved and conviction thereof is proper.We do not agree with Tabuena and
Peralta on this point. Illuminative and controlling is Cabello v. Sandiganbayan where the Court passed
upon similar protestations raised by therein accused-petitioner Cabello whose conviction for the same
crime of malversation was affirmed, in this wise: x x x even on the putative assumption that the evidence
against petitioner yielded a case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first mode of misappropriation
would still be in order. Malversation is committed either intentionally or by negligence. The dolo or the
culpa present in the offense is only a modality in the perpetration of the felony. Even if the mode charged
differs from the mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
Same; Same; Same; Same; While a criminal negligent act is not a simple modality of a willful crime, but a
distinct crime, designated as a quasi-offense in the Penal Code, it may however be said that a conviction
for the former can be had under an information exclusively charging the commission of a willful offense,
upon the theory that the greater includes the lesser offense.In Samson vs. Court of Appeals, et al., we
held that an accused charged with willful or intentional
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* EN BANC.
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VOL. 268, FEBRUARY 17, 1997
333
falsification can validly be convicted of falsification through negligence, thus: While a criminal negligent
act is not a simple modality of a willful crime, as we held in Quizon vs. Justice of the Peace of Bacolor, G.R.
No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated as a quasi offense in our Penal
Code, it may however be said that a conviction for the former can be had under an information exclusively
charging the commission of a willful offense, upon the theory that the greater includes the lesser offense.
This is the situation that obtains in the present case. Appellant was charged with willful falsification but
from the evidence submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with criminal intent but
merely failed to take proper and adequate means to assure himself of the identity of the real claimants
as an ordinary prudent man would do. In other words, the information alleges acts which charge willful
falsification but which turned out to be not willful but negligent. This is a case covered by the rule when
there is a variance between the allegation and proof, and is similar to some of the cases decided by this
Tribunal.
Same; Same; Good faith is a valid defense in a prosecution for malversation for it would negate criminal
intent on the part of the accused.Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal intent on the part of the accused.
Thus, in the two (2) vintage, but significant malversation cases of US v. Catolico and US v. Elvia, the
Court stressed that: To constitute a crime, the act must, except in certain crimes made such by statute,
be accompanied by a criminal intent, or by such negligence or indifference to duty or to consequences as,
in law, is equivalent to criminal intent. The maxim is actus non facit reum, nisi mens sit reaa crime is not
committed if the mind of the person performing the act complained of is innocent.
Same; Same; Justifying Circumstances; Obedience to Lawful Order of Superior; As a recipient of a directive
coming from the highest official of the land no less, good faith should be read on a subordinate
government officials compliance, without hesitation nor any question, with said order.In so far as
Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum, we are
swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by reason
of such memorandum.
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334
From this premise flows the following reasons and/or considerations that would buttress his innocence
of the crime of malversation. First, Tabuena had no other choice but to make the withdrawals, for that
was what the MARCOS Memorandum required him to do. He could not be faulted if he had to obey and
strictly comply with the presidential directive, and to argue otherwise is something easier said than done.
Marcos was undeniably Tabuenas superiorthe former being then the President of the Republic who
unquestionably exercised control over government agencies such as the MIAA and PNCC. In other words,
Marcos had a say in matters involving inter-government agency affairs and transactions, such as for
instance, directing payment of liability of one entity to another and the manner in which it should be
carried out. And as a recipient of such kind of a directive coming from the highest official of the land no
less, good faith should be read on Tabuenas compliance, without hesitation nor any question, with the
MARCOS Memorandum. Tabuena therefore is entitled to the justifying circumstance of Any person who
acts in obedience to an order issued by a superior for some lawful purpose. The subordinate-superior
relationship between Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained
in the MARCOS Memorandum, as it has for its purpose partial payment of the liability of one government
agency (MIAA) to another (PNCC).
Same; Same; Same; Same; Even if the order is illegal if it is patently legal and the subordinate is not aware
of its illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in
good faith.Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its
illegality, the subordinate is not liable, for then there would only be a mistake of fact committed in good
faith. Such is the ruling in Nassif v. People.
Same; Same; Same; Same; The subordinate who, in following an order of a superior, failed to observe all
auditing procedures of disbursement, cannot escape responsibility for such omission but where he acted
in good faith, his liability should only be administrative or civil in nature, not criminal.But this deviation
was inevitable under the circumstances Tabuena was in. He did not have the luxury of time to observe all
auditing procedures of disbursement considering the fact that the MARCOS Memorandum enjoined his
immediate compliance with the directive that he forward to the Presidents Office the P55 Million in
cash. Be that as it may, Tabuena surely cannot escape responsibility for such omission. But
335
335
since he was acting in good faith, his liability should only be administrative or civil in nature, and not
criminal.
Same; Same; Same; Same; The good faith of a subordinate in having delivered the money to the
Presidents office, in strict compliance with the Presidents memorandum, is not at all affected even if it
later turns out that the intended payee never received the money.It must be stressed that the MARCOS
Memorandum directed Tabuena to pay immediately the Philippine National Construction Corporation,
thru this office, the sum of FIFTY FIVE MILLION . . . ., and that was what Tabuena precisely did when he
delivered the money to Mrs. Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos secretary then. Furthermore, Tabuena had reasonable
ground to believe that the President was entitled to receive the P55 Million since he was certainly aware
that Marcos, as Chief Executive, exercised supervision and control over government agencies. And the
good faith of Tabuena in having delivered the money to the Presidents office (thru Mrs. Gimenez), in
strict compliance with the MARCOS Memorandum, was not at all affected even if it later turned out that
PNCC never received the money.
Same; Same; Conspiracy; No criminal liability can be imputed to a subordinate who, pursuant to the
Presidents directive, delivers money which is subsequently malversed where no conspiracy is established
between him and the real embezzlers.Even assuming that the real and sole purpose behind the
MARCOS Memorandum was to siphon-out public money for the personal benefit of those then in power,
still, no criminal liability can be imputed to Tabuena. There is no showing that Tabuena had anything to
do whatsoever with the execution of the MARCOS Memorandum. Nor is there proof that he profited from
the felonious scheme. In short, no conspiracy was established between Tabuena and the real embezzler/s
of the P55 Million. In the cases of US v. Acebedo and Ang v. Sandiganbayan, both also involving the
crime of malversation, the accused therein were acquitted after the Court arrived at a similar finding of
non-proof of conspiracy.
Same; Same; Compliance to a patently lawful order is rectitude far better than contumacious
disobedience.This is not a sheer case of blind and misguided obedience, but obedience in good faith of
a duly executed order. Indeed, compliance to a patently lawful order is rectitude far better than
contumacious disobedience. In the case at
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bench, the order emanated from the Office of the President and bears the signature of the President
himself, the highest official of the land. It carries with it the presumption that it was regularly issued. And
on its face, the memorandum is patently lawful for no law makes the payment of an obligation illegal. This
fact, coupled with the urgent tenor for its execution constrains one to act swiftly without question.
Obedientia est legis essentia.
Same; Same; Due Process; Criminal Procedure; An appeal in a criminal case throws the whole case open
to review, and it becomes the duty of the appellate court to correct such errors as may be found in the
judgment appealed from whether they are made the subject of assignments of error or not.But what
appears to be a more compelling reason for their acquittal is the violation of the accuseds basic
constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs
words, is more important than securing a conviction based on a violation of the rights of the accused.
While going over the records, we were struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised
this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for
a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed
from whether they are made the subject of assignments of error or not.
Same; Same; Same; Words and Phrases; Confrontation, Probing, and Insinuation, Explained.
Confrontation.Confrontation consists of confronting the witness with damaging facts which he cannot
deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails to destroy
it may still succeed in weakening. Probing.Probing consists of inquiring thoroughly into the details of
the story to discover the flaws. Insinuation.Insinuation consists of leading or forcing the witness by
adding facts at one point and modifying details at another, to give a version of his evidence which is more
favorable to the other side. The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-
92.
Same; Same; Same; Judges; The cold neutrality of an impartial judge requirement of due process is
certainly denied the accused
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when the court assumes the dual role of magistrate and advocate.This Court has acknowledged the
right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides. But not only should his examination be
limited to asking clarificatory questions, the right should be sparingly and judiciously used; for the rule
is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct
of the trial. Here, these limitations were not observed. Hardly in fact can one avoid the impression that
the Sandiganbayan had allied itself with, or to be more precise, had taken the cudgels for the prosecution
in proving the case against Tabuena and Peralta when the Justices cross-examined the witnesses, their
cross-examinations supplementing those made by Prosecutor Viernes and far exceeding the latters
questions in length. The cold neutrality of an impartial judge requirement of due process was certainly
denied Tabuena and Peralta when the court, with its overzealousness, assumed the dual role of magistrate
and advocate.
Same; Same; Same; Supreme Court; Constitutional Law; As between a mere apprehension of a dangerous
precedent and an actual violation of constitutionally enshrined rights, it is definitely the latter that merits
the Supreme Courts immediate attention.Furthermore, as between a mere apprehension of a
dangerous precedent and an actual violation of constitutionally enshrined rights, it is definitely the
latter that merits our immediate attention. For the most dangerous precedent arises when we allow
ourselves to be carried away by such fears so that it becomes lawful to sacrifice the rights of an accused
to calm the fearful. In our eagerness to bring to justice the malefactors of the Marcos regime, we must
not succumb to the temptation to commit the greatest injustice of visiting the sins of the wrongdoers
upon an innocent.
DAVIDE, JR., J., Dissenting:

Due Process; Judges; The trial judges in this jurisdiction are judges of both the law and the facts, and they
would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result
of a failure to propound a proper question to a witness which might develop some material fact upon
which the judgment of the case should turn.There is no showing at all that the extensive participation
by the Justices of the Sandiganbayan in questioning the appellants and their witness indicated
prejudgment
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of guilt, bias, hatred, or hostility against the said appellants. On the contrary, the quoted portions of the
questions propounded by the Justices manifest nothing but a sincere desire to ferret out the facts to arrive
at the truth which are crucial in the determination of the innocence or guilt of the appellants. These
Justices, as trial magistrates, have only exercised one of the inherent rights of a judge in the exercise of
judicial function. What this Court stated eighty-three years ago in United States v. Hudieres needs
repeating: It is very clear, however, from a review of the whole proceedings that the only object of the
trial judge in propounding these questions was to endeavor as far as possible to get at the truth as to the
facts to which the witnesses were testifying. The right of a trial judge to question the witnesses with a
view to satisfying his mind upon any material point which presents itself during the trial of a case over
which he presides is too well established to need discussion. The trial judges in this jurisdiction are judges
of both the law and the facts, and they would be negligent in the performance of their duties if they
permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which
might develop some material fact upon which the judgment of the case should turn. So in a case where a
trial judge sees that the degree of credit which he is to give the testimony of a given witness may have an
important bearing upon the outcome, there can be no question that in the exercise of a sound discretion
he may put such questions to the witness as will enable him to formulate a sound opinion as to the ability
or willingness of the witness to tell the truth.
Same; Same; Waiver; Rights may be waived unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or is prejudicial to a third person with a right recognized by law.Even granting
arguendo that the conduct of the Justices constituted such a violation, the appellants are forever estopped
from raising that issue on ground of waiver. This Court would risk an accusation of undue partiality for the
appellants were it to give them premium for their torpor and then reward them with an acquittal. Such
waiver is conclusively proven in these cases. From the quoted portions of the testimonies of the witnesses
for the appellants, it is clear that their counsel did not object to, or manifest on record his misgivings on,
the active participation of the Justices in the examination (or cross-examination) of the witnesses. Nothing
could have prevented the counsel for the appellants from doing so. Then, too, as correctly pointed out in
the ponencia, they made no assignment of error on the matter. In our jurisdiction, rights may be waived
unless
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the waiver is contrary to law, public order, public policy, morals, or good customs, or is prejudicial to a
third person with a right recognized by law.
Same; Same; Same; I submit that the right to an impartial trial is waivable.In the cases below, the
perceived violation, if at all it existed, was not of the absolute totality of due process, but more
appropriately of the right to an impartial trial, which is but an aspect of the guarantee of due process. I
submit that the right to an impartial trial is waivable.
Criminal Law; Malversation; Justifying Circumstances; Obedience to Lawful Order of Superior; When then
President Marcos ordered immediate payment, he should not have been understood as to order
suspension of the accepted budgeting, accounting, and auditing rules on the matterhe must only be
understood to order expeditious compliance with the requirements to facilitate immediate release of the
money.Being responsible accountable officers of the MIAA, they were presumed to know that, in light
of the undeferred portion of the repayment of PNCCs advances in the amount of P63.9 million, the
MIAAs unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in
the payment of contractual obligations. First and foremost there were the submission by the PNCC of its
claims with the required supporting documents and the approval of the claims by the appropriate
approving authority of MIAA. When then President Marcos ordered immediate payment, he should not
have been understood as to order suspension of the accepted budgeting, accounting, and auditing rules
on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he
was reported to be, and even projected himself as, a faithful advocate of the rule of law. As a matter of
fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation
of any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to
order expeditious compliance with the requirements to facilitate immediate release of the money. There
was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness
or delay in the execution of the order due to compliance with the requirements would cause his head or
life. He offered no credible evidence for such fear. This Court should not provide one for him. That
Tabuena served Mr. Marcos until the end of the latters regime and even
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beyond only proved a loyalty not based on fear but on other considerations.
ROMERO, J., Dissenting:
Criminal Law; Malversation; It is one thing to be ordered to pay a due and demandable obligation, it is
another to make such payment to someone other than the lawful obligee and worse, when the
subordinate is forced to breach official channels to comply with the order.In the case at bar, Tabuena
was allegedly ordered by President Marcos to pay the PNCC from MIAAs fund, thus ostensibly meeting
the first requirement but not the others. For there is a qualification which significantly changes the
picture. The payment was to be in cash and immediately made through the Office of the President. It is to
be pointed out that it is one thing to be ordered to pay a due and demandable obligation; it is another to
make such payment to someone other than the lawful obligee and worse, when the subordinate is forced
to breach official channels to comply with the order.
Same; Same; Judgments; Dissenting Opinions; The corroborative value of a dissenting opinion is
minimalprecisely, it supports a position contrary to, and obviously unacceptable to the majority.The
ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines v.
Pandogar to uphold his ponencia. Need we remind our respected colleague that the corroborative value
of a dissenting opinion is minimal? Precisely, it supports a position contrary to, and obviously
unacceptable to the majority.
Same; Same; The Sandiganbayans finding that the accused converted and misappropriated the P55
million cannot simply be brushed aside upon the accuseds claim that the money was delivered in good
faith to the Office of the President under the mistaken assumption that the President was entitled to
receive the same.The Sandiganbayans finding that petitioners converted and misappropriated the P55
million cannot simply be brushed aside upon petitioners claim that the money was delivered in good faith
to the Office of the President under the mistaken assumption that the President was entitled to receive
the same. They rely on the case of People v. Fabian, which declared that (g)ood faith in the payment of
public funds relieves a public officer from the crime of malversation. But the very same decision also cites
Article 217 to the effect that
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malversation may be committed by an accountable public officer by negligence if he permits any other
person to take the public funds or property in his custody. It is immaterial if petitioners actually converted
or misappropriated MIAAs funds for their own benefit, for by their very negligence, they allowed another
person to appropriate the same.
Administrative Law; Public Officers; Accountability of Public Officers; Rank may have its privileges but
certainly a blatant disregard of law and administrative rules is not one of themit must be etched in the
minds of public officials that the underside of privileges is responsibilities.The fact that no conspiracy
was established between petitioners and the true embezzlers of the P55 million is likewise of no moment.
The crime of malversation, as defined under Article 217 of the Code, was consummated the moment
petitioners deliberately turned over and allowed the Presidents private secretary to take custody of
public funds intended as payment of MIAAs obligations to the PNCC, if obligation there was at all. That
petitioner Tabuena who was then General Manager of MIAA personally and knowingly participated in the
misfeasance compounds the maleficence of it all. Rank may have its privileges but certainly a blatant
disregard of law and administrative rules is not one of them. It must be etched in the minds of public
officials that the underside of privileges is responsibilities.
Courts; Judges; Due Process; The true test for the appropriateness or inappropriateness of court queries
is not their quantity but their quality, that is, whether the defendant was prejudiced by the trial courts
actions.The numerous questions asked by the court a quo should have been scrutinized for any possible
influence it may have had in arriving at the assailed decision. The true test for the appropriateness or
inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant
was prejudiced by such questioning. To repeat, petitioners did not feel prejudice by the trial courts
actions; otherwise, they would have raised this issue in the instant petition.
PUNO, J., Dissenting:
Criminal Law; Doctrine of Mistake of Fact; This Court has never applied the doctrine of mistake of fact
when negligence can be imputed to the accused.For the same reason, the majority cannot rely on the
doctrine of mistake of fact as ground to acquit petitioners. It found as a fact that x x x Tabuena acted
under the honest belief
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that the P55 million was a due and demandable debt x x x. This Court has never applied the doctrine of
mistake of fact when negligence can be imputed to the accused. In the old, familiar case of People vs. Ah
Chong, Mr. Justice Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact
is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense
charged (e.g., in larceny animus furandi, in murder, malice, etc.), cancels the presumption of intent and
works an acquittal, except in those cases where the circumstances demand a conviction under the penal
provisions touching criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy
as a robber and the evidence showed that his mistake of fact was not due to negligence. In the case at
bar, the negligence of the petitioners screams from page to page of the records of the case. Petitioners
themselves admitted that the payments they made were out of the ordinary and not based on normal
procedure.
Same; Constitutional Law; Justifying Circumstances; Obedience to Lawful Order of Superior; President;
One of the gospels in constitutional law is that the President is powerful but is not more paramount than
the law, and in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to
any man.In effect, petitioners shocking submission is that the President is always right, a frightening
echo of the antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the
majority has validated petitioners belief that the President should always be obeyed as if the President is
above and beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of
faith. One of the gospels in constitutional law is that the President is powerful but is not more paramount
than the law. And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not
loyalty to any man. Let us not bid goodbye to these sacrosanct principles.
PANGANIBAN, J., Dissenting:
Criminal Law; Justifying Circumstances; Obedience to Lawful Order of Superior; The defense of obedience
to a superiors order is already obsolete.The defense of obedience to a superiors order is already
obsolete. Fifty years ago, the Nazi war criminals tried to justify genocide against the Jews and their other
crimes against humanity by alleging they were merely following the orders of Adolf Hitler, their adored
fuehrer. However, the International Military
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Tribunal at Nuremberg in its Judgment dated October 1, 1946, forcefully debunked this Nazi argument
and clearly ruled that (t)he true test x x x is not the existence of the order but whether moral choice was
in fact possible.
Same; Same; Allowing the petitioners to walk deprives this Court of the moral authority to convict any
subaltern of the martial law dictator who was merely following orders.Resurrecting this
internationally discredit Nazi defense will, I respectfully submit, set a dangerous precedent in this country.
Allowing the petitioners to walk deprives this Court of the moral authority to convict any subaltern of the
martial law dictator who was merely following orders. This ludicrous defense can be invoked in all
criminal cases pending not only before this Court but more so before inferior courts, which will have no
legal option but to follow this Courts doctrine.
PETITIONS for review of a decision of the Sandiganbayan.
The facts are stated in the opinion of the Court.
Siguion Reyna, Montecillo & Ongsiako for Luis A. Tabuena.

Estebal & Associates Law Firm for Adolfo M. Peralta.
The Solicitor General for respondents.
FRANCISCO, J.:
Through their separate petitions for review,1 Luis A. Tabuena and Adolfo M. Peralta (Tabuena and Peralta,
for short) appeal the Sandiganbayan decision dated October 12, 1990,2 as well as the Resolution dated
December 20, 19913
____________________________
1 Taken under Section 7 of P.D. 1606, as amended (the Sandiganbayan Law), Section 1, Rule XIX of the
Revised Rules of the Sandiganbayan and Rule 45 of the Rules of Court. The petitions were ordered
consolidated by the Court in an En Banc Resolution dated October 1, 1992.
2 Promulgated on October 22, 1990; Rendered by the First Division then composed of Justices
Garchitorena (ponente), Hermosisima (now Associate Justice of this Court) and Del Rosario.
3 Promulgated on January 10, 1992.
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denying reconsideration, convicting them of malversation under Article 217 of the Revised Penal Code.
Tabuena and Peralta were found guilty beyond reasonable doubt of having malversed the total amount
of P55 Million of the Manila International Airport Authority (MIAA) funds during their incumbency as
General Manager and Acting Finance Services Manager, respectively, of MIAA, and were thus meted the
following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum to twenty (20)
years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer the penalty of
imprisonment of seventeen (17) years and one (1) day of reclusion temporal as minimum, and twenty (20)
years of reclusion temporal as maximum, and to pay a fine of TWENTY-FIVE MILLION PESOS
(P25,000,000.00), the amount malversed. He shall also reimburse the Manila International Airport
Authority the sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta are each sentenced to
suffer the penalty of imprisonment of seventeen (17) years and one (1) day of reclusion temporal as
minimum and twenty (20) years of reclusion temporal as maximum and for each of them to pay separately
a fine of FIVE MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse jointly
and severally the Manila International Airport Authority the sum of FIVE MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification from public office.
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A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then Assistant General Manager of MIAA,
has remained at large.
There were three (3) criminal cases filed (Nos. 11758, 11759 and 11760) since the total amount of P55
Million was taken on three (3) separate dates of January, 1986. Tabuena appears as the principal
accusedhe being charged in all three (3) cases. The amended informations in criminal case Nos. 11758,
11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent thereto, in the City of
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and
Gerardo G. Dabao, both public officers, being then the General Manager and Assistant General Manager,
respectively, of the Manila International Airport Authority (MIAA), and accountable for public funds
belonging to the MIAA, they being the only ones authorized to make withdrawals against the cash
accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
each other, did then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said amount in the name of accused
Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office
at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take
care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,
and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the
same and thereafter both accused misappropriated and converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
Pasay, Philippines and within the jurisdiction of this Honorable Court, accused Luis A.
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Tabuena and Gerardo G. Dabao, both public officers, being then the General Manager and Assistant
General Manager, respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the
cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
government, take and misappropriate the amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from
MIAA funds by applying for the issuance of a managers check for said amount in the name of accused
Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office
at the Manila International Airport in Pasay City, purportedly as partial payment to the Philippine National
Construction Corporation (PNCC), the mechanics of which said accused Tabuena would personally take
care of, when both accused well knew that there was no outstanding obligation of MIAA in favor of PNCC,
and after the issuance of the above-mentioned managers check, accused Luis A. Tabuena encashed the
same and thereafter both accused misappropriated and converted the proceeds thereof to their personal
use and benefit, to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
xxx
Pasay, Philippines, and within the jurisdiction of this Honorable Court, accused Luis A. Tabuena and Adolfo
M. Peralta, both public officers, being then the General Manager and Acting Manager, Financial Services
Department, respectively, of the Manila International Airport Authority (MIAA), and accountable for
public funds belonging to the MIAA, they being the only ones authorized to make withdrawals against the
cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating and confabulating with
government, take and misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a managers check for said amount in the name of accused Luis A.
Tabuena chargeable against MIAAs Savings Account No. 274-500-354-3 in the PNB Extension Office at the
Manila International Airport in Pasay City, purportedly as partial payment
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to the Philippine National Construction Corporation (PNCC), the mechanics of which said accused Tabuena
would personally take care of, when both accused well knew that there was no outstanding obligation of
MIAA in favor of PNCC, and after the issuance of the above-mentioned managers check, accused Luis A.
Tabuena encashed the same and thereafter both accused misappropriated and converted the proceeds
thereof to their personal use and benefit, to the damage and prejudice of the government in the aforesaid
amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the presidents office and in
cash what the MIAA owes the Philippine National Construction Corporation (PNCC), to which Tabuena
replied, Yes, sir, I will do it. About a week later, Tabuena received from Mrs. Fe Roa Gimenez, then
private secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter referred to
as MARCOS Memorandum) reiterating in black and white such verbal instruction, to wit:
Office of the President of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction Corporation, thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs
account with said Company mentioned in a Memorandum of Minister Roberto Ongpin to this Office dated
January 7, 1985 and duly approved by this Office on February 4, 1985. Your immediate compliance is
appreciated.
(Sgd.) FERDINAND MARCOS.4
____________________________
4 Records, Vol. I, p. 26.
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The January 7, 1985 memorandum of then Minister of Tradeand Industry Roberto Ongpin referred to in
the MARCOSMemorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and Request for
Partial Deferment of Repayment of PNCCs Advances
for MIA Development Project
May I request your approval of the attached recommendations of Minister Jesus S. Hipolito for eight (8)
supplemental contracts pertaining to the MIA Development Project (MIADP) between the Bureau of Air
Transport (BAT) and Philippine National Construction Corporation (PNCC), formerly CDCP, as follows:
1.
Supplemental Contract No. 12
Package Contract No. 2.
P11,106,600.95
2.
5,758,961.52
3.
Package Contract No. 2

4,586,610.80
4.
1,699,862.69
5.
233,561.22
6.
8,821,731.08
7.
6,110,115.75
8.
Package Contract No. II
16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on May 28, 1984)
In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly
CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive
of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due
to PNCC of only P4.5 million.
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At the same time, PNCC has potential escalation claims amounting to P99 million in the following stages
of approval/evaluation:
Approved by Price Escalation Committee
(PEC) but pended for lack of funds
P1.9 million
Endorsed by project consultants and
currently being evaluated by PEC
30.7 million
Submitted by PNCC directly to PEC
and currently under evaluation
66.5 million
Total
P99.1 million
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due
to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service
its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending escalation billings, may
we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the
extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which
P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing MIA Project funds.
This amount represents the excess of the gross billings of PNCC of P98.4 million over the undeferred
portion of the repayment of advances of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister5
In obedience to President Marcos verbal instruction and memorandum, Tabuena, with the help of Dabao
and Peralta, caused the release of P55 Million of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million, following a letter of even date signed
by Tabuena
____________________________
5 Records, Vol. I, pp. 119-120.
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and Dabao requesting the PNB extension office at the MIAAthe depository branch of MIAA funds, to
issue a managers check for said amount payable to Tabuena. The check was encashed, however, at the
PNB Villamor Branch. Dabao and the cashier of the PNB Villamor branch counted the money after which,
Tabuena took delivery thereof. The P25 Million in cash were then placed in peerless boxes and duffle bags,
loaded on a PNB armored car and delivered on the same day to the office of Mrs. Gimenez located at
Aguado Street fronting Malacaang. Mrs. Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and delivery of another P25
Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5 Million. Peralta was Tabuenas co-
signatory to the letter-request for a managers check for this amount. Peralta accompanied Tabuena to
the PNB Villamor branch as Tabuena requested him to do the counting of the P5 Million. After the
counting, the money was placed in two (2) peerless boxes which were loaded in the trunk of Tabuenas
car. Peralta did not go with Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It was
only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt for all the amounts she received
from Tabuena. The receipt, dated January 30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE MILLION PESOS (P55,000,000.00) as
of the following dates:
Jan. 10
P25,000,000.00
Jan. 16
25,000,000.00
Jan. 30
5,000,000.00
(Sgd.) Fe Roa-Gimenez
351
351
The disbursement of the P55-Million was, as described by Tabuena and Peralta themselves, out of the
ordinary and not based on the normal procedure. Not only were there no vouchers prepared to
support the disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt for the P55 Million
was presented. Defense witness Francis Monera, then Senior Assistant Vice President and Corporate
Comptroller of PNCC, even affirmed in court that there were no payments made to PNCC by MIAA for the
months of January to June of 1986.
The position of the prosecution was that there were no outstanding obligations in favor of PNCC at the
time of the disbursement of the P55 Million. On the other hand, the defense of Tabuena and Peralta, in
short, was that they acted in good faith. Tabuena claimed that he was merely complying with the MARCOS
Memorandum which ordered him to forward immediately to the Office of the President P55 Million in
cash as partial payment of MIAAs obligations to PNCC, and that he (Tabuena) was of the belief that MIAA
indeed had liabilities to PNCC. Peralta for his part shared the same belief and so he heeded the request of
Tabuena, his superior, for him (Peralta) to help in the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which ultimately led to their
conviction, Tabuena and Peralta now set forth a total of ten (10) errors6 committed
____________________________
6 Tabuena avers that the Sandiganbayan:
Erred and committed reviewable error in ruling that petitioners withdrawal of the P55 Million was not
for a lawful purpose or for a lawful debt. In the process, the Sandiganbayan clearly ignored several pieces
of evidence submitted by petitioner, and instead misapprehended the full import of the Ongpin
Memorandum (Exh. 2, as attachment of Annex I), to which the Marcos order to pay referred (Exh. 1,
attachment to Annex I). In so concluding, the Sandiganbayan laid its conclusions open to review as its
judgment is in effect based on misapprehension of facts (Cruz vs. Sosing, L-4875, Novem
352
352
by the Sandiganbayan for this Courts consideration. It appears, however, that at the core of their plea
that we acquit them are the following:
_______________
ber 27, 1953); and in ignoring several material pieces of evidence abused its discretion (Buyco vs. People,
51 OG 7927).
Erred and committed reviewable error in ruling that the Ongpin Memorandum (Exh. 2 and 2-A, See
Annex I), and the Marcos approval thereof (Exh. 1, id.) did not support the withdrawal and payment
of monies by petitioner. In so concluding, the Sandiganbayan again clearly misapprehended the Ongpin
and Marcos Memoranda, and the ledger of PNCC.
C
Erred and committed reviewable error in ruling that petitioner was in bad faith when he complied with
the presidential order to pay; in thus concluding the Sandiganbayan indulged in speculations and
conjectures (Joaquin vs. Navarro, 93 Phil. 257), or otherwise went beyond the issues (Evangelista vs. Alco,
L-11139, April 23, 1958); the Sandiganbayan also erred in not ruling that petitioner is entitled to justifying
circumstance under Par. 6, Art. 11, and/or the exempting circumstance provided under Pars. 5 and 6 of
Art. 12 of the Revised Penal Code.
Erred and committed reviewable error in ruling that petitioner was unable to account for the money. In
so doing, the Sandiganbayan contradicted the ruling in U.S. vs. Catolico, 18 Phil. 504. It also erred in
holding petitioner accountable for acts not charged in the amended informations, and in so doing
convicted him without jurisdiction.
Erred and committed reviewable error in ruling that petitioner was not entitled to immunity as provided
by Sec. 17, Article VII of the 1973 Constitution. The Sandiganbayan therefore had no jurisdiction to try the
cases.
Erred and committed reviewable error in ruling that proof beyond reasonable doubt of petitioners guilt
was submitted by the prosecution. In so doing, the Sandiganbayan wrong
353
353
1) the Sandiganbayan convicted them of a crime not charged in the amended informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were being charged with intentional
malversation, as the amended informations commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and misappropriated
the amount of x x x.
But it would appear that they were convicted of malversation by negligence. In this connection, the
Courts attention is directed to p. 17 of the December 20, 1991 Resolution
____________________________
ly shifted the burden of proof and denied petitioner the benefits of the presumption of innocence, of Secs.
1 and 2, Rule 131, and the absence of demand under the last paragraph of Art. 217 of the Revised Penal
Code.
Peralta for his part claim that:
1. Respondent court grossly and seriously erred in convicting herein accused despite the absence of proof
that he allegedly converted the funds withdrawn to his own personal benefit as charged in the information
in glaring violation of his basic constitutional right to be presumed innocent.
2. Respondent court likewise grossly and seriously erred in convicting herein accused for a crime not
charged in the information again in violation of another constitutional right, that is the right to be
informed of the accusation or right to due process.
3. Respondent court also grossly erred in convicting herein accused on the basis of mere assumptions,
conjectures and inferences devoid of factual basis in another serious and glaring violation of his right to
be presumed innocent until his guilt is established by proof beyond reasonable doubt.
4. Respondent court finally erred in refusing to recognize the applicability of the immunity provision
embodied in the Constitution and of the justifying circumstance of obedience to a lawful order as valid
defenses in this case.
354
354
(denying Tabuenas and Peraltas motion for reconsideration) wherein the Sandiganbayan said:
x x x xxx xxx
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 Million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 Million of
public funds. (Italics supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta argue that:
1) While malversation may be committed intentionally or by negligence, both modes cannot be

committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of negligence where the
amended informations charged them with intentional malversation.7
3) Their conviction of a crime different from that charged violated their constitutional right to be informed
of the accusation.8
We do not agree with Tabuena and Peralta on this point. Illuminative and controlling is Cabello v.
Sandiganbayan9 where the Court passed upon similar protestations raised by therein accused-petitioner
Cabello whose conviction for the same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded a case of malversation
by negligence but the information was for intentional malversation, under the circum-
____________________________
7 Citing PNB v. Tugab, 66 Phil. 583 and People v. Pascua, 71 O.G. 2474.
8 Citing Tubb v. People, 101 Phil. 114.
9 197 SCRA 94.
355
355
stances of this case his conviction under the first mode of misappropriation would still be in order.
Malversation is committed either intentionally or by negligence. The dolo or the culpa present in the
offense is only a modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful or intentional
falsification can validly be convicted of falsification through negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held in Quizon vs. Justice
of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a distinct crime in our Penal Code, designated
as a quasi offense in our Penal Code, it may however be said that a conviction for the former can be had
under an information exclusively charging the commission of a willful offense, upon the theory that the
greater includes the lesser offense. This is the situation that obtains in the present case. Appellant was
charged with willful falsification but from the evidence submitted by the parties, the Court of Appeals
found that in effecting the falsification which made possible the cashing of the checks in question,
appellant did not act with criminal intent but merely failed to take proper and adequate means to assure
himself of the identity of the real claimants as an ordinary prudent man would do. In other words, the
information alleges acts which charge willful falsification but which turned out to be not willful but
negligent. This is a case covered by the rule when there is a variance between the allegation and proof,
and is similar to some of the cases decided by this Tribunal.
xxx
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the essential elements of
the offense charged in the information be proved, it being sufficient that some of said essential elements
or ingredients thereof be established to constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed with imprudence is of
no moment for here this deficiency appears supplied by the evidence submitted by appellant himself and
the result has proven beneficial to him. Certainly, having alleged that the falsification has been willful, it
would be incongruous to allege at the same time that it was committed with imprudence for a charge of
criminal intent is incompatible with the concept of negligence.
356
356
Subsequently, we ruled in People vs. Consigna, et al., that the aforestated rationale and arguments also
apply to the felony of malversation, that is, that an accused charged with willful malversation, in an
information containing allegations similar to those involved in the present case, can be validly convicted
of the same offense of malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid defense in a prosecution for
malversation for it would negate criminal intent on the part of the accused. Thus, in the two (2) vintage,
but significant malversation cases of US v. Catolico10 and US v. Elvia,11 the Court stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be accompanied by a
criminal intent, or by such negligence or indifference to duty or to consequences as, in law, is equivalent
to criminal intent. The maxim is actus non facit reum, nisi mens sit reaa crime is not committed if the
mind of the person performing the act complained of is innocent.
The rule was reiterated in People v. Pacana,12 although this case involved falsification of public
documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus non facit reum, nisi
mens sit rea. There can be no crime when the criminal mind is wanting.
American jurisprudence echoes the same principle. It adheres to the view that criminal intent in
embezzlement is not based on technical mistakes as to the legal effect of a transaction honestly entered
into, and there can be no embezzlement if the mind of the person doing the act is innocent or if there is
no wrongful purpose.13 The accused may thus always intro-
____________________________
10 18 Phil. 504.
11 24 Phil. 230.
12 47 Phil. 48.
13 Lewis v. People, 99 Colo. 102, 60 Pac. [2d] 1089; Lawver v. State, 221 Ind. 101, 46 N.E. [2d] 592; State
v. Schmidt, 72 N. Dak.
357
357
duce evidence to show he acted in good faith and that he had no intention to convert.14 And this, to our
mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence of the MARCOS Memorandum,
we are swayed to give credit to his claim of having caused the disbursement of the P55 Million solely by
reason of such memorandum. From this premise flows the following reasons and/or considerations that
would buttress his innocence of the crime of malversation.
First, Tabuena had no other choice but to make the withdrawals, for that was what the MARCOS
Memorandum required him to do. He could not be faulted if he had to obey and strictly comply with the
presidential directive, and to argue otherwise is something easier said than done. Marcos was undeniably
Tabuenas superiorthe former being then the President of the Republic who unquestionably exercised
control over government agencies such as the MIAA and PNCC.15 In other words, Marcos had a say in
matters involving inter-government agency affairs and transactions, such as for instance, directing
payment of liability of one entity to another and the manner in which it should be carried out. And as a
recipient of such kind of a directive coming from the highest official of the land no less, good faith should
be read on Tabuenas compliance, without hesitation nor any question, with the MARCOS Memorandum.
Tabuena therefore is entitled to the justifying circumstance of Any person who acts in obedience to an
order issued by a superior for some lawful purpose.16 The subordinate-superior relationship between
Tabuena and Marcos is clear. And so too, is the lawfulness of the order contained in the MARCOS
Memorandum, as it has
____________________________
719, 10 N.W. [2d] 868. Underhills Criminal Evidence, 5th Ed., Book 3, p. 1421.
14 Federal Lindgren v. United States, 260 Fed. 772. Underhill, ibid.
15 Section 8, Article VII of the 1973 Constitution provides:
The President shall have control of all ministries.
16 No. 6, Article II, Revised Penal Code.
358
358
for its purpose partial payment of the liability of one government agency (MIAA) to another (PNCC).
However, the unlawfulness of the MARCOS Memorandum was being argued, on the observation, for
instance, that the Ongpin Memo referred to in the presidential directive reveals a liability of only about
P34.5 Million. The Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the President dated January
7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the MIAA Development
Project, while at the same time recognizing some of the PNCCs escalation billings which would result in
making payable to PNCC the amount of P34.5 million out of existing MIAA Project funds.
Thus:
x x x
we request for His Excellencys approval for a deferment of repayment of PNCCs advances to the extent
of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which P32.6
million has been officially recognized by MIADP consultants but could not be paid due to lack of funding.
While Min. Ongpin may have, therefore recognized the escalation claims of the PNCC to MIAA to the
extent of P99.1 million (Exhibit 2a), a substantial portion thereof was still in the stages of evaluation and
approval, with only P32.6 million having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which President Marcos
Memo was based) they would only be for a sum of up to P34.5 million.17
_______________
17 Sandiganbayan Decision, pp. 37-38.
359
359
xxx xxx xxx
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million irrelevant, but it was
actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, to 2-a); Exhibit 1,
however, speaks of P55 million to be paid to the PNCC while Exhibit 2 authorized only P34.5 million. The
order to withdraw the amount of P55 million exceeded the approved payment of P34.5 million by P20.5
million. Min. Ongpins Memo of January 7, 1985 could not therefore serve as a basis for the Presidents
order to withdraw P55 million.18
Granting this to be true, it will not nevertheless affect Tabuenas good faith so as to make him criminally
liable. What is more significant to consider is that the MARCOS Memorandum is patently legal (for on its
face it directs payment of an outstanding liability) and that Tabuena acted under the honest belief that
the P55 million was a due and demandable debt and that it was just a portion of a bigger liability to PNCC.
This belief is supported by defense witness Francis Monera who, on direct examination, testified that:
ATTY. ANDRES
Can you please show us in this Exhibit 7 and 7-a where it is indicated the receivables from MIA as of
December 31, 1985?
A
As of December 31, 1985, the receivables from MIA is shown on page 2, marked as Exhibit 7-a, sir,
P102,475,392.35.
xxx xxx x x x.19
ATTY. ANDRES
Can you tell us, Mr. Witness, what these obligations represent?
____________________________
18 Sandiganbayan Decision, p. 41.
19 TSN, March 17, 1989, p. 7; Vol. III, Records, p. 409.
360
360
WITNESS
These obligations represent receivables on the basis of our billings to MIA as contract-owner of the project
that the Philippine National Construction Corporation constructed. These are billings for escalation
mostly, sir.
What do you mean by escalation?
Escalation is the component of our revenue billings to the contract-owner that are supposed to take care
of price increases, sir.
xxx xxx x x x.20
ATTY. ANDRES
Q
When you said these are accounts receivable, do I understand from you that these are due and
demandable?
Yes, sir.21
Thus, even if the order is illegal if it is patently legal and the subordinate is not aware of its illegality, the
subordinate is not liable, for then there would only be a mistake of fact committed in good faith.22 Such
is the ruling in Nassif v. People23 the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee of R.J. Campos, he
inserted in the commercial document alleged to have been falsified the word sold by order of his
principal. Had he known or suspected that his principal was committing an improper act of falsification,
he would be liable either as a co-principal or as an accomplice. However, there being no malice on his
part, he was exempted from criminal liability as he was a mere employee following the orders of his
principal.24
____________________________
22 Gregorio, Fundamentals of Criminal Law, 1988 8th Ed., p. 59.
23 78 Phil. 67.
24 Padilla, Revised Penal Code, Book One, Vol. I, 7th Ed. 1974., p. 248. See also: Aquino, The Revised Penal
Code, Vol. I, 1987 Ed., p. 207.
In the very words of the Court in the Nassif case:
El mero acto de escribir un empleado de la categoria del recurrente, en el Exhibit B, la palabra sold,
por orden de su
361
361
Second. There is no denying that the disbursement, which Tabuena admitted as out of the ordinary, did
not comply with certain auditing rules and regulations such as those pointed out by the Sandiganbayan,
to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements above P1,000.00
should be made by check (Basic Guidelines for Internal Control dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete documentation (Sec.
4, P.D. 1445, State Auditing Code of the Philippines). In this connection, the Sandiganbayan observed
that:
There were no vouchers to authorize the disbursements in question. There were no bills to support the
disbursement. There were no certifications as to the availability of funds for an unquestionably staggering
sum of P55 Million.25
c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was in. He did not have the luxury of
time to observe all auditing procedures of disbursement considering the fact that the MARCOS
Memorandum enjoined his immediate compliance with the directive that he forward to the Presidents
Office the P55 Million in cash. Be that as it may, Tabuena surely cannot escape responsibility for such
omis-
____________________________
principal que le paga el sueldo, sin prueba alguna de dolo o malicia de su parte, no crea por si solo ninguna
responsabilidad. Si antes de insertar dicha palabra en el referido documento, o al tiempo de hacerlo, el
recurrente hubiese sabido o sospechado de alguna manera que era para justificar un acto impropio de su
principal, cosa que, pro cierto, no se ha probado, ni puede desprenderse de la decision impugnada,
indudablemente podria hacersele responsable a dicho recurrente, de la falsificacion cometida, si no como
coautor, por lo menos como complice. Todo esto y la circunstancia justificativa invocada por el recurrente,
eximen a este de toda responsabilidad.
25 Decision, p. 45.
362
362
sion. But since he was acting in good faith, his liability should only be administrative or civil in nature, and
not criminal. This follows the decision in Villacorta v. People26 where the Court, in acquitting therein
accused municipal treasurer of Pandan, Catanduanes of malversation after finding that he incurred a
shortage in his cash accountability by reason of his payment in good faith to certain government personnel
of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he made wrong
payments, they were in good faith mainly to government personnel, some of them working at the
provincial auditors and the provincial treasurers offices. And if those payments ran counter to auditing
rules and regulations, they did not amount to a criminal offense and he should only be held
administratively or civilly liable.
Likewise controlling is US v. Elvia27 where it was held that payments in good faith do not amount to
criminal appropriation, although they were made with insufficient vouchers or improper evidence. In fact,
the Dissenting Opinions reference to certain provisions in the revised Manual on Certificate of Settlement
and Balancesapparently made to underscore Tabuenas personal accountability, as agency head, for
MIAA fundswould all the more support the view that Tabuena is vulnerable to civil sanctions only.
Sections 29.2 and 29.5 expressly and solely speak of civilly liable to describe the kind of sanction
imposable on a superior officer who performs his duties with bad faith, malice or gross negligence and
on a subordinate officer or employee who commits willful or negligent act x x x which are contrary to
law, morals, public policy and good customs even if he acted under order or instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already converted and misappropriated the
P55 Million when he delivered the same to Mrs. Gimenez and not to the
____________________________
26 145 SCRA 435.
27 Supra.
363
363
PNCC, proceeding from the following definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent appropriation to

ones own use of anothers property which does not necessarily mean to ones personal advantage but
every attempt by one person to dispose of the goods of another without right as if they were his own is
conversion to his own use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906,
179 Okl. 106)
At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal property to enjoy and
control it. The gist of conversion is the usurpation of the owners right of property, and not the actual
damages inflicted. Honesty of purpose is not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
At page 168, id.

xxx xxx xxx
The words convert and misappropriate connote an act of using or disposing of anothers property as if
it were ones own. They presuppose that the thing has been devoted to a purpose or use different from
that agreed upon. To appropriate to ones own use includes not only conversion to ones personal
advantage but every attempt to dispose of the property of another without right.
People vs. Webber, 57
O.G. p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal justification, he
became as guilty of malversation as if he had personally taken them and converted them to his own use.
People vs. Luntao, 50
O.G. p. 1182, 118328
We do not agree. It must be stressed that the MARCOS Memorandum directed Tabuena to pay
immediately the Phil-
_______________
28 Sandiganbayan Decision, p. 50.
364
364
ippine National Construction Corporation, thru this office, the sum of FIFTY FIVE MILLION . . . ., and that
was what Tabuena precisely did when he delivered the money to Mrs. Gimenez. Such delivery, no doubt,
is in effect delivery to the Office of the President inasmuch as Mrs. Gimenez was Marcos secretary then.
Furthermore, Tabuena had reasonable ground to believe that the President was entitled to receive the
P55 Million since he was certainly aware that Marcos, as Chief Executive, exercised supervision and
control over government agencies. And the good faith of Tabuena in having delivered the money to the
Presidents office (thru Mrs. Gimenez), in strict compliance with the MARCOS Memorandum, was not at
all affected even if it later turned out that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of malversation.
xxx xxx xxx
Not every unauthorized payment of public funds is malversation. There is malversation only if the public
officer who has custody of public funds should appropriate the same, or shall take or misappropriate or
shall consent, or through abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and there is reasonable ground
to believe that the public officer to whom the fund had been paid was entitled thereto, he is deemed to
have acted in good faith, there is no criminal intent, and the payment, if it turns out that it is unauthorized,
renders him only civilly but not criminally liable.29
Fourth. Even assuming that the real and sole purpose behind the MARCOS Memorandum was to siphon-
out public money for the personal benefit of those then in power, still, no criminal liability can be imputed
to Tabuena. There is no showing that Tabuena had anything to do whatsoever with the execution of the
MARCOS Memorandum. Nor is there
____________________________
29 People v. Fabian, No. 10790-CR, March 12, 1973, 69 O.G. 12150, No. 53.
365
365
proof that he profited from the felonious scheme. In short, no conspiracy was established between
Tabuena and the real embezzler/s of the P55 Million. In the cases of US v. Acebedo30 and Ang v.
Sandiganbayan,31 both also involving the crime of malversation, the accused therein were acquitted
after the Court arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein accused, as
municipal president of Palo, Leyte, was prosecuted for and found guilty by the lower court of malversation
after being unable to turn over certain amounts to the then justice of the peace. It appeared, however,
that said amounts were actually collected by his secretary Crisanto Urbina. The Court reversed Acebedos
conviction after finding that the sums were converted by his secretary Urbina without the knowledge and
participation of Acebedo. The Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case, nor did such
conspiracy appear in the case against Urbina. No guilty knowledge of the theft committed by the secretary
was shown on the part of the appellant in this case, nor does it appear that he in any way participated in
the fruits of the crime. If the secretary stole the money in question without the knowledge or consent of
the appellant and without negligence on his part, then certainly the latter can not be convicted of
embezzling the same money or any part thereof.32
In Ang, accused-petitioner, as MWSS bill collector, allowed part of his collection to be converted into
checks drawn in the name of one Marshall Lu, a non-customer of MWSS, but the checks were
subsequently dishonored. Ang was acquitted by this Court after giving credence to his assertion that the
conversion of his collections into checks were thru the machinations of one Lazaro Guinto, another MWSS
collector more senior to him. And we also adopt the Courts observation therein, that:
____________________________
30 18 Phil. 428.
31 197 SCRA 262.
32 Supra, p. 431.
366
366
The petitioners alleged negligence in allowing the senior collector to convert cash collections into checks
may be proof of poor judgment or too trusting a nature insofar as a superior officer is concerned but there
must be stronger evidence to show fraud, malice, or other indicia of deliberateness in the conspiracy
cooked up with Marshall Lu. The prosecution failed to show that the petitioner was privy to the
conspirational scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS, must be converted into
evidence before conviction beyond reasonable doubt may be imposed.33
The principles underlying all that has been said above in exculpation of Tabuena equally apply to Peralta
in relation to the P5 Million for which he is being held accountable, i.e., he acted in good faith when he,
upon the directive of Tabuena, helped facilitate the withdrawal of P5 Million of the P55 Million of the
MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience in good faith of a duly executed
order. Indeed, compliance to a patently lawful order is rectitude far better than contumacious
disobedience. In the case at bench, the order emanated from the Office of the President and bears the
signature of the President himself, the highest official of the land. It carries with it the presumption that
it was regularly issued. And on its face, the memorandum is patently lawful for no law makes the payment
of an obligation illegal. This fact, coupled with the urgent tenor for its execution constrains one to act
swiftly without question. Obedientia est legis essentia. Besides, the case could not be detached from the
realities then prevailing. As aptly observed by Mr. Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and that the judiciary
was independent and fearless. We know it was not; even the Supreme Court at that time was not free.
This is an undeniable fact that we can not just blink away. Insisting on the contrary would only make our
sincerity sus-
____________________________
33 Supra, p. 273.
367
367
pect and even provoke scorn for what can only be described as our incredible credulity.34
But what appears to be a more compelling reason for their acquittal is the violation of the accuseds basic
constitutional right to due process. Respect for the Constitution, to borrow once again Mr. Justice Cruzs
words, is more important than securing a conviction based on a violation of the rights of the accused.35
While going over the records, we were struck by the way the Sandiganbayan actively took part in the
questioning of a defense witness and of the accused themselves. Tabuena and Peralta may not have raised
this as an error, there is nevertheless no impediment for us to consider such matter as additional basis for
a reversal since the settled doctrine is that an appeal throws the whole case open to review, and it
becomes the duty of the appellate court to correct such errors as may be found in the judgment appealed
from whether they are made the subject of assignments of error or not.36
Simply consider the volume of questions hurled by the Sandiganbayan. At the taking of the testimony of
Francis Monera, then Senior Assistant Vice President and Corporate Comptroller of PNCC, Atty. Andres
asked sixteen (16) questions on direct examination. Prosecutor Viernes only asked six (6) questions on
cross-examination in the course of which the court interjected a total of twenty-seven (27) questions
(more than four times Prosecutor Viernes questions and even more than the combined total of direct
and cross-examination questions asked by the counsels). After the defense opted not to conduct any re-
direct examination, the court further asked a total of ten (10) questions.37 The trend intensified during
____________________________
34 Development Bank of the Philippines v. Pundogar, 218 SCRA 118, 163.
35 People v. Exala, Dissenting Opinion, 221 SCRA 494, 503.
36 People v. Olfindo, 47 Phil. 1, citing U.S. v. Abijan, 1 Phil. 83; People v. Borbano, 76 Phil. 703; Perez v.
Court of Appeals, 127 SCRA 636.
37 See TSN of March 17, 1989, Records, Vol. III, pp. 408-423.
368
368

Tabuenas turn on the witness stand. Questions from the court after Tabuenas cross-examination totalled
sixty-seven (67).38 This is more than five times Prosecutor Viernes questions on cross-examination (14),
and more than double the total of direct examination and cross-examination questions which is thirty-
one (31) [17 direct examination questions by Atty. Andres plus 14 cross-examination questions by
Prosecutor Viernes]. In Peraltas case, the Justices, after his cross-examination, propounded a total of
forty-one (41) questions.39
But more importantly, we note that the questions of the court were in the nature of cross examinations
characteristic of confrontation, probing and insinuation.40 (The insinuating type was best exemplified in
one question addressed to Peralta, which will be underscored.) Thus we beg to quote in length from the
transcripts pertaining to witness Monera, Tabuena and Peralta. (Questions from the Court are marked
with asterisks and italicized for emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the PNCC had receivables from
MIAA totalling P102,475,392.35, and although such receivables were largely billings for escalation, they
were nonetheless all due and
____________________________
38 See pp. 1-27 TSN of May 2, 1990, Records, Vol. III, pp. 439-465.
39 See pp. 32-53 of TSN, of May 2, 1990, Records, Vol. III, pp. 470-490.
40 Confrontation.Confrontation consists of confronting the witness with damaging facts which he

cannot deny and which are inconsistent with his evidence. It is a destructive technique, but when it fails
to destroy it may still succeed in weakening.
Probing.Probing consists of inquiring thoroughly into the details of the story to discover the flaws.
Insinuation.Insinuation consists of leading or forcing the witness by adding facts at one point and
modifying details at another, to give a version of his evidence which is more favorable to the other side.
The Technique of Advocacy, by John H. Munkman, pp. 66-67; p. 75; pp. 91-92.
369
369
demandable. What follows are the cross-examination of Prosecutor Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES

Q
You admit that as shown by these Exhibits 7 and 7-a, the items here represent mostly escalation
billings. Were those escalation billings properly transmitted to MIA authorities?
I dont have the documents right now to show that they were transmitted, but I have a letter by our
President, Mr. Olaguer, dated July 6, 1988, following up for payment of the balance of our receivables
from MIA, sir.
*AJ AMORES
*Q
This matter of escalation costs, is it not a matter for a conference between the MIA and the PNCC for the
determination as to the correct amount?
I agree, your Honor. As far as we are concerned, our billings are what we deemed are valid receivables.
And, in fact, we have been following up for payment.
*Q
This determination of the escalation costs was it accepted as the correct figure by MIA?
I dont have any document as to the acceptance by MIA, your Honor, but our company was able to get a
document or a letter by Minister Ongpin to President Marcos, dated January 7, 1985, with a marginal note
or approval by former President Marcos.
*PJ GARCHITORENA
*Q
Basically, the letter of Mr. Ongpin is to what effect?
The subject matter is approval of the supplementary contract and request for partial deferment of
payment for MIA Development Project, your Honor.
*Q
It has nothing to do with the implementation of the escalation costs?
The details show that most of the accounts refer to our escalations, your Honor.
*Q
Does that indicate the computation for escalations were already billed or you do not have any proof of
that?
Our subsidiary ledger was based on billings to MIA and this letter of Minister Ongpin appears to have
confirmed our billings to MIA, your Honor.
370
370
*AJ AMORES
*Q
Were there partial payments made by MIA on these escalation billings?
Based on records available as of today, the P102 million was reduced to about P56.7 million, if my
recollection is correct, your Honor.
*PJ GARCHITORENA
*Q
Were the payments made before or after February 1986, since Mr. Olaguer is a new entrant to your
company?
WITNESS
The payments were made after December 31, 1985 but I think the payments were made before the entry
of our President, your Honor. Actually, the payment was in the form of: assignments to State Investment
of about P23 million; and then there was P17.8 million application against advances made or formerly
given; and there were payments to PNCC of about P2.6 million and there was a payment for application
on withholding and contractual stock of about P1 million; that summed up to P44.4 million all in all. And
you deduct that from the P102 million, the remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q
What you are saying is that, for all the payments made on this P102 million, only P2 million had been
payments in cash?
A
Yes, your Honor.
*Q
The rest had been adjustments of accounts, assignments of accounts, or offsetting of accounts?
Yes, your Honor.
*Q
This is as of December 31, 1985?
The P102 million was as of December 31, 1985, your Honor, but the balances is as of August 1987.
*Q
We are talking now about the P44 million, more or less, by which the basic account has been reduced.
These reductions, whether by adjustment or assignment or actual delivery of cash, were made after
December 31, 1985?
WITNESS
Yes, your Honor.
*Q
And your records indicate when these adjustments and payments were made?
Yes, your Honor.
371
371
*AJ AMORES
*Q
You said there were partial payments before of these escalation billings. Do we get it from you that there
was an admission of these escalation costs as computed by you by MIA, since there was already partial
payments?
Yes, your Honor.
*Q
How were these payments made before February 1986, in cash or check, if there were payments made?
The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q
The question of the Court is, before December 31, 1985, were there any liquidations made by MIA against
these escalation billings?
I have not reviewed the details of the record, your Honor. But the ledger card indicates that there were
collections on page 2 of the Exhibit earlier presented. It will indicate that there were collections shown by
credits indicated on the credit side of the ledger.
*AJ AMORES
*Q
Your ledger does not indicate the manner of giving credit to the MIA with respect to the escalation billings.
Was the payment in cash or just credit of some sort before December 31, 1985?
Before December 31, 1985, the reference of the ledger are official receipts and I suppose these were
payments in cash, your Honor.
*Q
Do you know how the manner of this payment in cash was made by MIA?
I do not know, your Honor.
*PJ GARCHITORENA
*Q
But your records will indicate that?

A
The records will indicate that, your Honor.
*Q
Except that you were not asked to bring them?
Yes, your Honor.
*Q
At all events, we are talking of settlement or partial liquidation prior to December 31, 1985?
Yes, your Honor.
*PJ GARCHITORENA
*Q
Subsequent thereto, we are talking merely of about P44 million?
Yes, your Honor, as subsequent settlements.
372
372
*Q
After December 31, 1985?
Yes, your Honor.
*Q
And they have liquidated that, as you described it, by way of assignments, adjustments, by offsets and by
P2 million of cash payment?
Yes, your Honor.

*AJ AMORES
*Q
Your standard operating procedure before December 31, 1985 in connection with or in case of cash
payment, was the payment in cash or check?
I would venture to say it was by check, your Honor.
*Q
Which is the safest way to do it?
Yes, your Honor.
*PJ GARCHITORENA
*Q
And the business way?
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
You mentioned earlier about the letter of former Minister Ongpin to the former President Marcos, did
you say that that letter concurs with the escalation billings reflected in Exhibits 7 and 7-a?
WITNESS
The Company or the management is of the opinion that this letter, a copy of which we were able to get,
is a confirmation of the acceptance of our billings, sir.
*Q
This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of escalation billings as
appearing in Exhibit 7 are dated June 30, 1985, would you still insist that the letter of January 1985
confirms the escalation billings as of June 1985?
A
The entries started June 30 in the ledger card. And as of December 31, 1985, it stood at P102 million after
payments were made as shown on the credit side of the ledger. I suppose that the earlier amount, before
the payment was made, was bigger and therefore I would venture to say that the letter of January 7, 1985
contains an amount that is part of the original contract account. What are indicated in the ledger are
escalation billings.
*PJ GARCHITORENA
*Q
We are talking about the letter of Minister Ongpin?
373
373
The letter of Minister Ongpin refers to escalation billings, sir.
*Q
As of what date?
The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
In accordance with this letter marked Exhibit 7 and 7-a, there were credits made in favor of MIA in
July and November until December 1985. These were properly credited to the account of MIA?
WITNESS
Yes, sir.
Q
In 1986, from your records as appearing in Exhibit 7-a, there were no payments made to PNCC by MIA
for the months of January to June 1986?
Yes, sir.
And neither was the amount of P22 million remitted to PNCC by MIA?
Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q
From your records, for the month of January 1986, there was no payment of this escalation account by
MIA?
WITNESS
Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment of P23 million, that was on
September 25, 1986.
*Q
But that is already under the present administration?
After February 1986, your Honor.
*Q
But before February, in January 1986, there was no payment whatsoever by MIA to PNCC?
Per record there is none appearing, your Honor.
374
374
*PJ GARCHITORENA
*Q
The earliest payment, whether by delivery of cash equivalent or of adjustment of account, or by

assignment, or by offsets, when did these payments begin?
Per ledger card, there were payments in 1985, prior to December 31, 1985, your Honor.
*Q
After December 31, 1985?
There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q
This is as of September 25?
Yes, your Honor. There were subsequent settlements. P23 million is just part of the P44 million.
*Q
And what you are saying is that, PNCC passed the ac count to State Investment. In other words, State
Investment bought the credit of MIA?
A
Yes, your Honor.
*Q
And the amount of credit or receivables sold by PNCC to State Investment is P23 million?
Yes, your Honor.
*Q
Is there a payback agreement?
I have a copy of the assignment to State Investment but I have not yet reviewed the same, your Honor.
*AJ AMORES
*Q
As of now, is this obligation of MIA, now NAIA, paid to PNCC?
There is still a balance of receivables from MIA as evidenced by a collection letter by our President dated
July 6, 1988, your Honor. The amount indicated in the letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY. ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
375
375
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x x.41
(TABUENA)
(In his direct examination, he testified that he caused the preparation of the checks totalling P55 Million
pursuant to the MARCOS Memorandum and that he thereafter delivered said amount in cash on the three
(3) dates as alleged in the information to Marcos private secretary Mrs. Jimenez at her office at Aguado
Street, who thereafter issued a receipt. Tabuena also denied having used the money for his own personal
use.)
CROSS-EXAMINATION BY PROS. VIERNES
The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were delivered on how many
occasions?
Three times, sir.
And so, on the first two deliveries, you did not ask for a receipt from Mrs. Gimenez?
Yes, sir.
It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs. Gimenez?
Yes, sir.
*PJ GARCHITORENA
*Q
So January 30 is the date of the last delivery?
I remember it was on the 31st of January, your Honor. What happened is that, I did not notice the date
placed by Mrs. Gimenez.
*Q
Are you telling us that this Exhibit 3 was incorrectly dated?
Yes, your Honor.
*Q
Because the third delivery was on January 31st and yet the receipt was dated January 30?
Yes, your Honor.
____________________________
41 TSN, March 17, 1989, pp. 11-21; Records, Vol. III, pp. 413-423.
376
376
*Q
When was Exhibit 3 delivered actually by Mrs. Gimenez?
January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q
You did not go to Malacaang on January 30, 1986?
Yes, sir, I did not.
Do you know at whose instance this Exhibit 3 was prepared?
I asked for it, sir.
You asked for it on January 31, 1986 when you made the last delivery?
Yes, sir.
Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
Yes, sir.
This receipt was typewritten in Malacaang stationery. Did you see who typed this receipt?
No, sir. What happened is that, she went to her room and when she came out she gave me that receipt.
*PJ GARCHITORENA
*Q
What you are saying is, you do not know who typed that receipt?
WITNESS
Yes, your Honor.
*Q
Are you making an assumption that she typed that receipt?
Yes, your Honor, because she knows how to type.

*Q
Your assumption is that she typed it herself?
Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
This receipt was prepared on January 31, although it is dated January 30?
Yes, sir, because I was there on January 31st.
In what particular place did Mrs. Gimenez sign this Exhibit 3?
In her office at Aguado, sir.
Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?
377
377
No, sir, I did not. She was inside her room.
So, she was in her room and when she came out of the room, she handed this receipt to you already typed
and signed?
A
Yes, sir.
*AJ HERMOSISIMA
*Q
So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
Because I know her signature, your Honor. I have been receiving letters from her also and when she
requests for something from me. Her writing is familiar to me.
*Q
So, when the Presiding Justice asked you as to how you knew that this was the signature of Mrs. Gimenez
and you answered that you saw Mrs. Gimenez signed it, you were not exactly truthful?
What I mean is, I did not see her sign because she went to her room and when she came out, she gave me
that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it carefully. Because when I asked
you, you said you saw her signed it. Be careful Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Was there another person inside the office of Mrs. Gimenez when she gave you this receipt Exhibit 3?
Nobody, sir.
Q
I noticed in this receipt that the last delivery of the sum of P55 million was made on January 30. Do we
understand from you that this date January 30 is erroneous?
Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should be January 31st, sir.
PROS VIERNES
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
378
378
*PJ GARCHITORENA
*AJ HERMOSISIMA
*Q
Why did you not ask for a receipt on the first and second deliveries?
Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q
So you know that the total amount to be delivered was P55 million?
A
Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused, your Honor.
*AJ DEL ROSARIO
*Q
From whom did you receive the Presidents memorandum marked Exhibit 1? Or more precisely, who
handed you this memorandum?
Mrs. Fe Roa Gimenez, your Honor.
*Q
Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
The money was in payment for the debt of the MIA Authority to PNCC, your Honor.
*Q
If it was for the payment of such obligation why was there no voucher prepared to cover such payment?
In other words, why was the delivery of the money not covered by any voucher?
The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q
Be that as it may, why was there no voucher to cover this particular disbursement?
I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO

*Q
Was that normal procedure for you to pay in cash to the Office of the President for obligations of the
MIAA in payment of its obligation to another entity?
379
379
WITNESS
No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q
So the Order was out of the ordinary?
Yes, your Honor.
*AJ DEL ROSARIO
*Q
Did you file any written protest with the manner with which such payment was being ordered?
No, your Honor.
*Q
Why not?
Because with that instruction of the President to me, I followed, your Honor.
*Q
Before receiving this memorandum Exhibit 1, did the former President Marcos discuss this matter with
you?
A
Yes, your Honor.
*Q
When was that?
He called me up earlier, a week before that, that he wants to me pay what I owe the PNCC directly to his
office in cash, your Honor.
*PJ GARCHITORENA
*Q
By I OWE, you mean the MIAA?
WITNESS
Yes, your Honor.
*AJ DEL ROSARIO
*Q
And what did you say in this discussion you had with him?
I just said, Yes, sir, I will do it.
*Q
Were you the one who asked for a memorandum to be signed by him?
No, your Honor.
*Q
After receiving that verbal instruction for you to pay MIAAs obligation with PNCC, did you not on your
own accord already prepare the necessary papers and documents for the payment of that obligation?
He told me verbally in the telephone that the Order for the payment of that obligation is forthcoming,
your Honor. I will receive it.
*Q
Is this the first time you received such a memorandum from the President?
A
Yes, your Honor.
380
380
*Q
And was that the last time also that you received such a memorandum?
Yes, your Honor.
*Q
Did you not inquire, if not from the President, at least from Mrs. Gimenez why this procedure has to be
followed instead of the regular procedure?
No, sir.
*AJ DEL ROSARIO
*Q
Why did you not ask?
I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q
You said there was an I OWE YOU?
Yes, your Honor.
*Q
Where is that I OWE YOU now?
All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA owes PNCC that amount.
*Q
Was this payment covered by receipt from the PNCC?
It was not covered, your Honor.
*Q
So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of that payment?
Based on the order to me by the former President Marcos ordering me to pay that amount to his office
and then the mechanics will come after, your Honor.
*Q
Is the PNCC a private corporation or government entity?
I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q
That is the former CDCP?
Yes, your Honor.
*AJ HERMOSISIMA
*Q
Why were you not made to pay directly to the PNCC considering that you are the Manager of MIA at that
time and the PNCC is a separate corporation, not an adjunct of Malacaang?
WITNESS
I was just basing it from the Order of Malacaang to pay PNCC through the Office of the President, your
Honor.
*Q
Do you know the President or Chairman of the Board of PNCC?
Yes, your Honor.

*Q
How was the obligation of MIAA to PNCC incurred. Was it through the President or Chairman of the Board?
381
381
PNCC was the one that constructed the MIA, your Honor.
*Q
Was the obligation incurred through the President or Chairman of the Board or President of the PNCC? In
other words, who signed the contract between PNCC and MIAA?
Actually, we inherited this obligation, your Honor. The one who signed for this was the former Director of
BAT which is General Singzon. Then when the MIA Authority was formed, all the obligations of BAT were
transferred to MIAA. So the accountabilities of BAT were transferred to MIAA and we are the ones that
are going to pay, your Honor.
*Q
Why did you agree to pay to Malacaang when your obligation was with the PNCC?
I was ordered by the President to do that, your Honor.
*Q
You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacaang was not the creditor?
I saw nothing wrong with that because that is coming from the President, your Honor.
*Q
The amount was not a joke, amounting to P55 million, and you agreed to deliver money in this amount
through a mere receipt from the private secretary?
I was ordered by the President, your Honor.

*PJ GARCHITORENA
*Q
There is no question and it can be a matter of judicial knowledge that you have been with the MIA for
sometime?
Yes, your Honor.
*Q
Prior to 1986?
Yes, your Honor.
*Q
Can you tell us when you became the Manager of MIA?
I became Manager of MIA way back, late 1968, your Honor.
*Q
Long before the MIA was constituted as an independent authority?
Yes, your Honor.
*PJ GARCHITORENA
*Q
And by 1986, you have been running the MIA for 18 years?
WITNESS
Yes, your Honor.
382
382

*Q
And prior to your joining the MIA, did you ever work for the government?
No, your Honor.
*Q
So, is it correct for us to say that your joining the MIA in 1968 as its Manager was your first employment
with the government?
Yes, your Honor.
While you were Manager of MIA, did you have other subsequent concurrent positions in the government
also?
I was also the Chairman of the Games and Amusement Board, your Honor.
*Q
But you were not the executive or operating officer of the Games and Amusement Board?
I was, your Honor.
*Q
As Chairman you were running the Games and Amusement Board?
Yes, your Honor.
*Q
What else, what other government positions did you occupy that time?
I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q
That is the cockfighting?

WITNESS
Yes, your Honor.
*Q
Here, you were just a member of the Board?
Yes, your Honor.
*Q
So you were not running the commission?
Yes, your Honor.
*Q
Any other entity?
No more, your Honor.
*Q
As far as you can recall, besides being the Manager of the MIA and later the MIAA for approximately 18
years, you also ran the Games and Amusement Board as its executive officer?
Yes, your Honor.
*Q
And you were a commissioner only of the Game Fowl Commission?
Yes, your Honor.
*Q
Who was running the commission at that time?
I forgot his name, but he retired already, your Honor.
383
383
*Q
All of us who joined the government, sooner or later, meet with our Resident COA representative?
Yes, your Honor.
*PJ GARCHITORENA
*Q
And one of our unfortunate experience (sic) is when the COA Representative comes to us and says:
Chairman or Manager, this cannot be. And we learn later on that COA has reasons for its procedure and
we learn to adopt to them?
WITNESS
Yes, your Honor.
*Q
As a matter of fact, sometimes we consider it inefficient, sometimes we consider it foolish, but we know
there is reason in this apparent madness of the COA and so we comply?
Yes, your Honor.
*Q
And more than anything else the COA is ever anxious for proper documentation and proper supporting
papers?
Yes, your Honor.
*Q
Sometimes, regardless of the amount?
Yes, your Honor.

*Q
Now, you have P55 million which you were ordered to deliver in cash, not to the creditor of the particular
credit, and to be delivered in armored cars to be acknowledged only by a receipt of a personal secretary.
After almost 18 years in the government service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and say, What will I do here?
I did not, your Honor.
*PJ GARCHITORENA
*Q
Did you not think that at least out of prudence, you should have asked the COA for some guidance on this
matter so that you will do it properly?
WITNESS
What I was going to do is, after those things I was going to tell that delivery ordered by the President to
the COA, your Honor.
*Q
That is true, but what happened here is that you and Mr. Dabao or you and Mr. Peralta signed requests
for issuance of Managers checks and you were accommodated by
384
384
the PNB Office at Nichols without any internal documentation to justify your request for Managers
checks?
Yes, your Honor.
*Q
Of course we had no intimation at that time that Mr. Marcos will win the elections but even then, the
Daily Express, which was considered to be a newspaper friendly to the Marcoses at that time, would
occasionally come with so-called expose, is that not so?
A
Yes, your Honor.
*Q
And worst, you had the so-called mosquito press that would always come out with the real or imagined
scandal in the government and place it in the headline, do you re call that?
Yes, your Honor.
*PJ GARCHITORENA
*Q
Under these circumstances, did you not entertain some apprehension that some disloyal employees might
leak you out and banner headline it in some mosquito publications like the Malaya at that time?
WITNESS
No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the government and we
in the government fear the COA and we also fear the press. We might get dragged into press releases on
the most innocent thing. You believe that?
Yes, your Honor.
*Q
And usually our best defense is that these activities are properly documented?
Yes, your Honor.
*Q
In this particular instance, your witnesses have told us about three (3) different trips from Nichols to
Aguado usually late in the date almost in movie style fashion. I mean, the money being loaded in the trunk
of your official car and then you had a back-up truck following your car?
Yes, your Honor.

*Q
Is that not quite a fearful experience to you?
I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q
You did not think it fearful to be driving along Roxas Boulevard with P25 million in the trunk of you car?
385
385
WITNESS
We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million inside the trunk of
your car, was that not a nervous experience?
As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused.
x x x.42
(PERALTA)
(He testified on direct examination that he co-signed with Tabuena a memorandum request for the
issuance of the Managers Check for P5 Million upon order of Tabuena and that he [Peralta] was aware
that MIAA had an existing obligation with PNCC in the amount of around P27 Million. He affirmed having
accompanied Tabuena at the PNB Villamor Branch to withdraw the P5 Million, but denied having
misappropriated for his own benefit said amount or any portion thereof.)
CROSS-EXAMINATION BY PROS VIERNES
Will you please tell the Honorable Court why was it necessary for you to co-sign with Mr. Tabuena the
request for issuance of Managers check in the amount of P5 million?
At that time I was the Acting Financial Services Manager of MIAA, sir, and all withdrawals of funds should
have my signature because I was one of the signatories at that time.
As Acting Financial Services Manager of MIAA, you always co-sign with Mr. Tabuena in similar requests
for the issuance of Managers checks by the PNB?
That is the only occasion I signed, sir.
____________________________
42 TSN, May 2, 1990, pp. 11-27; Records, Vol. III, pp. 449-465.
386
386
Did you say you were ordered by Mr. Tabuena to sign the request?
Yes, sir, and I think the order is part of the exhibits. And based on that order, I co-signed in the request for
the issuance of Managers check in favor of Mr. Luis Tabuena.
PROS VIERNES
Was there a separate written order for you to co-sign with Mr. Tabuena?
WITNESS
Yes, sir, an order was given to me by Mr. Tabuena.
*PJ GARCHITORENA
Was that marked in evidence?
WITNESS
Yes, your Honor.
*PJ GARCHITORENA
What exhibit?
WITNESS
I have here a copy, your Honor. This was the order and it was marked as exhibit N.
PROS VIERNES
It was marked as Exhibit M, your Honor.
How did you know there was an existing liability of MIAA in favor of PNCC at that time?
Because prior to this memorandum of Mr. Tabuena, we prepared the financial statement of MIAA as of
December 31, 1985 and it came to my attention that there was an existing liability of around
P27,999,000.00, your Honor.
When was that Financial Statement prepared?

A
I prepared it around January 22 or 24, something like that, of 1986, sir.
Is it your usual practice to prepare the Financial Statement after the end of the year within three (3) weeks
after the end of the year?
Yes, sir, it was a normal procedure for the MIAA to prepare the Financial Statement on or before the 4th
Friday of the month because there will be a Board of Directors Meeting and the Financial Statement of
the prior month will be presented and discussed during the meeting.
*PJ GARCHITORENA
This matter of preparing Financial Statement was not an annual activity but a monthly activity?
387
387
Yes, your Honor.
*Q
This Financial Statement you prepared in January of 1986 recapitulated the financial condition as of the
end of the year?
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q
You made mention of a request for Escalation Clause by former Minister Ongpin. Did you personally see
that request?
When this order coming from Mr. Tabuena was shown to me, I was shown a copy, sir. I have no file
because I just read it.
It was Mr. Tabuena who showed you the letter of Minister Ongpin?
Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.
PROS VIERNES
You also stated that you were with Mr. Tabuena when you withdrew the amount of P5 million from the
PNB Extension Office at Villamor?
Yes, sir.
Why was it necessary for you to go with him on that occasion?
Mr. Tabuena requested me to do the counting by million, sir. So what I did was to bundle count the P5
million and it was placed in two (2) peerless boxes.
Did you actually participate in the counting of the money by bundles?
Yes, sir.
Q
Bundles of how much per bundle?
If I remember right, the bundles consisted of P100s and P50s, sir.
No P20s and P10s?
Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q
If there were other denominations, you can not recall?
Yes, your Honor.
388
388
PROS VIERNES
In how many boxes were those bills placed?
The P5 million were placed in two (2) peerless boxes, sir.
And you also went with Mr. Tabuena to Aguado?
No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of Mr. Tabuena, I was left
behind and I went back to my office at MIA.
Q
But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the afternoon?
I started counting it I think at around 4:30, sir. It was after office hours. But then I was there at around
4:00 oclock and we started counting at around 4:30 p.m. because they have to place it in a room, which
is the office of the Manager at that time.
And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that date?
Yes, sir. After we have counted the money, it was placed in the peerless boxes and Mr. Tabuena left for
Malacaang.
PROS VIERNES
And you yourself, returned to your office at MIA?
WITNESS
Yes, sir.
Until what time do you hold office at the MIA?
Usually I overstayed for one (1) or two (2) hours just to finish the paper works in the office, sir.
So, even if it was already after 5:00 oclock in the afternoon, you still went back to your office at MIA?
Yes, sir.
PROS VIERNES
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
*PJ GARCHITORENA
*AJ DEL ROSARIO
*Q
Did you not consider it as odd that your obligation with the PNCC had to be paid in cash?
389
389
WITNESS
Based on the order of President Marcos that we should pay in cash, it was not based on the normal
procedure, your Honor.
*Q
And, as Acting Financial Services Manager, you were aware that all disbursements should be covered by
vouchers?
Yes, your Honor, the payments should be covered by vouchers. But then, inasmuch as what we did was
to pre pare a request to the PNB, then this can be covered by Journal Voucher also.
*Q
Was such payment of P5 million covered by a Journal Voucher?
Yes, your Honor.
*Q
Did you present that Journal Voucher here in Court?

A
We have a copy, your Honor.
*Q
Do you have a copy or an excerpt of that Journal Voucher presented in Court to show that payment?
We have a copy of the Journal Voucher, your Honor.
*Q
Was this payment of P5 million ever recorded in a cashbook or other accounting books of MIAA?
The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q
In other words, the recording was made directly to the Journal?
WITNESS
Yes, your Honor.
*Q
There are no other separate documents as part of the application for Managers Check?
Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q
After the payment was made, did your office receive any receipt from PNCC?
I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa Gimenez, your Honor. Inasmuch
as the payment should be made through the Office of the President, I accepted the receipt given by Mrs.
Fe Gimenez to Mr. Tabuena.
*Q
After receiving that receipt, did you prepare the necessary supporting documents, vouchers, and use that
receipt as a supporting document to the voucher?
390
390
Your Honor, a Journal Voucher was prepared for that.
*Q
How about a disbursement voucher?
Inasmuch as this was a request for Managers check, no disbursement voucher was prepared, your Honor.
*AJ DEL ROSARIO
*Q
Since the payment was made on January 31, 1986, and that was very close to the election held in that
year, did you not entertain any doubt that the amounts were being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the ground that it is
improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q
As a Certified Public Accountant and Financial Manager of the MIAA, did you not consider it proper that a
check be issued only after it is covered by a disbursement voucher duly approved by the proper
authorities?
Your Honor, what we did was to send a request for a Managers check to the PNB based on the request
of Mr. Tabuena and the order of Mr. Tabuena was based on the Order of President Marcos.
*PJ GARCHITORENA
*Q
In your capacity as Financial Services Manager of the MIAA, did you not think it proper to have this
transaction covered by a disbursement voucher?
WITNESS
Based on my experience, payments out of cash can be made through cash vouchers, or even though
Journal Vouchers, or even through credit memo, your Honor.
391
391
*AJ HERMOSISIMA
*Q
This was an obligation of the MIAA to the PNCC. Why did you allow a disbursement by means of check in
favor of Mr. Luis Tabuena, your own manager?
We based the payment on the order of Mr. Tabuena because that was the order of President Marcos to
pay PNCC through the Office of the President and it should be paid in cash, your Honor.
*Q
You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
The order of president Marcos was legal at that time because the order was to pay PNCC the amount of
P5 million through the Office of the President and it should be paid in cash, your Honor. And at that time,
I know for a fact also that there was an existing P.D. wherein the President of the Republic of the
Philippines can transfer funds from one office to another and the PNCC is a quasi government entity at
that time.
*AJ HERMOSISIMA
*Q
Are you saying that this transaction was made on the basis of that P.D. which you referred to?
I am not aware of the motive of the President, but then since he is the President of the Philippines, his
order was to pay the PNCC through the Office of the President, your Honor.
*Q
As Financial Manager, why did you allow a payment in cash when ordinarily payment of an obligation of
MIAA is supposed to be paid in check?
I caused the payment through the name of Mr. Tabuena because that was the order of Mr. Tabuena and
also he received an order coming from the President of the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q
Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts ear
392
392
lier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.
WITNESS
Yes, your Honor.
*Q
Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because
of the exceptional nature of the transactions?
Yes, your Honor.
*Q
In other words, as an Accountant, you would not normally authorize such a movement of money unless it
is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher
in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
The transaction was fully documented since we have the order of the General Manager at that time and
the order of President Marcos, your Honor.
*Q
Are you saying the Order of the General Manager is an adequate basis for the movement of money?
Yes, your Honor, because at that time we have also a recorded liability of P27 million.
*Q
We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Man
393
393
ager by itself adequate with no other supporting papers, to justify the movement of funds?
A
Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing liability of P27,931,000.00 inas
much as we have that liability and I was shown the order of President Marcos to pay P5 million through
the Office of the President, I considered the order of Mr. Luis Tabuena, the order of President Marcos and
also the existing liability of P27 million sufficient to pay the amount of P5 million. Inasmuch as there is
also an escalation clause of P99.1 million, the payment of P5 million is fully covered by those existing
documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that time I know for a fact
that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not
to whatever you wanted to say. I know you are trying to protect yourself. We are aware of your statement
that there are all of these memoranda.
*Q
By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
WITNESS
As far as I am concerned, your Honor, inasmuch as we have a liability and I was shown the Order of
President Marcos to pay PNCC through his office, I feel that the order of the General Manager, the order
of President Marcos, and also the memorandum of Minister Ongpin are sufficient to cause the payment
of P5 million.
*PJ GARCHITORENA
*Q
This Presidential Decree which authorizes the President to transfer funds from one department to
another, is this
394
394
not the one that refers to the realignment of funds insofar as the Appropriation Act is concerned?
WITNESS
Because at that time, your Honor, I have knowledge that the President is authorized through a Presidential
Decree to transfer government funds from one office to another.
*PJ GARCHITORENA
*Q
Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
I think the liability was duly recorded and appropriations to pay the amount is . . . . (interrupted)
*PJ GARCHITORENA
*Q
Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the
hope that we will forget what the question is?
No, your Honor.
*Q
Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling us you did not read the Decree?
I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q
It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
No, your Honor.
*Q
In fact, for purposes of internal control, you have different officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?
Yes, your Honor.
*Q
So that when disbursements of funds are made, they are made by authority of not only one person alone
so that nobody will restrain him?
Yes, your Honor.
395
395
*Q
These checks and balances exist in an entity so that no one person can dispose of funds in any way he
likes?
Yes, your Honor.
*Q
And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?
Yes, your Honor.
*PJ GARCHITORENA
*Q
In other words, the co-signatories counter check each other?
WITNESS
Yes, your Honor.
*Q
In your case, you would be the counter check for Mr. Tabuena?
Yes, your Honor.
*Q
In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it, if in your opinion the disbursement is not proper?
Yes, your Honor.
*Q
Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?
Yes, your Honor.
*Q
And this is something you know by the nature of your position and because you are a Certified Public
Accountant?
Yes, your Honor.

*AJ DEL ROSARIO
*Q
You admit that the payment of P5 million and P50 million were unusual in the manner with which they
were disposed?
Yes, your Honor.
*Q
Did you submit a written protest to the manner in which such amount was being disposed of?
A written protest was not made, your Honor, but I called the attention of Mr. Tabuena that since this
payment was upon the order of President Marcos, then I think as President he can do things which are
not ordinary.
396
396
*Q
If you did not prepare a written protest, did you at least prepare a memorandum for the record that this
was an extra-ordinary transaction?
I called the attention of Mr. Tabuena that this was an extra-ordinary transaction and no written note, your
Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused.
x x x.43
This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his
mind upon any material point which presents itself during the trial of a case over which he presides.44
But not only should his examination be limited to asking clarificatory questions,45 the right should be
sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible,
neither interfering nor intervening in the conduct of the trial.46 Here, these limitations were not
observed. Hardly in fact can one avoid the impression that the Sandiganbayan had allied itself with, or to
be more precise, had taken the cudgels for the prosecution in proving the case against Tabuena and
Peralta when the Justices cross-examined the witnesses, their cross-examinations supplementing those
made by Prosecutor Viernes and far exceeding the latters questions in length. The cold neutrality of an
impartial judge requirement of due process was certainly denied Tabuena and Peralta when the court,
with its overzealousness, assumed the dual role of magistrate and advocate. In this connection, the
observation made in the Dissenting Opinion to the effect that the majority of this Court was unduly
disturbed with the number of court questions alone, is quite inaccurate. A substantial portion of the TSN
was incorporated in the majority opinion not to focus
____________________________
44 US v. Hudieres, 27 Phil. 45; US v. Lim Kui, 35 Phil. 504; US v. Binayao, 35 Phil. 23.
45 People v. Opida, 142 SCRA 295.
46 York v. US, 299 Fed. 778.
397
397
on numbers alone, but more importantly to show that the court questions were in the interest of the
prosecution and which thus depart from that common standard of fairness and impartiality. In fact, it is
very difficult to be, upon review of the records, confronted with numbers without necessarily realizing
the partiality of the Court. In US v. De Sisto (2 Cir., 1961, 289 F 2d 833), for example, a new trial was
required because the trial judge, as in this case, indulged in extensive questioning of defendant and his
witnesses, and the reviewing court also had to amplify on numbers to bolster this. It was pointed out in
the De Sisto case that the judge asked 3,115 questions of all witnesses, the prosecutor asked but 1,381,
defense counsel 3,330. The judges questions to the defendant De Sisto totalled 306, the prosecutors
347, and the defense counsels 201. After referring to these figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of itself

determinative. However, taking all this in conjunction with the long and vigorous examination of the
defendant himself by the judge, and the repeated belittling by the judge of defendants efforts to establish
the time that Fine left the pier, we fear that in its zeal for arriving at the facts the court here conveyed to
the jury too strong an impression of the courts belief in the defendants probable guilt to permit the jury
freely to perform its own function of independent determination of the facts. x x x
The majority believes that the interference by the Sandiganbayan Justices was just too excessive that it
cannot be justified under the norm applied to a jury trial, or even under the standard employed in a non-
jury trial where the judge is admittedly given more leeway in propounding questions to clarify points and
to elicit additional relevant evidence. At the risk of being repetitious, we will amplify on this via some
specific examples. Based on the evidence on record, and on the admission of Tabuena himself, the P55
million was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the Presidential
directive. One Sandiganbayan Justice, however, hurled the following questions to Peralta:
398
398
AJ DEL ROSARIO
Q:
Since the payment was made on January 31, 1986, and that was very close to the election held in that
year, did you not entertain any doubt that the amounts were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the question on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would serve as basis for this question.
How then, can this be considered even relevant? What is the connection between the payment made to
the Presidents office and the then forthcoming presidential snap election? In another instance,
consider the following questions of Presiding Justice Garchitorena:
*PJ GARCHITORENA
*Q
Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct certain statements of
accounts earlier made in the same journal?
xxx
*Q
In other words, really what you are telling us is that, a Journal Voucher is to explain a transaction was
otherwise not recorded.
xxx
*Q
Therefore, when you said that a Journal Voucher here is proper, you are saying it is proper only because
of the exceptional nature of the transactions?
xxx
399
399
*Q
In other words, as an Accountant, you would not normally authorize such a movement of money unless it
is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading because what the
witness stated is . . .
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are speaking, and
therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that . . .
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the Journal Voucher
in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
The transaction was fully documented since we have the order of the General Manager at that time and
the order of President Marcos, your Honor.
*Q
Are you saying the Order of the General Manager is an adequate basis for the movement of money?
*Q
We are not talking of whether or not there was a liability. What we are saying is, is the order of the General
Manager by itself adequate with no other supporting papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you whether or not there was
valid obligation. We are not asking you about the escalation clause. We are asking you whether or not this
particular order of Mr. Tabuena is an adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question being asked and not
to what-
400
400
ever you wanted to say. I know you are trying to protect yourself. We are aware of your statement that
there are all of these memoranda.
*Q
By your disbursement of such amount, you are saying that the order of Mr. Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q
This Presidential Decree which authorizes the President to transfer funds from one department to
another, is this not the one that refers to the realignment of funds insofar as the Appropriation Act is
concerned?
*PJ GARCHITORENA
*Q
Under the Appropriation Act. Are payments of debts of the MIAA covered by the Appropriation Act?
*PJ GARCHITORENA
*Q
Tell me honestly, is your answer responsive to the question or are you just throwing words at us in the
hope that we will forget what the question is?
xxx
*Q
Are you telling us that the debts incurred by MIAA are covered by the Appropriations Act so that the
payment of this debt would be in the same level as the realignment of funds authorized the President? Or
are you telling us you did not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing this movement of
funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q
It is true that President Marcos was the President, but he was not an officer of the MIAA, was he?
*Q
In fact, for purposes of internal control, you have different officers and different officials in any company
either government or private, which are supposed to check and balance each other, is it not?
*Q
So that when disbursements of funds are made, they are made by authority of not only one person alone
so that nobody will restrain him?
*Q
These checks and balances exist in an entity so that no one person can dispose of funds in any way he
likes?
401
401
*Q
And in fact, the purpose for having two (2) signatories to documents and negotiable documents is for the
same purpose?
*PJ GARCHITORENA
*Q
In other words, the co-signatories counter check each other?

*Q
In your case, you would be the counter check for Mr. Tabuena?
*Q
In other words, even if Mr. Tabuena is the Manager, you as Financial Services Manager and as counter
signatory are in a position to tell Mr. Tabuena, I am sorry, you are my superior but this disbursement is
not proper and, therefore, I will not sign it., if in your opinion the disbursement is not proper?
*Q
Therefore, as co-signatory, you are expected to exercise your judgment as to the propriety of a particular
transaction?
*Q
And this is something you know by the nature of your position and because you are a Certified Public
Accountant?47
How can these questions be considered clarificatory when they clearly border more on cross-examination
questions? Thus, the Dissenting Opinions focus on the distinction between the two kinds of trial to justify
the Sandiganbayans active participation in the examination of petitioners Tabuena and Peralta and
witness Monera, with due respect, appears insignificant to this case. Let it, therefore, be emphasized
anew that:
A trial judge should not participate in the examination of witnesses as to create the impression that he
is allied with the prosecution.48
We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but
it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge
may be for the enforcement of the law, he should always remember that he is as much judge in behalf of
the defen-
____________________________
48 People v. Opida, supra.
402
402

dant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose
of safeguarding the interests of society.49
Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The
circumstances may be such in a given case as to justify the court in so doing . . . . This court, however, has
more than once said that the examination of witnesses is the more appropriate function of counsel, and
the instances are rare and the conditions exceptional which will justify the presiding judge in conducting
an extensive examination. It is always embarrassing for counsel to object to what he may deem improper
questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the
judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his
duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The
extent to which this shall be done must largely be a matter of discretion, to be determined by the
circumstances of each particular case, but in so doing he must not forget the function of the judge and
assume that of an advocate . . . .50
While it is true that the manner in which a witness shall be examined is largely in the discretion of the
trial judge, it must be understood that we have not adopted in this country the practice of making the
presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial
procedure, even at the expense of occasional delays . . . . The judge is an important figure in the trial of a
cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice
shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of
counsel.51
The examination of witnesses is the more appropriate function of counsel, and it is believed the instances
are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering
upon and conducting an extended examination of a witness, and that the exercise of a sound discretion
will seldom deem such action necessary or advisable.52
____________________________
49 Murphy v. State, 13 Ga. App. 431, 79 S.E. 228.
50 People v. Bernstein, 250 Ill. 63, 95 N.E. 50.
51 Dreyer v. Ershowsky, 156 App. Div. 27, 140 N.Y. Supp. 819.
52 Dunn v. People, 172 Ill. 582, 50 N.E. 137.
403
403

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary
waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference,
impatience, or participation in the examination of witnesses, or a severe attitude on his part toward
witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend
to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.53
The impartiality of the judgehis avoidance of the appearance of becoming the advocate of either one
side or the other of the pending controversy is a fundamental and essential rule of special importance in
criminal cases . . . .54
Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and
to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the
parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order
not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty
of all to strive for the preservation of the peoples faith in our courts.55
Time and again this Court has declared that due process requires no less than the cold neutrality of an
impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but
must also appear to be impartial, to give added assurance to the parties that his decision will be just. The
parties are entitled to no less than this, as a minimum guaranty of due process.56
We are well aware of the fear entertained by some that this decision may set a dangerous precedent in
that those guilty of enriching themselves at the expense of the public would be able to escape criminal
liability by the mere expedient of invoking good faith. It must never be forgotten, however, that we
render justice on a case to case basis, always in consideration of the evidence that is presented. Thus,
where the evi-
____________________________
53 Com. v. Myma, 278 Pa. 505, 123 Atl. 786.
54 Adler v. US, 104 C.C.A. 608, 108 Fed. 464.
55 Companer v. Alano, CA-G.R. No. 2558-R, December 15, 1948.
56 People vs. Opida, supra.
404
404
dence warrants an acquittal, as in this case, we are mandated not only by the dictates of law but likewise
of conscience to grant the same. On the other hand, it does not follow that all those similarly accused will
necessarily be acquitted upon reliance on this case as a precedent. For the decision in this case to be a
precedent, the peculiar circumstances and the evidence that led to the petitioners acquittal must also be
present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous precedent and an actual violation of

constitutionally enshrined rights, it is definitely the latter that merits our immediate attention. For the
most dangerous precedent arises when we allow ourselves to be carried away by such fears so that it
becomes lawful to sacrifice the rights of an accused to calm the fearful. In our eagerness to bring to justice
the malefactors of the Marcos regime, we must not succumb to the temptation to commit the greatest
injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A. Tabuena and Adolfo M. Peralta are hereby
ACQUITTED of the crime of malversation as defined and penalized under Article 217 of the Revised Penal
Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution dated December 20, 1991 are
REVERSED and SET ASIDE.
SO ORDERED.
Narvasa (C.J.), Vitug, Kapunan and Mendoza, JJ., concur.
Padilla, J., I join Justices Davide, Romero and Puno in their Dissenting Opinions.
Regalado, Bellosillo and Torres, Jr., JJ., Pro hac vice.
Davide, Jr., Please see my dissenting opinion.
Romero, J., Please see my dissenting opinion.
Melo, J., I join the dissents.
Puno, J., Please see Dissent.
405
405
Hermosisima, Jr., J., No part. Signatory to SB decision.
Panganiban, J., Please see Dissenting Opinion. I join Mme. Justice Romeros Dissenting Opinion as well
as those of JJ. Davide and Puno.
DISSENTING OPINION
DAVIDE, JR., J.:

Last 20 September 1996 in Regala v. Sandiganbayan,1 this Court erected a barrier to the constitutionally
mandated task to recover ill-gotten wealth and in the punishment of those who dirtied their hands with
it. This the Court did by impliedly granting immunity from civil suit or liability under an expanded
interpretation of the lawyer-client privilege, lawyers who were alleged to have acted as co-conspirators
or dummies of certain parties in the acquisition of such wealth.
The acquittal decreed by the majority in the cases under consideration places another obstacle to such
recovery and punishment by granting immunity from any criminal liability those who were ordered by
then President Marcos to disburse government funds for alleged payment of obligations. This is the
immediate impression anyone can get from the following sweeping pronouncement in the ponencia:2
In the case at bench, the order emanated from the office of the President and bears the signature of the
President himself, the highest official of the land. It carries with it the presumption that it was regularly
issued. And on its face, the memorandum is patently lawful for no law makes the payment of an obligation
illegal. This fact, coupled with the urgent tenor for its execution constrains one to act swiftly without
question. Obedientia est legis essentia . . . .
What this suggests is that no one could disobey then President Marcos, a suggestion made more eloquent
with the quotation of the dissenting opinion of Mr. Justice Cruz in Devel-
____________________________
1 G.R. No. 105938.
2 Page 26.
406
406
opment Bank of the Philippines v. Pundogar.3 That dissent cannot be used to justify the petitioners
obedience, otherwise, this Court would thus overturn the majority opinion in the said case and adopt
the dissent as the new rule.
Henceforth, all those similarly situated as the appellants or those who could simply provide any reason
for their compelled obedience to Mr. Marcos can go scot-free. The meaning of EDSA and its message for
history would thus be obliterated. The acquittal then perpetuates a sad day for this Courta day of
mourning for those who fought against the dictatorship and of triumph and joy for the dictators
collaborators, nominees, associates, and friends.
I cannot join the majority in these cases.
My analysis of the ponencia indicates that the acquittal is based on the following:
1. The accused-appellants merely acted in obedience to an order by a superior for some lawful purpose;
hence, they incur no criminal liability pursuant to Article 11(6) of the Revised Penal Code.
2. Even granting that the order was not for a lawful purpose, they acted in good faith.
3. Their basic constitutional right to due process was violated by the way the Sandiganbayan actively took
part in the questioning of a defense witness and of the accused themselves.
I shall first take up the third.
The ponencia admits that the appellants did not raise as an issue the Sandiganbayans violation of their
right to due process; nevertheless, it ruled that such failure is not an impediment to the consideration of
the violation as additional basis for a reversal since the settled doctrine is that an appeal throws the
whole case open to review, and it becomes the duty of the appellate court to correct such errors as may
be found
____________________________
3 218 SCRA 118, 163 [1993].
407
407
in the judgment appealed from whether they are made the subject of assignments of error or not.4
I beg to disagree.
First, there is no showing at all that the extensive participation by the Justices of the Sandiganbayan in
questioning the appellants and their witness indicated prejudgment of guilt, bias, hatred, or hostility
against the said appellants. On the contrary, the quoted portions of the questions propounded by the
Justices manifest nothing but a sincere desire to ferret out the facts to arrive at the truth which are crucial
in the determination of the innocence or guilt of the appellants. These Justices, as trial magistrates, have
only exercised one of the inherent rights of a judge in the exercise of judicial function. What this Court
stated eighty-three years ago in United States v. Hudieres 5 needs repeating:
It is very clear, however, from a review of the whole proceedings that the only object of the trial judge in
propounding these questions was to endeavor as far as possible to get at the truth as to the facts to which
the witnesses were testifying. The right of a trial judge to question the witnesses with a view to satisfying
his mind upon any material point which presents itself during the trial of a case over which he presides is
too well established to need discussion. The trial judges in this jurisdiction are judges of both the law and
the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage
of justice as a result of a failure to propound a proper question to a witness which might develop some
material fact upon which the judgment of the case should turn. So in a case where a trial judge sees that
the degree of credit which he is to give the testimony of a given witness may have an important bearing
upon the outcome, there can be no question that in the exercise of a sound discretion he may put such
questions to the witness as will enable him to formulate a sound opinion as to the ability or willingness of
the witness to tell the truth. The questions asked by the trial judge in the case at bar were in our opinion
en-
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4 Citing People v. Olfindo, 47 Phil. 1 (1924), citing U.S. vs. Abijan, 1 Phil. 83 [1902]; People vs. Borbano, 76
Phil. 703 [1946]; Perez v. Court of Appeals, 127 SCRA 636 [1984].
5 27 Phil. 45, 47-48 [1914].
408
408
tirely proper, their only purpose being to clarify certain obscure phases of the case; and while we are
inclined to agree with counsel that some of the observations of the trial judge in the course of his
examination might well have been omitted, there is no reason whatever to believe that the substantial
rights of the defendants were in anywise prejudiced thereby.
That the appellants themselves did not find any impropriety in the conduct of the Justices, or that if they
did find nothing therein to prejudice their right to due process is bestproven by their failure to assign it as
error.
Second, even granting arguendo that the conduct of the Justices constituted such a violation, the
appellants are forever estopped from raising that issue on ground of waiver. This Court would risk an
accusation of undue partiality for the appellants were it to give them premium for their torpor and then
reward them with an acquittal. Such waiver is conclusively proven in these cases. From the quoted
portions of the testimonies of the witnesses for the appellants, it is clear that their counsel did not object
to, or manifest on record his misgivings on, the active participation of the Justices in the examination (or
cross-examination) of the witnesses. Nothing could have prevented the counsel for the appellants from
doing so. Then, too, as correctly pointed out in the ponencia, they made no assignment of error on the
matter.
In our jurisdiction, rights may be waived unless the waiver is contrary to law, public order, public policy,
morals, or good customs, or is prejudicial to a third person with a right recognized by law.6
In People v. Donato,7 this Court made the following statement on what rights may be waived:
As to what rights and privileges may be waived, the authority is settled:
x x x the doctrine of waiver extends to rights and privileges of any character, and, since the word waiver
covers
____________________________
6 Article 6, Civil Code.
7 198 SCRA 130, 154-155 [1991].
409
409
every conceivable right, it is the general rule that a person may waive any matter which affects his
property, and any alienable right or privilege of which he is the owner or which belongs to him or to which
he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution,
provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe
on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law,
and does not contravene public policy; and the principle is recognized that everyone has a right to waive,
and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and relinquished without infringing on any
public right, and without detriment to the community at large. x x x
Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution
may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative
and void if it infringes on the rights of others, or would be against public policy or morals and the public
interest may be waived.
While it has been stated generally that all personal rights conferred by statute and guaranteed by
constitution may be waived, it has also been said that constitutional provisions intended to protect
property may be waived, and even some of the constitutional rights created to secure personal liberty are
subjects of waiver.8
In Commonwealth vs. Petrillo,9 it was held:
Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as
well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature
of personal privileges. Those of the first class cannot be waived; those of the second may be.
____________________________
8 Citing 92 C.J.S. 1066-1068 (italics supplied for emphasis).
9 Citing 16 A. 2d 50, 57, 340 Pa. 33, cited in note 71 C.J.S., 1068.
410
410
It is competent for a person to waive a right guaranteed by the Constitution, and to consent to action
which would be invalid if taken against his will.10
This Court has recognized waivers of constitutional rights such as, for example, the right against
unreasonable searches and seizures;11 the right to counsel and to remain silent;12 and the right to be
heard.13
Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section
12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel,
preferably of his own choice states:
x x x These rights cannot be waived except in writing and in the presence of counsel.
This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests
that the other rights may be waived in some other form or manner provided such waiver will not offend
Article 6 of the Civil Code.
We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a
right which is personal to the accused and whose waiver would not be contrary to law, public order, public
policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.
In the cases below, the perceived violation, if at all it existed, was not of the absolute totality of due
process, but more appropriately of the right to an impartial trial, which is but
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10 Citing ARTURO M. TOLENTINO, Civil Code of the Philippines, vol. 1, 1985 ed., 31-32, citing Waxman v.
United States, 12 Fed. 2nd, 775.
11 Citing People v. Malasugui, 63 Phil. 221 [1936]; de Garcia v. Locsin, 65 Phil. 689 [1938].
12 Citing People v. Royo, 114 SCRA 304 [1982]; Morales v. Enrile, 121 SCRA 538 [1983]; People v. Colana,
126 SCRA 23 [1983]; People v. Sanchez, 132 SCRA 103 [1984]; People v. Galit, 135 SCRA 465 [1985]; People
v. Quizon, 142 SCRA 362 [1986].
13 Citing Abriol v. Homeres, 84 Phil. 525 [1949]; People v. Dichoso, 96 SCRA 957 [1980].
411
411
an aspect of the guarantee of due process.14 I submit that the right to an impartial trial is waivable.
II
I also disagree with the view of the majority that all the requisites of the sixth justifying circumstance in
Article 11 of the Revised Penal Code are present. I submit that the 8 January 1986 Memorandum of
President Marcos can by no means be considered a lawful order to pay P55 million to the PNCC as
alleged partial payment of the MIAAs account to the former. The alleged basis of such Memorandum is
the 7 January 1985 Memorandum of Trade and Industry Minister Roberto Ongpin, which even confirms
the absence of any factual basis for the order of payment of P55 million:
In this connection, please be informed that Philippine National Construction Corporation (PNCC), formerly
CDCP, has accomplishment billings on the MIA Development Project aggregating P98.4 million, inclusive
of accomplishments for the aforecited contracts. In accordance with contract provisions, outstanding
advances totalling P93.9 million are to be deducted from said billings which will leave a net amount due
to PNCC of only P4.5 million, thus: At the same time, PNCC has potential escalation claims amounting to
P99 million in the following states of approved/evaluation:
Approved by Price Escalation Committee (PEC) but pending for lack of funds
P 1.9 million
Endorsed by project consultants and currently being evaluated by PEC
30.7 million
Submitted by PNCC directly to PEC and currently under evaluation
66.5 million
Total
P99.1 million
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14 JOAQUIN G. BERNAS, the Constitution of the Republic of the Philippines, vol. 1 [1987], 387.
412
412
There has been no funding allocation for any of the above escalation claims due to budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet residual amounts due
to PNCC have not been paid, resulting in undue burden to PNCC due to additional cost of money to service
its obligations for this contract.
we request for His Excellencys approval for a deferment of the repayment of PNCCs advances to the
extent of P30 million corresponding to about 30% of P99.1 million in escalation claims of PNCC, of which
P32.5 million has been officially recognized by MIADP consultants but could not be paid due to lack of
fundings.
If Ongpins memorandum is given full faith, it is clear that PNCCs accomplishment billings for work
accomplished, including accomplishments on the supplemental contracts (whose authority therefor
was just sought for), aggregated to P98.4 million. Since there were advances given to PNCC in the total
amount of P93.9 million, the net amount due the PNCC was only P4.5 million.
However, in view of the approval by then President Marcos of Ongpins request for a deferment of the
repayment of PNCCs advances to the extent of P30 million, only P63.9 million of PNCCs advances was
to be deducted from the accomplishment billings of P98.4 million. The net amount due thus became P34.5
million. Hence, as pointed out by the Sandiganbayan, if any payments were due under Ongpins
Memorandum, they would only be for that amount (P34.5 million). The Order of then President Marcos
to withdraw has, therefore, exceeded by P20.5 million. Clearly, the order of payment of P55 million had
no factual and legal basis and was therefore unlawful.
413
413

III
Not an iota of good faith was shown in the conduct of the appellants.
Being responsible accountable officers of the MIAA, they were presumed to know that, in light of the
undeferred portion of the repayment of PNCCs advances in the amount of P63.9 million, the MIAAs
unpaid balance was only P34.5 million. They also ought to know the procedure to be followed in the
payment of contractual obligations. First and foremost there were the submission by the PNCC of its
claims with the required supporting documents and the approval of the claims by the appropriate
approving authority of MIAA. When then President Marcos ordered immediate payment, he should not
have been understood as to order suspension of the accepted budgeting, accounting, and auditing rules
on the matter. Parenthetically, it may be stated here that although President Marcos was a dictator, he
was reported to be, and even projected himself as, a faithful advocate of the rule of law. As a matter of
fact, he did not hesitate to issue a decree, letter of instruction, or any presidential issuance in anticipation
of any planned actions or activities to give the latter the facade or semblance of legality, wisdom, or
propriety. When he made the order to appellant Tabuena, President Marcos must only be understood to
order expeditious compliance with the requirements to facilitate immediate release of the money. There
was no way for Tabuena to entertain any fear that disobedience to the order because of its unlawfulness
or delay in the execution of the order due to compliance with the requirements would cause his head or
life. He offered no credible evidence for such fear. This Court should not provide one for him. That
Tabuena served Mr. Marcos until the end of the latters regime and even beyond only proved a loyalty
not based on fear but on other considerations.
Moreover, the manner the appellant effected the withdrawal was most unusual, irregular, and
anomalous. He has not shown any evidence that what he did was the usual practice in his office.
414
414
What happened in this case showed the appellants complicity as principals by direct participation in the
malversation of the MIAAs funds. The appellants should, therefore, be thankful to the Sandiganbayan for
holding them liable therefor only through negligence.
I vote then to AFFIRM in toto the assailed decision.
DISSENTING OPINION
ROMERO, J.:
Obedience, rightly directed, is a virtue well-worth cultivatingobedience of children to their elders;

obedience to lawful authority by citizens; obedience to the behests of what is highest and finest in ones
self.
Misguided, such as indiscriminate obeisance to questionable mandates, no matter if emanating from
authoritative figures whose slightest whisper and scribbled orders are law, this can lead man to perdition.
In government, a pliant bureaucracy that is disinclined to resist unethical, immoral, even downright illegal
directives from above is easily corrupted and can only bring disrepute to the entire system. In this
context, can subordinate public officials like herein petitioner escape criminal prosecution by the simple
expedient of claiming that they were merely following orders from a superior? This disquisition will
demonstrate that certain requisites are indispensable before anyone can claim immunity from penal
sanctions for seemingly justifiable acts.
This dissenting opinion will narrate the facts for the sake of accuracy for the ponencia seems to have
overlooked or glossed over vital circumstances which make the conclusion embodied herein irresistible.
Petitioners were charged with violation of Article 217 of the Revised Penal Code (the Code) for alleged
malversation of a total of P55 million from the public funds of the Manila International Airport Authority
(MIAA). The informations filed on three separate dates in 1986 accused them, as accountable
415
415
officers, of intentionally withdrawing said amount for the ostensible purpose of paying a non-existent
obligation of MIAA to the Philippine National Construction Corporation (PNCC), but which they
misappropriated and converted for their personal use and benefit.
In their defense, petitioners claimed they acted in good faith and in compliance with a verbal and later, a
written order from no less than former President Ferdinand E. Marcos. In a Presidential Memorandum
(the Marcos Memorandum) dated January 8, 1986, the latter allegedly commanded petitioner Tabuena,
in his capacity as General Manager of MIAA, to pay immediately the Philippine National Construction
Corporation, thru this Office (Office of the President), the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs account with said company mentioned in a Memorandum of
(Trade and Industry) Minister Roberto Ongpin to this Office dated January 7, 1985 . . . .1 (The Ongpin
Memorandum). On the assumption that MIAA indeed had a due and demandable debt to PNCC for work
done on the airport, Tabuena, with the help of Gerardo G. Dabao and Adolfo M. Peralta, MIAA Assistant
General Manager and Financial Services Department Acting Manager, respectively, made three
withdrawals from the account of MIAA with the Philippine National Bank first, on January 10, 1986 for P5
million, then on January 16, 1986 for another P25 million and lastly, on January 31, 1986 for P5 million.
The three managers checks covering the withdrawals were all applied for and issued in the name of
Tabuena. Curiously, while the checks were issued by the MIA extension office of PNB, they were encashed
at the Villamor Air Base branch. Each time the cash was delivered directly to the office of Marcos private
secretary, Fe Roa-Gimenez. The latter issued a receipt2 signed by her but only after the last delivery. No
PNCC receipt was ever given to petitioners.
____________________________
1 Exh. 1, Rollo, p. 231.
2 Exh. 3, ibid., p. 234.
416
416
On October 22, 1990, the Sandiganbayans First Division rendered a decision finding petitioners guilty.
Petitioners raise two issues, namely, that they were charged with intentional malversation (which they
labelled as malversation by direct appropriation) but were convicted of malversation by negligence, and
that they acted in good faith. As regards the first argument, the variance between the crime charged and
that proved by the prosecution is immaterial, as stated by the ponente.
As regards the second issue, it is argued that good faith is a valid defense in malversation for it negates
criminal intent. Petitioners claim that when they committed the acts complained of, they were merely
following then President Marcos oral and written directives. They rely on Article 11, paragraph 6 of the
Code which states, inter alia:
ART. 11. Justifying circumstances.The following do not incur any criminal liability:
xxx xxx xxx
6. Any person who acts in obedience to an order issued by a superior for some lawful purpose.
For an act to be justified under the abovequoted provision, therefore, three requisites must concur: (a)
an order must have been issued by a superior; (b) the order must be for a lawful purpose; and (c) the
means used by the subordinate in carrying out such order must itself be lawful.3
In the case at bar, Tabuena was allegedly ordered by President Marcos to pay the PNCC from MIAAs fund,
thus ostensibly meeting the first requirement but not the others. For there is a qualification which
significantly changes the picture. The payment was to be in cash and immediately made through the Office
of the President. It is to be pointed out that it is one thing to be ordered to pay a due and demandable
obligation; it is another to make such payment to someone
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3 Reyes, The Revised Penal Code, I, 1993, pp. 203-204; Kapunan and Faylona, Criminal Law, 1993, p. 82.
417
417
other than the lawful obligee and worse, when the subordinate is forced to breach official channels to
comply with the order.
It must be stressed that Tabuena and his co-accused, Peralta and Dabao, disregarded standard operating
procedures in following the Presidents order. As observed by the Sandiganbayan, there were no
vouchers to authorize the disbursements in question. There were no bills to support the disbursement.
There were no certifications as to the availability of funds for an unquestionably staggering sum of P55
Million. Disbursement vouchers are specifically required under Sec. 4 (5) of Presidential Decree No. 1445
(P.D. No. 1445), while the certificate of availability of funds is needed to comply with Sec. 47, Title I-B, Bk.
V of the Administrative Code of 19874 and Sec. 344 of the Local Government Code of 1991.5 To compound
the duplicity, the checks, issued by one branch of PNB were encashed in anotherall made in cash instead
of by crossed check payable to PNCC! Conspicuously, such cash outlay was made without prior approval
or authority of the Commission on Audit.6 Finally, the last two payments were made despite the non-
issuance of a receipt for the first. In fact, the receipt given after the delivery of the last installment was
not even issued by the PNCC, the legal obligee and avowed recipient of the money. Instead it emanated
from the office of Roa-Gimenez, a complete stranger to the alleged contract between MIAA and PNCC,
who did not even indicate in what capacity she signed it. To compound the mystery, the money was even
delivered to her office, not in Malacaang, but at nearby Aguado Street. The entire process, done with
haste and with a total disregard of appropriate auditing re-
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4 Sec. 607, Chapter 26, Title VII, The Administrative Code.
5 A new provision which was not in Batas Pambansa Blg. 337 (The Local Government Code of 1983).
6 COA Circular No. 91350 dated March 4, 1991, increased the ceiling for cash payments from P5,000.00
to P10,000.00. The Basic Guidelines for Internal Control, issued by the COA on January 31, 1977, set the
ceiling even lower at P1,000.00.
418
418

quirements was, in the words of petitioners themselves, an extraordinary transaction,7 admittedly out
of the ordinary and not based on normal procedure.8
Disbursement of government funds, especially one as gargantuan as the one made by petitioners, is a
complex process, unlike the basic over-the-counter transaction that they purportedly made it to appear.
Far from being lawful, the payment of the alleged obligation of MIAA to PNCC through the Office of the
President may at best be labelled as irregular. The term irregular expenditure signifies an expenditure
incurred without adhering to established rules, regulations, procedural guidelines, policies, principles or
practices that have gained recognition in law. Irregular expenditures are incurred without conforming
with prescribed usages and rules of discipline. There is no observance of an established pattern, course,
mode of action, behavior, or conduct in the incurrence of an irregular expenditure . . . .9
Specifically, disbursement of public funds must conform with the following principles:
(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.10
(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly,
for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious teacher, or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or
government orphanage or leprosarium.11
(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid
out for such purpose only. If the purpose for which this special fund was created has been
____________________________
7 TSN, May 2, 1990, p. 53.
8 Ibid., p. 17.
9 COA Circular No. 85-55-A, September 8, 1985.
10 Sec. 29 (1), Art. VI, 1987 Constitution (Sec. 18 [1], Art. VIII, 1973 Constitution).
11 Section 29 (2), ibid. (Section 18 [2], ibid.).
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fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.12
(4) All resources of the government shall be managed, expended or utilized in accordance with law and
regulations and safeguarded against loss or wastage through illegal or improper disposition to ensure
efficiency, economy and effectiveness in the operations of government. The responsibility to take care
such policy is faithfully adhered to rests directly with the chief or head of the government agency
concerned.13
(5) Disbursement or disposition of government funds or property shall invariably bear the approval of the
proper officials.14
(6) Claims against government funds shall be supported with complete documentation.15
(7) All laws and regulations applicable to financial transactions shall be faithfully adhered to.16
(8) Generally accepted principles and practices of accounting as well as of sound management and fiscal
administration shall be observed, provided that they do not contravene existing laws and regulations.17
Assuming arguendo that petitioners acted in good faith in following the Presidents order, undeniably,
they were negligent as found by the trial court. The instructions in the Presidents order should have
sufficed to put any accountable head of an office, Tabuena included, on guard. Why was he being required
to pay MIAAs obligation to the PNCC, if indeed there were any, and not directly to the latter but through
the Office of the President? Why was the entire transaction not coursed through proper channels, viz.,
the accounting office?
____________________________
12 Section 29 (3), ibid. (new provision).
13 Section 1, Chapter I, Title I-B, Bk. V, The Administrative Code of 1987 (new).
14 Section 4 (5), P.D. 1445; Section 344, 1991 Local Government Code (new).
15 Section 4 (6) and Section 55 (4), ibid.; COA Circular 78-84, August 1, 1978, COA Circular 81-155.
16 Section 4 (7) and Section 55 (2), ibid.
17 Section 4 (8), ibid.
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Why was such a huge disbursement to be made in cash, instead of by crossed check, which is not only
safer, faster, and more convenient, but in accord with auditing requirements?
Obedience to a superiors order does not connote blind obedience. Being the general manager of such a
mammoth organization like the MIAA, he should, at the very least, have exercised ordinary prudence by
verifying with the proper official under him whether the agency had indeed an outstanding indebtedness
to the PNCC before ordering any payment to be made through official channels. Such routine measures
were cavalierly disregarded. The whole process seemed no different from a petty, personal transaction.
As evidence later revealed, PNCCs receivables from MIAA amounted to P102,475,392.35, the bulk of
which comprised escalation charges. From that time until Corazon C. Aquino assumed the Presidency, a
total of P44.4 million was paid, but only P2 million of this in cash; the rest was set off or compensated
against other debts, or assigned to other creditors. The financial records did not show that PNCC received
any sums of money from MIAA during the period January to June, 1986 when the block payments were
being made in quarter millions. Only on September 25, 1986, long after President Marcos had gone, was
an assignment of P23 million actually made by MIAA in favor of PNCC.18
Even the Ongpin Memorandum, which is the basis of the Marcos Memorandum, failed to show where the
amount of P55 million cropped up. The former contained, inter alia, the following matters: (a) it requested
the Presidents approval of Minister Ongpins recommendations for eight (8) supplemental contracts
pertaining to the MIA Development Project (MIADP) between the Bureau of Air Transport (BAT) and
Philippine National Construction Corporation (PNCC), formerly CDCP, . . . .;19 (b) it informed the
President that PNCC had collectibles from MIAA only in the amount of P4.5 million, which is the difference
between the accomplishment
____________________________
18 TSN, March 17, 1989, pp. 7-20.
19 Exhibit 2, Rollo, p. 232.
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billings on the MIADP totalling P98.4 million and PNCCs advances of P93.9 million; and (c) it informed the
President that PNCC had potential escalation claims against MIAA in the amount of P99 million,
potential because they have yet to be approved by the Price Escalation Committee (PEC).
The only remaining piece of evidence which would show that MIAA owed PNCC anything as of the date of
the Marcos Memorandum is MIAAs balance sheet,20 which indicates its liability to PNCC as of December
31, 1985 to be P27,931,000.00.21 How can petitioners claim to have acted in good faith when they
withdrew the P55 million from MIAAs funds knowing fully well that the amount due PNCC was only a
little over half that amount, as shown by their own evidence?
The ponencia states that . . . . the good faith of Tabuena . . . . was not at all affected even if it later turned
out that PNCC never received the money.
It is precisely our thesis that Tabuena did not act in good faith in complying with the Presidents orders
because of the reasons aforestated, summarized as follows:
(a) The Presidents order was out of the ordinary and not based on normal procedure, which would
have entailed making an extraordinary transaction, as admitted by petitioners themselves. This proves
that they were, at the time they received the order, aware that paying MIAAs supposed P55 million
obligation to PNCC through the Office of the President in cash was questionable.
(b) As the head of MIAA, Tabuena should have been more cautious in disbursing the funds. He did not
even stop to think about the legality of the entire process even when he did not receive any kind of receipt
for the first two deliveries of money worth P50 million. When he did get a receipt, it was not an official
receipt from PNCC, the legal creditor, but from the Presidents private secretary. It must also be noted
that the cash was all delivered to Gimenez office at Aguado St., not to her office at Malacaang.
____________________________
20 Exhibit 4, ibid., p. 235.
21 Exhibit 4-a, id.
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(c) Tabuena breached official channels to procure the money. There were no vouchers nor bills to
authorize or support the disbursements. There was also no certificate of availability of funds. The payment
was made in cash without COAs approval, at a time when the ceiling for cash payments was merely
P5,000.00. As stated earlier, no official receipt from PNCC supported the payment. The entire process was
done with haste and with a total disregard of appropriate auditing requirements.
As regards the payments to Roa-Gimenez, these were absolutely unwarranted because whatever
authority she claimed to have emanated, not from the creditor PNCC but from the President. Petitioners
were required by law to settle their indebtedness with PNCC directly, the party in whose favor the
obligation was constituted.22 The only instance when such questionable payment could have been valid
was if it had redounded to PNCCs benefit, which was not proved at all in this case.23 As creditor, the
PNCC was not even bound to accept payment, if any, from the Presidents private secretary, the latter
being a third person who had no interest whatsoever in the discharge of MIAAs obligation.24
The ponencia states that the Marcos Memorandum was patently lawful for no law makes the payment
of an obligation illegal.
This statement is premised on the existence of an established creditor-debtor relationship between the
payor and the payee. In this case, however, the obligor was being made to pay to a party other than the
legal obligee when no novation of the obligation has taken place. How can such an arrangement be
possibly in accord with law?
The preceding established facts clearly show that petitioners were remiss in discharging their duties as
accountable officers. As correctly observed by the court a quo:
____________________________
22 Art. 1240, Civil Code of the Philippines.
23 Art. 1241, par. 2, ibid.
24 Art. 1246, par. 1, id.
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. . . . (T)he Ongpin Memorandum could not justify Pres. Marcos memorandum of January 8, 1986; this in
turn could not justify Luis Tabuenas payment of P55 million to Fe Roa Gimenez.
. . . (T)he amount which could be payable by Tabuena in his capacity as head of the MIAA in January of
1986 could not be in excess of P27.931 millionuntil other claims had been duly approved. This approval,
on the other hand, could not come from the President but from the Price Escalation Committee (PEC)
before which, according to the Ongpin Memorandum itself, these claims for escalation had been
submitted for approval.
The PEC was not shown to have approved these amounts as of the time Tabuena made any of the
withdrawals for P55 million.
xxx xxx xxx
Tabuena says he had properly accounted for the P55 million he had withdrawn from the MIAAs funds. By
this Tabuena means he gave the money to Fe Roa Gimenez, presumably in representation of Pres.
Ferdinand Marcos.
Neither Pres. Marcos, however, nor Fe Roa Gimenez was entitled to receive or issue acquittance for a
debt in favor of the PNCC. Tabuenas claim, therefore, that he delivered the P55 million to her is not
properly accounting for P55 million.
In fact, when we come right down to it, nobody has issued an acquittance in behalf of the PNCC for the
P55 million paid by Luis Tabuena. Since Tabuena says he was paying P55 million to the PNCC, it was
incumbent upon him to show a receipt from or in behalf of the PNCC. Tabuena has shown no receipt.
Tabuena was not authorized to part with government money without receipt.
When Tabuena gave P55 million intended for the PNCC to Fe Roa Gimenez or to Pres. Marcos, Tabuena
was paying government funds to persons not entitled to receive those funds. He was, therefore, guilty of
malversation of those funds.
xxx xxx xxx
Tabuena says he has accounted for the money because he has told us where the money went. But to
account, in the more proper use of the term, injects a sense of responsibility for the disposition of funds
for which one is answerable.
So when one asks if Tabuena has accounted for the P55 million belonging to the MIAA, the question really
is whether accused
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Tabuena disposed of the sum in a responsible manner consistent with his duty. The answer must be in the
negative.
Payments must be delivered to payees. Payments intended for the PNCC must be delivered to the PNCC
or to someone authorized by the PNCC to accept payments for it. Neither Pres. Marcos nor Fe Roa
Gimenez are shown to have been authorized to accept money for the PNCC nor to deliver money to the
PNCC (or to any creditor of the MIAA for that matter). In fact, though Pres. Marcos may have been the
Supreme Magistrate of the land and the chief enforcer of the law, the law neither authorized him to pay
for the MIAA nor to accept money for the PNCC.
Accused Tabuenas statement, therefore, that he had presented overwhelming evidence of the delivery
of the P55 million to Pres. Marcos private secretary does not prove that he has accounted for that money,
that is, that he has properly disposed of that sum according to law.
On the contrary, what the evidence shows is that accused Tabuena delivered the P55 million to people
who were not entitled thereto, either as representatives of MIAA or of the PNCC.
It proves that Tabuena had deliberately consented or permitted through negligence or abandonment,
some other person to take such public funds. Having done so, Tabuena, by his own narration, has
categorically demonstrated that he is guilty of the misappropriation or malversation of P55 million of
public funds.25
Time and again, this Court has deferred to the findings of fact of the trial court, owing to its enviable
position of having seen the physical evidence and observed the witnesses as they testified. We see no
reason to depart now from this policy.
Tabuena was also personally accountable for the funds in his custody, being the head of a government
agency such as MIAA and discharging fiscal functions as such. In this regard, the Manual on Certificate of
Settlement and Balances (Rev. 1993) (The Manual) states, inter alia:
TITLE IV. ACCOUNTABILITY, RESPONSIBILITY AND LIABILITY FOR GOVERNMENT FUNDS AND PROPERTY
____________________________
25 Rollo, pp. 385-387.
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Government officials and employees, in the discharge of fiscal functions, shall ensure that all government
resources are managed, expended and utilized in accordance with law, rules and regulations and
safeguarded against loss or wastage thru illegal or improper disposition.
In the implementation of the above functions, they shall be guided by the following provisions:
SECTION 26. ACCOUNTABILITY FOR GOVERNMENT FUNDS AND PROPERTY
26.1.Every officer of any government agency whose duties permit or require the possession or custody of
government funds or property shall be accountable therefor and for the safekeeping thereof in conformity
with law.
26.2. Every accountable officer shall be properly bonded in accordance with law.
SECTION 27. RESPONSIBILITY FOR GOVERNMENT FUNDS AND PROPERTY
The head of any agency of the government is immediately and primarily responsible for all government
funds and property pertaining to his agency.
Persons entrusted with the possession or custody of the funds or property under the agency head shall
be immediately responsible to him without prejudice to the liability of either party to the government.
SECTION 28. SUPERVISION OVER ACCOUNTABLE OFFICERS
The head of any agency or instrumentality of the national government or any government-owned or
controlled corporation and any other self-governing board or commission of the government shall
exercise the diligence of a good father of a family in supervising the accountable officers under his control
to prevent the incurrence of loss of government funds or property, otherwise he shall be jointly and
severally liable with the person primarily accountable therefor. x x x.
SECTION 29. LIABILITY OF ACCOUNTABLE, SUPERIOR AND SUBORDINATE OFFICERS FOR GOVERNMENT
FUNDS
29.1Every officer accountable for government funds shall be liable for all losses resulting from the
unlawful deposit, use, or ap
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plication thereof and for all losses attributable to negligence in the keeping of the funds.
29.2Liability of Superior Officers.A public officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear showing of bad faith, malice or gross negligence.
xxx xxx xxx
29.5Liability of Subordinate Officers.No subordinate officer or employee shall be civilly liable for acts
done by him in good faith in the performance of his duties. However, he shall be liable for willful or
negligent acts done by him which are contrary to law, morals, public policy and good customs even if he
acted under order or instructions of his superiors.
SECTION 30. LIABILITY FOR UNLAWFUL/ILLEGAL EXPENDITURES OR USES OF GOVERNMENT FUNDS
30.1.1 Expenditures of government funds or uses of government property in violation of law or regulations
shall be a personal liability of the official or employee found to be directly responsible therefor.
30.1.2 Every expenditure or obligation authorized or incurred in violation of law or of the annual
budgetary measure shall be void. Every payment made in violation thereof shall be illegal and every official
or employee authorizing or making such payment, or taking part therein, and every person receiving such
payment shall be jointly and severally liable for the full amount so paid or received. (Italics supplied)
The ponente points out that our reference to the Manual supports the view that Tabuena was only civilly
liable. This is a misappreciation of the entire sense of the dissent. It must be borne in mind that said
reference was made after the conclusion was reached that Tabuena was indeed criminally liable for his
acts. It is hornbook knowledge that criminal liability carries with it the civil, specially when, as in this case,
the latter arose from the former. Hence, the statement Tabuena was also personally accountable for the
funds in his custody, . . . .
Sections 29.2 and 29.5 of the Manual, which the ponente uses to illustrate his point, actually includes
exceptions to the
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grant of immunity from civil liability of a public officer for acts done in the performance of his official
duties: (a) The preceding statement itself says that the acts must be done in the performance of his
official duties; (b) Sec. 29.2 exempts him from civil liability, unless there is a clear showing of bad faith,
malice or gross negligence; and (c) Sec. 29.5 states that he shall be liable for willful or negligent acts
done by him which are contrary to law, morals, public policy and good customs even if he acted under
order or instructions of his superiors. The quoted provisions have been once more underscored herein.
The ponencia further states that (t)here is no showing that Tabuena has anything to do whatsoever with
the execution of the MARCOS Memorandum. But very clearly, the admitted facts show that it was
precisely Tabuena who implemented or executed the said Memorandum.
The ponencia cites Acebedo where the accused was acquitted after it was shown that it was actually the
latters secretary who collected and converted the money. Tabuenas case is starkly different, for here it
was Tabuena himself who personally turned over the money to the Presidents secretary. It was done with
his full knowledge and consent, the obvious irregularity thereof notwithstanding.
In petitioner Peraltas case, we again yield to the factual findings of the trial court. It said:
. . . . The question is whether or not Peralta properly signed the third application for the issuance of a
Managers check drawn against the MIAAs savings account with the Villamor Office of the Philippine
National Bank.
At the time that accused Peralta signed the request for the issuance of a Managers Check, he was the
Acting Financial Services Manager of the MIAA and all withdrawals of funds required is (sic) co-signature.
The reason for the designation of more than one co-signatory is not merely useless ceremony; it is to
serve as a counter check for the propriety of the disbursement.
While, indeed, accused Luis Tabuena was the highest official in the MIAA and had authority to disburse
its funds, this authority
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was not absolute. It had to be for properly subsisting obligations and the disbursement had to be against
funds existing for that purpose. This is one reason for the need for supporting documentation before
disbursements of funds are authorized. And this is the special need for finance officers such as Adolfo
Peralta, as Financial Services Manager, to be co-signatories (sic): to ascertain the validity of the obligation
and, in this particular instance, the existence of the balance to be covered by the managers check the
application for which had been presented for his co-signature.
In this case, Adolfo Peralta speaks of the existence of (the) P27.9 million liability in favor of the PNCC as
justification for his acts herein. True enough, for that amount was the liability as of December 31, 1985.
As finance officer, however, he could not claim ignorance of the fact that as of January 29, 1986, the date
of the application for a managers check which he signed, two previous managers checks worth P25
million each had already been applied for and the total amount of P50 million had already been withdrawn
....
It was only two weeks after these two withdrawals when Peralta, as Finance Services Manager,
participated in the authorization for the disbursement of another P5 million. This last withdrawal brought
up the total of withdrawals to P55 million for the payment of a P27.9 million obligation.
Thus while it is true, as Adolfo Peralta claims, that there was a liability in favor of the PNCC, there was no
way Peralta could disclaim responsibility for the excessive withdrawals to the extent of P5 million thereof
allegedly to pay that liability. There was no way Peralta could justify his co-signing the application for a
managers check for P5 million on January 29, 1986.
The ponente cites a dissenting opinion of Justice Isagani A. Cruz in Development Bank of the Philippines
v. Pandogar to uphold his ponencia. Need we remind our respected colleague that the corroborative value
of a dissenting opinion is minimal? Precisely, it supports a position contrary to, and obviously
unacceptable to the majority.
Petitioners were found guilty of malversation by negligence, which is possible even if the charge was for
intentional malversation. This does not negate, however, their criminal liability; it merely declares that
negligence takes the place of malice. Article 3 of the Code provides the rationale when it
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429
explicitly states that felonies are committed not only by means of deceit but also by means of fault.
The Sandiganbayans finding that petitioners converted and misappropriated the P55 million cannot
simply be brushed aside upon petitioners claim that the money was delivered in good faith to the Office
of the President under the mistaken assumption that the President was entitled to receive the same. They
rely on the case of People v. Fabian,26 which declared that (g)ood faith in the payment of public funds
relieves a public officer from the crime of malversation. But the very same decision also cites Article 217
to the effect that malversation may be committed by an accountable public officer by negligence if he
permits any other person to take the public funds or property in his custody. It is immaterial if petitioners
actually converted or misappropriated MIAAs funds for their own benefit, for by their very negligence,
they allowed another person to appropriate the same.
The fact that no conspiracy was established between petitioners and the true embezzlers of the P55
million is likewise of no moment. The crime of malversation, as defined under Article 217 of the Code,27
was consummated the moment petitioners deliberately turned over and allowed the Presidents private
secretary to take custody of public funds intended as payment of MIAAs obligations to the PNCC, if
obligation there was at all. That petitioner Tabuena who was then General Manager of MIAA personally
and knowingly participated in the misfeasance compounds the maleficence of it all. Rank may have its
privileges but certainly a blatant disregard of law and administrative rules is not one of them. It must be
____________________________
26 Supra.
27 ART. 217. Malversation of public funds or property.Presumption of malversation.Any public officer

who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or property, . . . . (Emphasis supplied)
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430
etched in the minds of public officials that the underside of privileges is responsibilities.
As accountable officers, petitioners clearly transgressed administrative and legal bounds. Even on the
pretext of obeying a superiors seemingly legitimate orders, their actuations can hardly be justified. To
rule otherwise would set an alarming precedent where all that public officials who have unlawfully
enriched themselves at the peoples expense and those accused of graft and corruption would have to do
to exculpate themselves from any wrongdoing would be to invoke Article 11, paragraph 6 of the Code,
thus gaining instant immunity from criminal prosecution.
Government officials, particularly heads of their agencies who, by virtue of their exalted positions exude
power and authority but pay blind obeisance to orders of those higher up in the bureaucratic hierarchy
regardless of the illegality, impropriety or immorality of such orders, would do well to internalize this
prayer for national leaders delivered by former Senate President Jovito R. Salonga in Malacaang on
November 24, 1996:
x x x xxx xxx
When they begin to think of how much power they possess, help them to know the many things that are
beyond their powerthe change of seasons, sun and rain, moonlight and starlight and all the wonders of
Your creation;
When they are led to believe that they are exempt from public accountability, help them to know that
they are ultimately accountable to You, the God of truth and justice and mercy;
xxx xxx x x x.
The ponencia makes the final observation that the limitations on the right of judges to ask questions
during the trial were not observed by respondent court; that the three Justices who heard the testimonies
asked 37 questions of witness Francis Monera, 67 of Tabuena, and 41 of Peraltamore than what the
prosecutors and defense counsels propounded.
While such numbers unduly disturbed the ponente, it cannot be gainsaid that such action by the members
of the First
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431
Division of respondent Sandiganbayan was, under the circumstances, not only necessary and called for,
but likewise legally acceptable.
In the first place, even the ponente makes the observation that petitioners did not raise this matter as
error. In other words, they did not feel prejudiced by the respondent courts actuations; nor did they
construe the series of questions asked of them by the Justices as indicative of any unfairness or partiality
violative of their right to due process.
Then, too, it must be noted that there is a difference in the right of a judge in a non-jury system like that
obtaining in the Philippines, to question witnesses or parties themselves, and that of a judge in a jury trial.
The bulk of jurisprudence used in the ponencia was decided in the United States, where the jury system
is extensively utilized in civil as well as in criminal trials. In this regard, (i)t has been noted that the opinion
of the judge, on account of his position and the respect and confidence reposed in him and in his learning
and assumed impartiality, is likely to have great weight with the jury, and such fact of necessity requires
impartial conduct on his part. The judge is a figure of overpowering influence, whose every change in
facial expression is noted, and whose every word is received attentively and acted upon with alacrity and
without question.28
Thus, while a trial judge is expected to be circumspect in his choice of words lest they be construed as
signs of partiality, he is not, however, required to remain silent and passive throughout a jury trial;29
he should, instead, conduct a trial in an orderly way with a view to eliciting the truth and to attaining
justice between the parties.30
Inasmuch as it is the jury which has the burden of meting out justice, it is acceptable for a judge in a jury
trial to ask
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28 75 Am Jur 2d, Trial, Sec. 272, citing U.S. v. Candelaria-Gonzalez (CA5 Tex) 547 F2d 291.
29 Ibid.
30 Id., citing U.S. v. Slone (CA6 Ky) 833 F2d 595, 24 Fed Rules Evid Serv 339.
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any question which would be proper for the prosecutor or defense counsel to ask so long as he does not
depart from a standard of fairness and impartiality.31 Questions designed to clarify points and to elicit
additional relevant evidence, particularly in a non-jury trial, are not improper.32
The numerous questions asked by the court a quo should have been scrutinized for any possible influence
it may have had in arriving at the assailed decision. The true test for the appropriateness or
inappropriateness of court queries is not their quantity but their quality, that is, whether the defendant
was prejudiced by such questioning.33 To repeat, petitioners did not feel prejudiced by the trial courts
actions; otherwise, they would have raised this issue in the instant petition.
The ponencia states that he is well aware of the fear entertained by some that this decision may set a
dangerous precedent in that those guilty of enriching themselves at the expense of the public would be
able to escape criminal liability by the mere expedient of invoking good faith. Our position has been
either misinterpreted or misread for we do not merely speak of good faith. In fact, our main thrust is
that such a breed of people who enriched themselves at the expense of the public might handily use as
an excuse or a justifying circumstance to escape liability their having obeyed the lawful orders of their
superior under Article 11, paragraph 6 of the Revised Penal Code.
The ponente makes a plea towards the close of his decision, that we should not act impulsively in the
instant case. In our
____________________________
31 Id., citing Johnston v. Birmingham (Ala App) 338 So 2d 7.
32 Id., citing Eggert v. Mosler Safe Co. (Colo App) 730 P2d 895; Law Offices of Lawrence J Stockler, PC v.
Rose, 174 Mich App 14, 436 NW2d 70, app den 434 Mich 862, reconsideration den (Mich) 1990 Mich LEXIS
962, and reconsideration den (Mich) 1990 Mich LEXIS 963.
33 Id., citing U.S. v. Kelly (CA3 NJ) 329 F2d 314; Woodring v. U.S. (CA8 Mo) 311 F2d 417, cert den 373 US
913, 10 L Ed 2d 414, 83 S Ct 1304.
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eagerness to bring to justice the malefactors of the Marcos regime, we must not succumb to the
temptation to commit the greatest injustice of visiting the sins of the wrongdoers upon an innocent.
In our opinion, precisely, Tabuena and Peralta are wrongdoers, guilty of acts punishable by law. Needless
to say, under our system of laws, they must be meted out the corresponding penalty. We draw attention
to the fact that nowhere in this dissent do we single out the so-called malefactors of the Marcos regime
alone. We addressed ourselves to all who commit venalities at the expense of the people, as defined and
punished by law but who try to justify their actions by invoking the very law which they violated.
For the reasons stated above, I vote to affirm petitioners conviction by respondent court.
DISSENTING OPINION
PUNO, J.:
I join the Dissenting Opinion of Madam Justice Flerida Ruth Romero where I find both right and
righteousness happily intersecting each other. I am, however, constrained to write this brief dissent in
view of the impact of the majority decision to our criminal justice system which many perceive leaves
much to be desired.
It should be immediately stressed that petitioners were convicted of the crime of malversation by
negligence. The felony was committed by petitioners not by means of deceit (dolo) but by fault (culpa).
According to Article 3 of the Revised Penal Code, there is fault when the wrongful act results from
imprudence, negligence, lack of foresight, or lack of skill. Justice J.B.L. Reyes explains the difference
between a felony committed by deceit and that committed by fault in this wise: x x x In intentional crimes,
the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude
or condition behind the act, the dangerous
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recklessness, lack of care or foresight, the imprudencia punible.1

In light of this well-carved distinction, the long discourse of the majority decision hailing petitioners good
faith or lack of intent to commit malversation is off-line. To justify the acquittal of petitioners, the majority
should strive to show that petitioners did not commit any imprudence, negligence, lack of foresight or
lack of skill in obeying the order of former President Marcos. This is nothing less than a mission impossible
for the totality of the evidence proves the utter carelessness of petitioners in the discharge of their duty
as public officials. The evidence and their interstices are adequately examined in the dissent of Madame
Justice Romero and they need not be belabored.
For the same reason, the majority cannot rely on the doctrine of mistake of fact as ground to acquit
petitioners. It found as a fact that x x x Tabuena acted under the honest belief that the P55 million was a
due and demandable debt x x x. This Court has never applied the doctrine of mistake of fact when
negligence can be imputed to the accused. In the old, familiar case of People vs. Ah Chong,2 Mr. Justice
Carson explained that ignorance or mistake of fact, if such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is a necessary ingredient of the offense charged (e.g., in
larceny animus furandi, in murder, malice, etc.), cancels the presumption of intent and works an acquittal,
except in those cases where the circumstances demand a conviction under the penal provisions touching
criminal negligence. Hence, Ah Chong was acquitted when he mistook his houseboy as a robber and the
evidence showed that his mistake of fact was not due to negligence. In the case at bar, the negligence of
the petitioners screams from page to page of the records of the case. Petitioners themselves admitted
that the payments they made were out of the ordinary and not based on normal procedure.
____________________________
1 Aquino, The Revised Penal Code, Vol. I, 1976 ed., p. 60.
2 15 Phil. 488, 493.
435
435
As aforestated, the cornerstone of the majority decision is its finding of good faith on the part of the
petitioners. Viewed from a more critical lens, however, the evidence cannot justify a finding of good faith.
The violations of auditing rules are too many yet the majority merely winks at them by ruling that
petitioner Tabuena x x x did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the Marcos Memorandum enjoined immediate compliance with
the directive that he forward to the Presidents Office the P55 million in cash. With due respect, I am
disquieted by the mischiefs that will be mothered by this ruling. To begin with, the country was no longer
under martial rule in 1986 and petitioners were under no compulsion to violate our laws. It also ought to
be obvious that the order for immediate compliance even if made by the former President cannot be
interpreted as a green signal by a subordinate official to disregard our laws. Indeed, no person, not even
the President can order the violation of our laws under any excuse whatsoever. The first and foremost
duty of the President is to uphold the sanctity of our laws. Thus, the Constitution requires the President
to take an oath or affirmation where he makes the solemn pledge to the people: I do solemnly swear (or
affirm) that I will faithfully and conscientiously fulfill my duties as President of the Philippines, preserve
and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service
of the Nation. x x x.3 To be sure, the need for petitioners to make an immediate payment is really not that
immediate. The facts show that former President Marcos first called petitioner Tabuena by telephone and
asked him to make the payment. One week after or on January 8, 1986, the former President issued a
written memorandum reiterating the order to pay. Payments were made in three tranchesthe first on
January 10, 1986, the second on January 16, 1986 and the third on January 31, 1986. Clearly then, it took
petitioner one month to comply with the Order. Given the personnel of petitioner Tabuena in
____________________________
3 Section 5, Article VII of the Constitution.
436
436
his office, one month provides enough time to comply with the rules. In any event, petitioners did not
request former President Marcos for additional time to comply with the rules if they felt in good faith that
they needed more time. Petitioners short-circuited the rules by themselves. Nothing in the Marcos
Memorandum compelled them to disregard the rules. The Memorandum merely stated Your immediate
compliance is appreciated. The language of the Memorandum was as polite as it could be. I fail to discern
any duress in the request as the majority did.
II
The determination of the degree of participation that should be allowed to a judge in the questioning of
a witness is a slippery slope in constitutional law. To a certain extent, I agree with the majority that some
of the questions propounded by the justices of the respondent Court crossed the limits of propriety. Be
that as it may, I am not prepared to conclude with certainty that the text and tone of the questions denied
petitioners the right to an impartial trial. Bias is a state of mind which easily eludes evidence. On the basis
of the evidence before us, we cannot hold that we have plumbed the depth of prejudice of the justices
and have unearthed their partiality. The more telling evidence against the petitioners are documentary in
nature. They are not derived from the answers elicited by questions from the justices which the majority,
sua sponte, examined and condemned as improper.
III
Finally, I can not but view with concern the probability that the majority decision will chill complaints
against graft pending before the respondent Court. From the majority decision, it is crystalline that
petitioners blindly obeyed the Marcos Memorandum despite its fatal and facial flaws. The majority even
quotes these inculpatory admissions of petitioner Tabuena, viz:4
____________________________
4 See pp. 41-45 of majority decision.
437
437
x x x
AJ del Rosario
x x x
If it was for the payment of such obligation why was there no voucher to cover such payment? In other
words, why was the delivery of the money not covered by any voucher?
The instruction to me was to give it to the Office of the President, your Honor.
PJ Garchitorena
Be that as it may, why was there no voucher to cover this particular disbursement?
I was just told to bring it to the Office of the President, your Honor.
AJ del Rosario
Was that normal procedure for you to pay in cash to the Office of the President for obligations of the
MIAA in payment of its obligation to another entity?
A
No, you Honor, I was just following the Order to me of the President.
PJ Garchitorena
So the Order was out of the ordinary?
Yes, your Honor.
AJ del Rosario
Did you file any written protest with the manner with which such payment was being ordered?
No, your Honor.
Why not?
Because with that instruction of the President to me, I followed your Honor.
x x x
AJ Hermosisima
Why were you not made to pay directly to the PNCC considering that you are the manager of MIA at that
time and the PNCC is a separate corporation, not an adjunct of Malacaang?
I was just basing it from the Order of the Malacaang to pay PNCC through the Office of the President,
your Honor.
x x x
438
438

Q
You agreed to the order of the President notwithstanding the fact that this was not the regular course or
Malacaang was not the creditor?
I saw nothing wrong with that because that is coming from the President, your Honor.
In effect, petitioners shocking submission is that the President is always right, a frightening echo of the
antedeluvian idea that the King can do no wrong. By allowing the petitioners to walk, the majority has
validated petitioners belief that the President should always be obeyed as if the President is above and
beyond the law. I cannot accept this dangerous ruling even if I look at it through the eyes of faith. One of
the gospels in constitutional law is that the President is powerful but is not more paramount than the law.
And in criminal law, our catechism teaches us that it is loyalty to the law that saves, not loyalty to any
man. Let us not bid goodbye to these sacrosanct principles.
DISSENTING OPINION
PANGANIBAN, J.:
In the main, the majority ruled that Petitioners Luis Tabuena and Adolfo Peralta should be acquitted
because they were merely obeying the order of then President Ferdinand E. Marcos to deliver thru this
Office, the sum of FIFTY FIVE MILLION (P55,000,000.00) PESOS in cash as partial payment of MIAAs
account with the Philippine National Construction Company. In their Dissenting Opinions, Justices
Romero, Davide and Puno have shown how weak and unpersuasive this ruling is under applicable
Philippine laws and jurisprudence. I will not repeat their illuminative discussions. Let me just stress three
more points:
(1) The defense of obedience to a superiors order is already obsolete. Fifty years ago, the Nazi war
criminals tried to justify genocide against the Jews and their other crimes against humanity by alleging
they were merely following the orders of Adolf Hitler, their adored fuehrer. However, the International
Military Tribunal at Nuremberg in its Judgment
439
439
dated October 1, 1946,1 forcefully debunked this Nazi argument and clearly ruled that (t)he true test x x
x is not the existence of the order but whether moral choice was in fact possible.
In 1947, the United Nations General Assembly adopted a Resolution firmly entrenching the principle of
moral choice, inter alia, as follows:2
The fact that a person acted pursuant to an order of his government or of a superior does not relieve
him from responsibility under international law, provided a moral choice was in fact possible to him.
In the Nuremberg trials, the defendants were military officers of the Third Reich who were duty-bound to
obey direct orders on pain of court martial and death at a time when their country was at war.
Nonetheless, they were meted out death sentences by hanging or long-term imprisonments. In the
present case, the accused are civilian officials purportedly complying with a memorandum of the Chief
Executive when martial law had already been lifted and the nation was in fact just about to vote in the
snap presidential election in 1986. The Sandiganbayan did not impose death but only imprisonment
ranging from seventeen years and one day to twenty years. Certainly a moral choice was not only possible.
It was in fact available to the accused. They could have opted to defy the illegal order, with no risk of court
martial or death. Or they could have resigned. They knew or should have known that the P55 million was
to be paid for a debt that was dubious3 and in a manner that was irregular. That the money was
____________________________
1 41 AJIL 172, 221 (1947).
2 For the full text of the Resolution, please see Salonga and Yap, Public International Law, Third Edition,
p. 235-236.
3 Submitted before the Sandiganbayan was a Memorandum of then Minister of Trade Roberto Ongpin
dated January 7, 1985, stating that the MIAA had a total account of P98.4 million due the PNCC.
Subtracting however the outstanding advances totalling P93.9 x x x will leave a net amount due to PNCC
of only P4.5 mil
440
440
to be remitted in cold cash and delivered to the private secretary of the President, and not by the normal
crossed check to the alleged creditor, gave them a moral choice to refuse. That they opted to cooperate
compounded their guilt to a blatant conspiracy to defraud the public treasury.
(2)Resurrecting this internationally discredit Nazi defense will, I respectfully submit, set a dangerous
precedent in this country. Allowing the petitioners to walk deprives this Court of the moral authority to
convict any subaltern of the martial law dictator who was merely following orders. This ludicrous
defense can be invoked in all criminal cases pending not only before this Court but more so before inferior
courts, which will have no legal option but to follow this Courts doctrine.4
(3)Mercy and compassion are virtues which are cherished in every civilized society. But before they can
be invoked, there must first be justice. The Supreme Courts duty is to render justice. The power to
dispense pardon lies elsewhere. Verily, the Constitution ordains a final conviction by the courts before the
President can exercise his power to wipe away penalty.5 Such is the legal and natural precedence and
order of things: justice first before mercy. And only he who sincerely repents his sin, restitutes for it, and
reforms his life deserves forgiveness and mercy.
____________________________
lion, explained Mr. Ongpin. Even if the P30 million advances which Pres. Marcos is claimed to have
authorized PNCC to retain, is added to this net amount due of P4.5 million, the total would run up to
only P34.5 millionstill P20.5 million shy of the P55 million actually disbursed.
4 In Ty vs. Trampe, 250 SCRA 500, 521, December 1, 1995, judges were admonished to follow established
laws, doctrines and precedents. Hence, once a case has been decided one way, then another case
involving exactly the same point at issue should be decided in the same manner. Tay Chun Suy vs. Court
of Appeals, 229 SCRA 151, 163, January 7, 1994.
5 In People vs. Salle, Jr., 250 SCRA 581, December 4, 1995 this Court expressly held that Section 19, Article
VII of the present Constitution prohibits the presidential grant of pardon unless there is conviction by
final judgment of the accused.
441
441
Sulit vs. Court of Appeals
I therefore vote to AFFIRM the assailed Sandiganbayan Decision convicting the petitioners of
malversation.
Petitioners acquitted.
Notes.Where the information identifies the questioned funds to be public funds and charges that these
funds have been received and misapplied or misappropriated, it adequately expresses in essence the
elements of the crime of malversation. (Ocampo III vs. Sandiganbayan, 236 SCRA 1 [1994])
The act of encashing a check intended for a particular project and subsequently using the money for some
other purpose constitutes misappropriation. (Nizurtado vs. Sandiganbayan, 239 SCRA 33 [1994])
o0o Tabuena vs. Sandiganbayan, 268 SCRA 332, G.R. Nos. 103501-03, G.R. No. 103507 February
17, 1997

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[No. 14639. March 25, 1919.]

ZACARIAS VILLAVICENCIO ET AL., petitioners, vs. JUSTO LUKBAN ET AL., respondents.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

19.GOVERNMENT OF THE PHILIPPINE ISLANDS; A GOVERNMENT OF LAWS.The Government of the

20.ID, ; ID.No official, however high, is above the law.

ORIGINAL ACTION in the Supreme Court. Habeas Corpus.

The facts are stated in the opinion of the court.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

hacendero of Davao, and Anacleto Diaz, Fiscal of the city of Manila.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

In concluding this tedious and disagreeable task, may

PHILIPPINE REPORTS ANNOTATED

Villavicencio vs. Lukban.

Arellano, C. J., Avancea, and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.

TORRES, J., dissenting:

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

Villavicencio vs. Lukban.

VOL. 39, MARCH 25, 1919.

Villavicencio vs. Lukban.

PHILIPPINE REPORTS ANNOTATED