1

G.R. Nos. 159418-19 December 10, 2003

NORMA DE JOYA, PETITIONER,

vs.
THE JAIL WARDEN OF BATANGAS CITY AND HON. RUBEN A. GALVEZ AS PRESIDING
JUDGE OF BATANGAS CITY MUNICIPAL TRIAL COURT IN CITIES, BRANCH
I, RESPONDENTS.

DECISION

CALLEJO, SR., J.:

This is a petition for a writ of habeas corpus filed by Norma de Joya praying for her release from the
Batangas City Jail on the claim that her detention was illegal.

The Antecedents

The petitioner was charged separately with violations of Batas Pambansa Blg. 22 before the
Municipal Trial Court In Cities in Batangas City. The docket numbers and accusatory portion of each
of the Informations reads:

Criminal Case No. 25484

That on or about September 28, 1994 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, well-knowing that she does not have funds in or credit
with the Solid Bank, Batangas Branch, Batangas City, did then and there, wilfully, unlawfully and
feloniously draw, make and issue to Flor Catapang de Tenorio, Solid Bank Check No. 040297
postdated to October 28, 1994 in the amount of ONE HUNDRED FIFTY THOUSAND (₱150,000.00)
PESOS, Philippine Currency, to apply on account or for value, but when said check was presented
for full payment with the drawee bank within a period of ninety (90) days from the date of the check,
the same was dishonored by the drawee bank on the ground `account closed,' which in effect is
even more than a dishonor for insufficiency of funds, and despite notice of dishonor and demands
made upon her to make good her check by making proper arrangement with the drawee bank or pay
her obligation in full directly to Flor Catapang de Tenorio, accused failed and refused to do so, which
acts constitute a clear violation of the aforecited law, to the damage and prejudice of transaction in
commercial documents in general and of Flor Catapang de Tenorio in particular in the
aforementioned amount.

CONTRARY TO LAW.1

...

Criminal Case No. 25773

That on or about October 17, 1994 at Batangas City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, well-knowing that she does not have fund in or credit
with the Security Bank and Trust Company, Batangas Branch, Batangas City, did then and there,
wilfully, unlawfully and feloniously draw, make and issue to Resurreccion T. Castillo, Security Bank
and Trust Company Check No. 038111 postdated to October 24, 1994 in the amount of TWO
HUNDRED TWENTY-FIVE THOUSAND PESOS (₱225,000.00), Philippine Currency, to apply on
account or for value, but when said check was presented for full payment with the drawee bank
within a period of ninety (90) days from the date of the check, the same was dishonored by the
drawee bank on the ground of `account closed,' which in effect is even more than a dishonor for
insufficiency of funds, and despite notice of dishonor and demands made upon her to make good
her check by making proper arrangement with the drawee bank or pay her obligation in full directly to
Resurreccion T. Castillo, accused failed and refused to do so, which acts constitute a clear violation
of the aforecited law, to the damage and prejudice of transaction in commercial documents in
general and of Resurreccion T. Castillo in particular in the aforementioned amount.

CONTRARY TO LAW.2

When arraigned in both cases, the petitioner, assisted by counsel, pleaded not guilty. While trial was
going on, the petitioner jumped bail. No evidence was thereby adduced in her defense in any of the
two cases.

On December 14, 1995, the trial court promulgated its decision in Criminal Case No. 25484. The
petitioner and her counsel failed to appear despite due notice. The decretal portion of the decision
reads as follows:

WHEREFORE, this Court finds the accused Norma de Joya guilty of the crime of Violation of Batas
Pambansa Blg. 22, and hereby sentences said accused to suffer an imprisonment of one (1) year
and to indemnify the offended party, Flor Catapang Tenorio, in the sum of ONE HUNDRED FIFTY
THOUSAND (₱150,000.00) PESOS, Philippine Currency.

SO ORDERED.3

On March 21, 1997, the decision in Criminal Case No. 25773 was likewise promulgated in absentia.
The decretal portion of the said decision reads:

WHEREFORE, the Prosecution having satisfactorily established the guilt of the accused beyond
reasonable doubt, this Court hereby sentences herein-accused Norma de Joya of imprisonment of
ONE (1) YEAR and to pay complainant Resurreccion Castillo of the amount of TWO HUNDRED
TWENTY-FIVE THOUSAND (₱225,000.00) PESOS by way of damages.

SO ORDERED.4

The petitioner remained at large and no appeal was filed from any of the said decisions. In the
meantime, the Court issued Supreme Court Administrative Circular No. 12-2000 on November 21,
2000 enjoining all courts and judges concerned to take notice of the ruling and policy of the Court
enunciated in Vaca v. Court of Appeals5 and Lim v. People6 with regard to the imposition of the
penalty for violations of B.P. Blg. 22.

After five years, the petitioner was finally arrested while she was applying for an NBI clearance. She
was forthwith detained at the Batangas City Jail on December 3, 2002. On July 28, 2003, the
petitioner filed an urgent motion with the Municipal Trial Court of Batangas City asking the court to
apply SC Admin. Circular No. 12-2000 retroactively pursuant to Article 22 of the Revised Penal Code
and to order her release from detention. The public prosecutor opposed the motion. In an Order
dated August 15, 2003, the trial court denied the motion on three grounds: (a) its decision convicting
the petitioner of violation of B.P. Blg. 22 had long become final and executory; hence, could no
longer be amended to change the penalty imposed therein; (b) the SC Circular should be applied
prospectively; and (c) the SC Circular did not amend B.P. Blg. 22, a substantive law, but merely
encourages trial court judges to have a uniform imposition of fine.

Hence, the petition at bar.

The petitioner posits that SC Admin. Circular No. 12-2000 deleted the penalty of imprisonment for
violation of B.P. Blg. 22 and allows only the imposition of a fine. The trial court was mandated to
apply SC Admin. Circular No. 12-2000 retroactively conformably with Article 22 of the Revised Penal
Code citing the ruling of this Court in United States v. Pacrose.7 The petitioner prays that the Court
declare her detention illegal and order her release from the Batangas City Jail.

The Office of the Solicitor General (OSG) opposed the petition contending that:

1)

THE TWO (2) JUDGMENTS OF CONVICTION AGAINST THE PETITIONER HAD LONG
ATTAINED FINALITY AND COULD NO LONGER BE MODIFIED.

2)

ADMINISTRATIVE CIRCULAR NO. 12-2000 AS MODIFIED BY ADMINISTRATIVE CIRCULAR NO.

13-2001 DID NOT DELETE THE PENALTY OF IMPRISONMENT IN BP 22 CASES.8

The OSG cited the ruling of this Court in Abarquez v. Court of Appeals.9

The petition has no merit.

Section 4, Rule 102 of the Rules of Court, as amended, provides that the writ of habeas corpus is
not allowed if the person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of record:

Sec. 4. When writ not allowed or discharged authorized. – If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment; or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.

In this case, the petitioner was arrested and detained pursuant to the final judgment of the Municipal
Trial Court of Batangas City, convicting her of violation of B.P. Blg. 22. Irrefragably then, the
petitioner is not entitled to a writ of habeas corpus. Petitioner's reliance of our ruling in Ordonez v.
Vinarao10 that a convicted person is entitled to benefit from the reduction of penalty introduced by the
new law, citing People v. Simon,11 is misplaced. Thus, her plea that as provided for in Article 22 of the
Revised Penal Code, SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular No. 13-
2001 should benefit her has no basis.

First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal
Code is not applicable. The circular applies only to those cases pending as of the date of its
effectivity and not to cases already terminated by final judgment.
Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-
2000 merely lays down a rule of preference in the application of the penalties for violation of B.P.
Blg. 22. It does not amend B.P. Blg. 22, nor defeat the legislative intent behind the law. SC Admin.
Circular No. 12-2000 merely urges the courts to take into account not only the purpose of the law but
also the circumstances of the accused – whether he acted in good faith or on a clear mistake of fact
without taint of negligence – and such other circumstance which the trial court or the appellate court
believes relevant to the penalty to be imposed. The Court thus emphasized that:

The clear tenor and intention of Administrative Circular No. 12-2000 is not to remove imprisonment
as an alternative penalty, but to lay down a rule of preference in the application of the penalties
provided for in B.P. Blg. 22.

The pursuit of this purpose clearly does not foreclose the possibility of imprisonment for violators of
B.P. Blg. 22. Neither does it defeat the legislative intent behind the law.

Thus, Administrative Circular No. 12-2000 establishes a rule of preference in the application of the
penal provisions of B.P. Blg. 22 such that where the circumstances of both the offense and the
offender clearly indicate good faith or a clear mistake of fact without taint of negligence, the
imposition of a fine alone should be considered as the more appropriate penalty. Needless to say,
the determination of whether the circumstances warrant the imposition of a fine alone rests solely
upon the Judge. Should the Judge decide that imprisonment is the more appropriate penalty,
Administrative Circular No. 12-2000 ought not be deemed a hindrance.

It is, therefore, understood that:

Administrative Circular No. 12-2000 does not remove imprisonment as an alternative penalty for
violations of B.P. Blg. 22;

The Judges concerned may, in the exercise of sound discretion, and taking into consideration the
peculiar circumstances of each case, determine whether the imposition of a fine alone would best
serve the interests of justice or whether forbearing to impose imprisonment would depreciate the
seriousness of the offense, work violence on the social order, or otherwise be contrary to the
imperatives of justice;

Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle
to the application of the Revised Penal Code provisions on subsidiary imprisonment.12

B.P. Blg. 22 provides for alternative penalties of fine or imprisonment or both fine and imprisonment
as follows:

SECTION 1. Checks without sufficient funds. – Any person who makes or draws and issues any
check to apply on account or for value, knowing at the time of issue that he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment,
which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or
would have been dishonored for the same reason had not the drawer, without any valid reason,
ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but
not more than one (1) year or by a fine of not less than but not more than double the amount of the
check which fine shall in no case exceed two hundred thousand pesos, or both such fine and
imprisonment at the discretion of the court.13
The courts are given the discretion to choose whether to impose a single penalty or conjunctive
penalties; that is, whether to impose a penalty of fine, or a penalty of imprisonment only, or a penalty
of both fine and imprisonment.

In providing for alternative penalties in B.P. Blg. 22, Congress took into account the principal
objectives of the law, namely, the prohibition on the making of worthless checks and putting them in
circulation. The practice is prohibited by law because of its deleterious effects on public interest. The
effects of the increase of worthless checks transcend the private interest of the parties directly
involved in the transaction and touches the interest of the community at large. The mischief it
creates is not only a wrong to the payee or holder, but also an injury to the public. The harmful
practice of putting valueless commercial papers in circulation multiplied a thousand-fold can very
well pollute the channels of trade and commerce, injure the banking system and eventually hurt the
welfare of society and the public interest. The law punishes the act not as an offense against
property but an offense against public order.14

However, in imposing penalties for crimes, the courts must bear in mind that Philippine penal law is
based on the Spanish penal code and has adopted features of the positivist theory of criminal law.
The positivist theory states that the basis for criminal liability is the sum total of the social and
economic phenomena to which the offense is expressed. The adoption of the aspects of the theory
is exemplified by the indeterminate sentence law, Article 4, paragraph 2 of the Revised Penal Code
(impossible crime), Article 68 and Articles 11 to 14, not to mention Article 63 of the Revised Penal
Code (penalties for heinous and quasi-heinous crimes). Philippine penal law looks at the convict as
a member of society. Among the important factors to be considered in determining the penalty to be
imposed on him are (1) his relationship towards his dependents, family and their relationship with
him; and (2) his relationship towards society at large and the State. The State is concerned not only
in the imperative necessity of protecting the social organization against the criminal acts of
destructive individuals but also in redeeming the individual for economic usefulness and other social
ends.15 The purpose of penalties is to secure justice. The penalties imposed must not only be
retributive but must also be reformative, to give the convict an opportunity to live a new life and rejoin
society as a productive and civic-spirited member of the community. The court has to consider not
only the primary elements of punishment, namely, the moral responsibility of the convict, the relation
of the convict to the private complainant, the intention of the convict, the temptation to the act or the
excuse for the crime - was it done by a rich man in the insolence of his wealth or by a poor man in
the extremity of his need? The court must also take into account the secondary elements of
punishment, namely, the reformation of the offender, the prevention of further offenses by the
offender, the repression of offenses in others.16 As Rousseau said, crimes can be thoroughly
repressed only by a system of penalties which, from the benignity they breathe, serve rather than to
soften than to inflame those on whom they are imposed.17 There is also merit in the view that
punishment inflicted beyond the merit of the offense is so much punishment of innocence.18

In this case, even if the Court applies SC Admin. Circular No. 12-2000, as revised, retroactively, the
petition must nevertheless be dismissed. The petitioner did not offer any evidence during trial. The
judgment of the court became final and executory upon her failure to appeal therefrom. Worse, the
petitioner remained at large for five long years. Were it not for her attempt to secure an NBI
clearance, she would have been able to elude the long arm of the law.

IN LIGHT OF ALL THE FOREGOING, the petition is DISMISSED for lack of merit.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

 2

G.R. No. 17584 March 8, 1922

THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee,

vs.
GREGORIO SANTIAGO, defendant-appellant.

L. Porter Hamilton for appellant.

Acting Attorney-General Tuason for appellee.

ROMUALDEZ, J.:

Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with automobile that
he was driving, the herein appellant was prosecuted for the crime of homicide by reckless
negligence and was sentenced to suffer one year and one day of prision correccional, and to pay the
costs of the trial.

Not agreeable with that sentence he now comes to this court alleging that the court below committed
four errors, to wit:

1. The trial court erred in not taking judicial notice of the fact that the appellant was being
prosecuted in conformity with Act No. 2886 of the Philippine Legislature and that the Act is
unconstitutional and gave no jurisdiction in this case.

2. The lower court erred in not dismissing the complaint after the presentation of the
evidence in the case, if not before, for the reason that said Act No. 2886 is unconstitutional
and the proceedings had in the case under the provisions of the Act constitute a prosecution
of appellant without due process of law.

3. The court a quo erred in not finding that it lacked jurisdiction over the person of the
accused and over the subject- matter of the complaint.

4. The trial court erred in finding the appellant guilty of the crime charged and in sentencing
him to one year and one day of prison correccional and to the payment of costs.

With regard to the questions of fact, we have to say that we have examined the record and find that
the conclusions of the trial judge, as contained in his well-written decision, are sufficiently sustained
by the evidence submitted.

The accused was driving an automobile at the rate of 30 miles an hour on a highway 6 meter wide,
notwithstanding the fact that he had to pass a narrow space between a wagon standing on one side
of the road and a heap of stones on the other side where the were two young boys, the appellant did
not take the precaution required by the circumstances by slowing his machine, and did not proceed
with the vigilant care that under the circumstances an ordinary prudent man would take in order to
avoid possible accidents that might occur, as unfortunately did occur, as his automobile ran over the
boy Porfirio Parondo who was instantly killed as the result of the accident.

These facts are so well established in the records that there cannot be a shade of doubt about them.
Coming now to the other assignments of error, it will be seen that they deal with the fundamental
questions as to whether or not Act No. 2886, under which the complaint in the present case was
filed, is valid and constitutional.

This Act is attacked on account of the amendments that it introduces in General Orders No. 58, the
defense arguing that the Philippine Legislature was, and is, not authorized to amend General Orders
No. 58, as it did by amending section 2 thereof because its provisions have the character of
constitutional law. Said section 2 provides as follows:

All prosecutions for public offenses shall be in the name of the United States against the
persons charged with the offenses. (G. O. No. 58, sec. 2 ).

Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is made the
plaintiff in this information, contains the following provisions in section 1:

SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen

hundred, is hereby amended to read as follows:

"SEC. 2. All prosecutions for public offenses shall be in the name of the People of the
Philippine Islands against the persons charged with the offense."

Let us examine the question.

For practical reasons, the procedure in criminal matters is not incorporated in the Constitutions of the
States, but is left in the hand of the legislatures, so that it falls within the realm of public statutory
law.

As has been said by Chief Justice Marshall:

A constitution, to contain an accurate detail of all the Subdivisions of which its great powers
will admit, and of all the means by which they may be carried into execution, would partake
of a prolixity of a legal code, and could scarcely be embraced by the human mind. It would
probably never be understood by the public. (M'Culloch vs. Maryland [1819], 4 Wheat., 316,
407; 4 L. ed., 579.)

That is why, in pursuance of the Constitution of the United States, each States, each State has the
authority, under its police power, to define and punish crimes and to lay down the rules of criminal
procedure.

The states, as a part of their police power, have a large measure of discretion in creating and
defining criminal offenses. . . .

A Statute relating to criminal procedure is void as a denial of the equal protection of the laws
if it prescribes a different procedure in the case of persons in like situation. Subject to this
limitation, however, the legislature has large measure of discretion in prescribing the modes
of criminal procedure. . . . (12 C.J., 1185, 1186. See Collins vs. Johnston, 237 U.S., 502; 35
s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-Carpenter Co. vs. Minnesota, 218 U.S., 57; 30 S.
Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders, 141 Ga., 500; 81 S.E., 205.)

This power of the States of the North American Union was also granted to its territories such as the
Philippines:
 The plenary legislative power which Congress possesses over the territories and
possessions of the United States may be exercised by that body itself, or, as is much more
often the case, it may be delegated to a local agency, such as a legislature, the organization
of which proceeds upon much the same lines as in the several States or in Congress, which
is often taken as a model, and whose powers are limited by the Organic Act; but within the
scope of such act is has complete authority to legislate, . . . and in general, to legislate upon
all subjects within the police power of the territory. (38 Cyc., 205-207.)

The powers of the territorial legislatures are derived from Congress. By act of Congress their
power extends "to all rightful subjects of legislation not inconsistent with the Constitution and
laws of the United States;" and this includes the power to define and punish crimes. (16 C.
J., 62.)

And in the exercise of such powers the military government of the army of occupation, functioning as
a territorial legislature, thought it convenient to establish new rules of procedure in criminal matters,
by the issuance of General Orders No. 58, the preamble of which reads:

In the interests of justice, and to safeguard the civil liberties of the inhabitants of these
Islands, the criminal code of procedure now in force therein is hereby amended in certain of
its important provisions, as indicated in the following enumerated sections. (Emphasis ours.)

Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its
provisions the effect of law in criminal matters. For that reason it provides in section 1 that:

The following provisions shall have the force and effect of law in criminal matters in the
Philippine Islands from and after the 15th day of May, 1900, but existing laws on the same
subjects shall remain valid except in so far as hereinafter modified or repealed expressly or
by necessary implication.

From what has been said it clearly follows that the provisions of this General Order do not the nature
of constitutional law either by reason of its character or by reason of the authority that enacted it into
law.

It cannot be said that it has acquired this character because this order was made its own by the
Congress of the United States for, as a mater of fact, this body never adopted it as a law of its own
creation either before the promulgation of Act No. 2886, herein discussed, or, to our knowledge, to
this date.

Since the provisions of this General Order have the character of statutory law, the power of the
Legislature to amend it is self-evident, even if the question is considered only on principle. Our
present Legislature, which has enacted Act No. 2886, the subject of our inquiry, is the legal
successor to the Military Government as a legislative body.

Since the advent of the American sovereignty in the Philippines the legislative branch of our
government has undergone transformations and has developed itself until it attained its present
form. Firstly, it was the Military Government of the army of occupation which, in accordance with
international law and practice, was vested with legislative functions and in fact did legislate;
afterwards, complying with the instructions of President McKinley which later were ratified by
Congress (sec. 1 of the Act of July 1, 1902) the legislative powers of the Military Government were
transferred to the Philippine Commission; then, under the provisions of section 7 of the Act of
Congress of July 1, 1902, the Philippine Assembly was created and it functioned as a colegislative
body with the Philippine Commission. Finally, by virtue of the provisions of sections 12 of the Act of
Congress of August 29, 1916, known as the Jones Law, the Philippine Commission gave way to the
Philippine Senate, the Philippine Assembly became the House of Representatives, and thus was
formed the present Legislature composed of two Houses which has enacted the aforesaid Act No.
2886.

As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The
Philippine Commission, at various times, had amended it by the enactment of laws among which we
may cite Act No. 194, regarding preliminary investigation, Act No. 440 relating to counsels de
oficio and Act No. 590 about preliminary investigations by justices of the peace of provincial capitals.
Later on, and before the enactment of Act No. 2886, herein controverted, the Legislature had also
amended this General Orders No. 58 by the enactment of Act No. 2677 regarding appeals to the
Supreme Court of causes originating in the justice of the peace courts and by Act No. 2709 which
deals with the exclusion of accused persons from the information in order to be utilized as state's
witnesses.

These amendments repeatedly made by the Philippine Commission as well as by our present
Legislature are perfectly within the scope of the powers of the said legislative bodies as the
successors of the Military Government that promulgated General Orders No. 58.

No proof is required to demonstrate that the present Legislature had, and had, the power to enact
and amend laws. (U.S. vs. Bull. 15 Phil., 7.) That it has the power to legislate on criminal matters is
very evident from the wording of section 7 of the Jones Law which says:

That the legislative authority herein provided shall have power, when not inconsistent with
this Act, by due enactment to amend, alter, modify, or repeal any law, civil or criminal,
continued in force by this Act as it may from time to time see fit.

It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This assertion is
right; but it is also true that by reason of the principle of territoriality as applied in the supression, of
crimes, such power is delegated to subordinate government subdivisions such as territories. As we
have seen in the beginning, the territorial legislatures have the power to define and punish crimes, a
power also possessed by the Philippine Legislature by virtue of the provisions of sections 7, already
quoted, of the Jones Law. These territorial governments are local agencies of the Federal
Government, wherein sovereignty resides; and when the territorial government of the Philippines
prosecutes and punishes public crimes it does so by virtue of the authority delegated to it by the
supreme power of the Nation.

This delegation may be made either expressly as in the case of the several States of the Union and
incorporated territories like Porto Rico and Hawaii, or tacitly as is the case with the Philippines,
which is an organized territory though not incorporated with the Union. (Malcolm, Philippine
Constitutional Law, 181-205.)

This tacit delegation to our Government needs no demonstration. As a matter of fact, the crimes
committed within our territory, even before section 2 of General Orders No. 58 was amended, were
prosecuted and punished in this jurisdiction as is done at present; but then as now the repression of
crimes was done, and is still done, under the sovereign authority of the United States, whose name
appears as the heading in all pleadings in criminal causes and in other judicial papers and notarial
acts.

The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code of Civil
Procedure; in criminal causes the constant practice followed in this jurisdiction established its use;
and in notarial matters its use is provided by section 127 of Act No. 496. This long continued practice
in criminal matters and the legal provision relating to civil cases and notarial acts have not been
amended by any law, much less by Act No. 2886, the subject of the present inquiry.

There is not a single constitutional provision applicable to the Philippines prescribing the name to be
used as party plaintiff in criminal cases.

The fact that the political status of this country is as yet undetermined and in a transitory stage, is, in
our opinion, responsible for the fact that there is no positive provision in our constitutional law
regarding the use of the name of the People of the Philippine Islands, as party plaintiff, in criminal
prosecutions, as is otherwise the case in the respective constitutional charters of the States of the
Union and incorporated territories — a situation which must not be understood as depriving the
Government of the Philippines of its power, however delegated, to prosecute public crimes. The fact
is undeniable that the present government of the Philippines, created by the Congress of the United
States, is autonomous.

This autonomy of the Government of the Philippines reaches all judicial actions, the case at bar
being one of them; as an example of such autonomy, this Government, the same as that of Hawaii
and Porto Rico (People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L. ed., 507; 33
Sup. Ct. Rep., 352) cannot be sued without its consent. (Merritt vs. Government of the Philippine
Islands, 34 Phil., 311; L. S. Moon & Co. vs. Harrison, p. 27, ante.) The doctrine, laid down in these
cases, acknowledges the prerogative of personality in the Government of the Philippines, which, if it
is sufficient to shield it from any responsibility in court in its own name unless it consents thereto, it
should be also, as sufficiently authoritative in law, to give that government the right to prosecute in
court in its own name whomsoever violates within its territory the penal laws in force therein.

However, limiting ourselves to the question relative to the form of the complaint in criminal matters, it
is within the power of the Legislature to prescribe the form of the criminal complaint as long as the
constitutional provision of the accused to be informed of the nature of the accusation is not violated.

Under the Constitution of the United States and by like provisions in the constitutions of the
various states, the accused is entitled to be informed of the nature and cause of the
accusation against him . . .

It is within the power of the legislatures under such a constitutional provision to prescribe the
form of the indictment or information, and such form may omit averments regarded as
necessary at common law. (22 Cyc., 285.)

All these considerations a priori are strengthened a posteriori by the important reason disclosed by
the following fact — that the Congress has tacitly approved Act No. 2886. Both the Act of Congress
of July 1, 1902, section 86, and the Jones Law, last paragraph of section 19, provide that all the laws
enacted by the Government of the Philippines or its Legislature shall be forwarded to the Congress
of the United States, which body reserves the right and power to annul them. And presuming, as
legally we must, that the provisions of these laws have been complied with, it is undisputed that the
Congress of the United States did not annul any of those acts already adverted to — Nos. 194, 440,
490 (of the Philippine Commission), and 2677, 2709 and the one now in question No. 2886 (of the
present Legislature) — all of which were amendatory of General Orders No. 58. The Act now under
discussion (No. 2886) took effect on February 24, 1920, and the criminal complaint in this case was
filed on May 10, 1920. The silence of Congress regarding those laws amendatory of the said
General Order must be considered as an act of approval.

If Congress fails to notice or take action on any territorial legislation the reasonable inference
is that it approves such act. (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L.
 ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L. ed.], 960; Nixon vs.
Reid, 8 S.d., 507; 67 N.W., 57; 32 L.R.A., 315.)

Furthermore, supposing for the sake of argument, that the mention of the People of the Philippine
Islands as plaintiff in the title of the information constitutes a vice or defect, the same is not fatal
when, as in the present case, it was not objected to in the court below.

An indictment must, in many states under express statutory or constitutional provision, show
by its title or by proper recitals in the caption or elsewhere that the prosecution is in the name
and by the authority of the state, the commonwealth, or the people of the state, according to
the practice in the particular jurisdictions; but omissions or defects in this respect may be
supplied or cured by other parts of the records, and the omissions of such a recital or defects
therein, even when required by the constitution or by statute, is a defect of form within a
statute requiring exceptions for defect of form to be made before trial. (23 Cyc., 237, 238.)

We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No. 2886,
do not partake of the same character as the provisions of a constitution; that the said Act No. 2886 is
valid and is not violative of any constitutional provisions and that the court a quo did not commit any
of the errors assigned.

The sentence appealed from is hereby affirmed, the appellant being furthermore sentenced to the
accessory penalties prescribed in article 61 of the Penal Code, and to indemnify the heirs of the
deceased in the sum of P1,000 and to the payment of the costs of both instances. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña and Villamor, JJ., concur.

Ostrand and Johns, JJ., concur in the result.
 3

G.R. No. 164007 August 10, 2006

LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO TRILLANES IV,
CPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. GERARDO GAMBALA, CPT. NICANOR
FAELDON, LT. (SG) MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO
PASCUA, and 1LT. JONNEL SANGGALANG, Petitioners,
vs.
GEN. NARCISO ABAYA, in his capacity as Chief of Staff of the Armed Forces of the
Philippines, and B. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge
Advocate General of the Judge Advocate General’s Office (JAGO), Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order) filed by
the above-named members of the Armed Forces of the Philippines (AFP), herein petitioners, against
the AFP Chief of Staff and the Judge Advocate General, respondents.

The facts are:

On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some
members of the AFP, with high-powered weapons, had abandoned their designated places of
assignment. Their aim was to destabilize the government. The President then directed the AFP and
the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted men
of the AFP – mostly from the elite units of the Army’s Scout Rangers and the Navy’s Special Warfare
Group – entered the premises of the Oakwood Premier Luxury Apartments on Ayala Avenue, Makati
City. They disarmed the security guards and planted explosive devices around the building.

Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the
emblem of the "Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media,
announced their grievances against the administration of President Gloria Macapagal Arroyo, such
as the graft and corruption in the military, the illegal sale of arms and ammunition to the "enemies" of
the State, and the bombings in Davao City intended to acquire more military assistance from the US
government. They declared their withdrawal of support from their Commander-in-Chief and
demanded that she resign as President of the Republic. They also called for the resignation of her
cabinet members and the top brass of the AFP and PNP.

About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state of
rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary
measures to suppress the rebellion then taking place in Makati City. She then called the soldiers to
surrender their weapons at five o’clock in the afternoon of that same day.

In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the
soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several
hours of negotiation, the government panel succeeded in convincing them to lay down their arms
and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually, they
returned to their barracks.

A total of 321 soldiers, including petitioners herein, surrendered to the authorities.

The National Bureau of Investigation (NBI) investigated the incident and recommended that the
military personnel involved be charged with coup d’etat defined and penalized under Article 134-A of
the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the
Department of Justice (DOJ) recommended the filing of the corresponding Information against them.

Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General
Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved in
the Oakwood incident and directed the AFP to conduct its own separate investigation.

On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information
for coup d’etat 2against those soldiers, docketed as Criminal Case No. 03-2784 and eventually
raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was
consolidated with Criminal Case No. 03-2678, involving the other accused, pending before Branch
148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel.

On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No.
03-2784.

On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial
Investigation Panel tasked to determine the propriety of filing with the military tribunal charges for
violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the same
military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect toward the
President, the Secretary of National Defense, etc., (b) violation of Article 64 for disrespect toward a
superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation of Article 96 for conduct
unbecoming an officer and a gentleman, and (e) violation of Article 97 for conduct prejudicial to good
order and military discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein)
filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume
jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.) No.
7055. 5

On September 15, 2003, petitioners filed with the Judge Advocate General’s Office (JAGO) a motion
praying for the suspension of its proceedings until after the RTC shall have resolved their motion to
assume jurisdiction.

On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief
of Staff recommending that the military personnel involved in the Oakwood incident be charged
before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of War.

Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable
cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784.
Accordingly, the prosecution filed with the RTC an Amended Information. 6

In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped the
charge of coup d’etat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final Pre-
Trial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of absorption,"
those charged with coup d’etatbefore the RTCshould not be charged before the military tribunal for
violation of the Articles of War.

For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the
court martial against the accused…are hereby declared not service-connected, but rather absorbed
and in furtherance of the alleged crime of coup d’etat." The trial court then proceeded to hear
petitioners’ applications for bail.

In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO, reviewed
the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers involved in
the Oakwood incident, including petitioners, be prosecuted before a general court martial for
violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles of War.

On June 17, 2004, Colonel Magno’s recommendation was approved by the AFP top brass. The AFP
Judge Advocate General then directed petitioners to submit their answer to the charge. Instead of
complying, they filed with this Court the instant Petition for Prohibition praying that respondents be
ordered to desist from charging them with violation of Article 96 of the Articles of War in relation to
the Oakwood incident. 9

Petitioners maintain that since the RTC has made a determination in its Order of February 11, 2004
that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the
Articles of War is not service-connected, but is absorbed in the crime of coup d’etat, the military
tribunal cannot compel them to submit to its jurisdiction.

The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which
offenses covered by the Articles of War areservice-connected. These are violations of Articles 54 to
70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly cognizable
by the court martial. As the charge against petitioners is violation of Article 96 which, under R.A. No.
7055 is a service-connected offense, then it falls under the jurisdiction of the court martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue
that the offense charged before the General Court Martial has prescribed. Petitioners alleged therein
that during the pendency of their original petition, respondents proceeded with the Pre-Trial
Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming an
officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then referred
the case to the General Court Martial; that "almost two years since the Oakwood incident on July 27,
2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was done under questionable
circumstances;" 10 that in the hearing of July 26, 2005, herein petitioners moved for the dismissal of
the case on the ground that they were not arraigned within the prescribed period of two (2) years
from the date of the commission of the alleged offense, in violation of Article 38 of the Articles of
War; 11 that "the offense charged prescribed on July 25, 2005;" 12 that the General Court Martial
ruled, however, that "the prescriptive period shall end only at 12:00 midnight of July 26, 2005;" 13 that
"(a)s midnight of July 26, 2005 was approaching and it was becoming apparent that the accused
could not be arraigned, the prosecution suddenly changed its position and asserted that 23 of the
accused have already been arraigned;" 14 and that petitioners moved for a reconsideration but it was
denied by the general court martial in its Order dated September 14, 2005. 15

In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of
merit. He alleges that "contrary to petitioners’ pretensions, all the accused were duly arraigned on
July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29
accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the
Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17

The sole question for our resolution is whether the petitioners are entitled to the writ of prohibition.

There is no dispute that petitioners, being officers of the AFP, are subject to military law. Pursuant to
Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the Articles of War,
the term "officer" is "construed to refer to a commissioned officer." Article 2 provides:

Art. 2. Persons Subject to Military Law. – The following persons are subject to these articles and
shall be understood as included in the term "any person subject to military law" or "persons subject
to military law," whenever used in these articles:

(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of
the Philippine Constabulary, all members of the reserve force, from the dates of their call to active
duty and while on such active duty; all trainees undergoing military instructions; and all other
persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from the
dates they are required by the terms of the call, draft, or order to obey the same.

Upon the other hand, Section 1 of R.A. No. 7055 reads:

SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law,
including members of the Citizens Armed Forces Geographical Units, who commit crimes or
offenses penalized under the Revised Penal Code, other special penal laws, or local government
ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties, which
may be natural or juridical persons, shall be tried by the proper civil court, except when the offense,
as determined before arraignment by the civil court, is service-connected, in which case, the offense
shall be tried by court-martial, Provided, That the President of the Philippines may, in the interest of
justice, order or direct at any time before arraignment that any such crimes or offenses be tried by
the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in
Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.

In imposing the penalty for such crimes or offenses, the court-martial may take into consideration the
penalty prescribed therefor in the Revised Penal Code, other special laws, or local government
ordinances.

Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the general
rule that members of the AFP and other persons subject to military law, including members of the
Citizens Armed Forces Geographical Units, who commit crimes or offenses penalized under the
Revised Penal Code (like coup d’etat), other special penal laws, or local ordinances shall be tried by
the proper civil court. Next, it provides the exception to the general rule, i.e., where the civil court,
before arraignment, has determined the offense to be service-connected, then the offending soldier
shall be tried by a court martial. Lastly, the law states an exception to the exception, i.e., where the
President of the Philippines, in the interest of justice, directs before arraignment that any such
crimes or offenses be tried by the proper civil court.

The second paragraph of the same provision further identifies the "service-connected crimes or
offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97"
of the Articles of War. Violations of these specified Articles are triable by court martial. This
delineates the jurisdiction between the civil courts and the court martial over crimes or offenses
committed by military personnel.

Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of
military justice system over military personnel charged with service-connected offenses. The military
justice system is disciplinary in nature, aimed at achieving the highest form of discipline in order to
ensure the highest degree of military efficiency. 18 Military law is established not merely to enforce
discipline in times of war, but also to preserve the tranquility and security of the State in time of
peace; for there is nothing more dangerous to the public peace and safety than a licentious and
undisciplined military body. 19 The administration of military justice has been universally practiced.
Since time immemorial, all the armies in almost all countries of the world look upon the power of
military law and its administration as the most effective means of enforcing discipline. For this
reason, the court martial has become invariably an indispensable part of any organized armed
forces, it being the most potent agency in enforcing discipline both in peace and in war. 20

Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a
gentleman) of the Articles of War before the court martial, thus:

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City,
Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend
the Constitution, the law and the duly-constituted authorities and abused their constitutional
duty to protect the people and the State by, among others, attempting to oust the incumbent duly-
elected and legitimate President by force and violence, seriously disturbing the peace and tranquility
of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect
to the military profession, conduct unbecoming an officer and a gentleman, in violation of AW
96 of the Articles of War.

CONTRARY TO LAW. (Underscoring ours)

Article 96 of the Articles of War 21 provides:

ART. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, member of the Nurse
Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct
unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of War is service-connected. This is
expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing that the
charge against the petitioners concerns the alleged violation of their solemn oath as officers to
defend the Constitution and the duly-constituted authorities.Such violation allegedly caused
dishonor and disrespect to the military profession. In short, the charge has a bearing on
their professional conduct or behavior as military officers. Equally indicative of the "service-
connected" nature of the offense is the penalty prescribed for the same – dismissal from the
service – imposable only by the military court.Such penalty is purely disciplinary in character,
evidently intended to cleanse the military profession of misfits and to preserve the stringent standard
of military discipline.

Obviously, there is no merit in petitioners’ argument that they can no longer be charged before the
court martial for violation of Article 96 of the Articles of War because the same has been declared by
the RTC in its Order of February 11, 2004 as "not service-connected, but rather absorbed and in
furtherance of the alleged crime of coup d’etat," hence, triable by said court (RTC). The RTC, in
making such declaration, practically amended the law which expressly vests in the court martial the
jurisdiction over "service-connected crimes or offenses." What the law has conferred the court
should not take away. It is only the Constitution or the law that bestows jurisdiction on the court,
tribunal, body or officer over the subject matter or nature of an action which can do so. 22 And it is
only through a constitutional amendment or legislative enactment that such act can be done. The
first and fundamental duty of the courts is merely to apply the law "as they find it, not as they like it to
be." 23 Evidently, such declaration by the RTC constitutes grave abuse of discretion tantamount to
lack or excess of jurisdiction and is, therefore, void.

In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:

We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in the
dispositive portion of its Order dated February 11, 2004 that all charges before the court-martial
against the accused were not service-connected, but absorbed and in furtherance of the crime of
coup d’etat, cannot be given effect. x x x, such declaration was made without or in excess of
jurisdiction; hence, a nullity.

The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly
specifies what are considered "service-connected crimes or offenses" under Commonwealth Act No.
408, as amended, also known as the Articles of War, to wit:

Articles 54 to 70:

Art. 54. Fraudulent Enlistment.

Art. 55. Officer Making Unlawful Enlistment.

Art. 56. False Muster.

Art. 57. False Returns.

Art. 58. Certain Acts to Constitute Desertion.

Art. 59. Desertion.

Art. 60. Advising or Aiding Another to Desert.

Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President,

Congress of the Philippines, or Secretary of National

Defense.

Art. 64. Disrespect Toward Superior Officer.

Art. 65. Assaulting or Willfully Disobeying Superior Officer.

Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.

Art. 67. Mutiny or Sedition.

Art. 68. Failure to Suppress Mutiny or Sedition.

Art. 69. Quarrels; Frays; Disorders.

Art. 70. Arrest or Confinement.

Articles 72 to 92:

Art. 72. Refusal to Receive and Keep Prisoners.

Art. 73. Report of Prisoners Received.

Art. 74. Releasing Prisoner Without Authority.

Art. 75. Delivery of Offenders to Civil Authorities.

Art. 76. Misbehavior Before the Enemy.

Art. 77. Subordinates Compelling Commander to Surrender.

Art. 78. Improper Use of Countersign.

Art. 79. Forcing a Safeguard.

Art. 80. Captured Property to be Secured for Public Service.

Art. 81. Dealing in Captured or Abandoned Property.

Art. 82. Relieving, Corresponding With, or Aiding the Enemy.

Art. 83. Spies.

Art. 84. Military Property.–Willful or Negligent Loss, Damage

or wrongful Disposition.

Art. 85. Waste or Unlawful Disposition of Military Property

Issued to Soldiers.

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.

Art. 88. Personal Interest in Sale of Provisions.

Art. 88-A. Unlawful Influencing Action of Court.

Art. 89. Intimidation of Persons Bringing Provisions.

Art. 90. Good Order to be Maintained and Wrongs Redressed.

Art. 91. Provoking Speeches or Gestures.

Art. 92. Dueling.

Articles 95 to 97:

Art. 95. Frauds Against the Government.

Art. 96. Conduct Unbecoming an Officer and Gentleman.

Art. 97. General Article.

Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the
foregoing offenses. x x x.

It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of jurisdiction to
try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of the
Articles of War as these are considered "service-connected crimes or offenses." In fact, it mandates
that these shall be tried by the court-martial.

Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this case
is worth quoting, thus:

The trial court aggravated its error when it justified its ruling by holding that the charge of Conduct
Unbecoming an Officer and a Gentleman is ‘absorbed and in furtherance to the alleged crime of
coup d’etat.’ Firstly, the doctrine of ‘absorption of crimes’ is peculiar to criminal law and generally
applies to crimes punished by the same statute, 25unlike here where different statutes are involved.
Secondly, the doctrine applies only if the trial court has jurisdiction over both offenses. Here, Section
1 of R.A. 7055 deprives civil courts of jurisdiction over service-connected offenses, including Article
96 of the Articles of War. Thus, the doctrine of absorption of crimes is not applicable to this case.

Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military
personnel because the military constitutes an armed organization requiring a system of discipline
separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel carry
high-powered arms and other lethal weapons not allowed to civilians. History, experience, and the
nature of a military organization dictate that military personnel must be subjected to a separate
disciplinary system not applicable to unarmed civilians or unarmed government personnel.

A civilian government employee reassigned to another place by his superior may question his
reassignment by asking a temporary restraining order or injunction from a civil court. However, a
soldier cannot go to a civil court and ask for a restraining or injunction if his military commander
reassigns him to another area of military operations. If this is allowed, military discipline will collapse.

xxx

This Court has recognized that courts-martial are instrumentalities of the Executive to enable the
President, as Commander-in-Chief, to effectively command, control, and discipline the armed forces
(see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrop’s Military Law and Precedents, 2nd
edition, p. 49). In short, courts-martial form part of the disciplinary system that ensures the
President’s control, and thus civilian supremacy, over the military. At the apex of this disciplinary
system is the President who exercises review powers over decisions of courts-martial (citing Article
50 of the Articles of War; quoted provisions omitted).

xxx

While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly
and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil. 401
[1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The Court
has never suppressed court-martial proceedings on the ground that the offense charged ‘is
absorbed and in furtherance of’ another criminal charge pending with the civil courts. The Court may
now do so only if the offense charged is not one of the service-connected offenses specified in
Section 1 of RA 7055. Such is not the situation in the present case.

With respect to the issue of prescription raised by petitioners in their Supplemental Petition, suffice it
to say that we cannot entertain the same. The contending parties are at loggerheads as to (a) who
among the petitioners were actually arraigned, and (b) the dates of their arraignment. These are
matters involving questions of fact, not within our power of review, as we are not a trier of facts. In a
petition for prohibition, such as the one at bar, only legal issues affecting the jurisdiction of the
tribunal, board or officer involved may be resolved on the basis of the undisputed facts. 26

Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the unlawful
and oppressive exercise of authority and is directed against proceedings that are done without or in
excess of jurisdiction, or with grave abuse of discretion, there being no appeal or other plain,
speedy, and adequate remedy in the ordinary course of law. 27 Stated differently, prohibition is the
remedy to prevent inferior courts, corporations, boards, or persons from usurping or exercising a
jurisdiction or power with which they have not been vested by law. 28

In fine, this Court holds that herein respondents have the authority in convening a court martial and
in charging petitioners with violation of Article 96 of the Articles of War.

WHEREFORE, the instant petition for prohibition is DISMISSED.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZ

Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN

Chief Justice
REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice
 CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ ENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN

Chief Justice

Footnotes

1 A group which spearheaded the Revolution of 1896 against Spain.

2 As defined and penalized under Article 134-A of the Revised Penal Code, as amended.

3 Now Associate Justice of the Court of Appeals.

4Entitled "An Act for Making Further and More Effectual Provision for the National Defense
by Establishing a System of Military Justice for Persons Subject to Military Law."

5Entitled "An Act Strengthening Civilian Supremacy Over The Military By Returning To The
Civil Courts The Jurisdiction Over Certain Offenses Involving Members Of The Armed
Forces Of The Philippines, Other Persons Subject To Military Law, And The Members Of
The Philippine National Police, Repealing For The Purpose Certain Presidential Decrees."

6 Rollo, pp. 176-179.

7 Id., pp. 370-380.

8 Id., pp. 207-209.

9 Id., pp. 14-15.

10 Par. 4, Supplemental Petition, p. 4.

11 Article 38 of the Articles of War partly provides:

"Article 38. As to Time. – Except for desertion or murder committed in time of war, or for
mutiny, no person subject to military law shall be liable to be tried or punished by a court-
martial for any crime or offense committed more than two years before the arraignment of
such person: x x x."

12
Pars. 8, 18, Supplemental Petition, pp. 5, 10.

13 Par. 9, id.

Par. 10, id. Petitioners stated, under this footnote, that the "(r)ulings before the General
14

Court Martial were done orally; unavailability of the TSN for the July 26, 2005 hearing."

15 Par. 14, id.

16 Comment, p. 10.

17 Id., p. 18.

18 Gloria, PHILIPPINE MILITARY LAW Annotated, revised edition, p. 3.

19 Id.

20 Id., pp. 4-5.

21Commonwealth Act No. 408, as amended by Republic Act No. 242 (approved on June 12,
1948).

Arnado v.Buban, A.M. No. MTJ-04-1543, May 31, 2004, 430 SCRA 382, 386; Republic v.
22

Estipular, G.R. No. 136588, July 20, 2000, 336 SCRA 333, 340.

23 Resins, Inc. v. Auditor General, G.R. No. 17888, October 29, 1968, 25 SCRA 754.

24 G.R. Nos. 162318 and 162341, October 25, 2004, 441 SCRA 393, 409-421.

25E.g., Murder (Article 248) and Robbery (Articles 294-295) absorbed by Rebellion (Article
134) of the Revised Penal Code (People v. Hernandez, 99 Phil. 515 [1956]; Illegal
Possession of Marijuana (Section 8, Republic Act No. 6425) absorbed by Illegal Sale of
Marijuana (Section 4, Republic Act No. 6425) (People v. De Jesus, 229 Phil. 518 [1986]).

26 Mafinco Trading Corp. v. Ople, No. L-37790, March 25, 1976, 70 SCRA 139, 160-161.
 Section 2, Rule 65 of the 1997 Rules of Civil Procedure, as amended; Vergara v. Rugue,
27

No. L-32984, August 26, 1977, 78 SCRA 312.

28Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, October
24, 1996, 263 SCRA 490.

The Lawphil Project - Arellano Law Foundation

Agenda of August 8, 2006

Item No. 67

G.R. No. 164007 – (LT. [SG] EUGENE GONZALES, LT. [SG] ANDY TORRATO, LT. [SG] ANTONIO
TRILLANES IV, CPT. GARY ALEJANO, LT. [SG] JAMES LAYUG, CPT. NICANOR FAELDON, LT.
[SG] MANUEL CABOCHAN, ENS. ARMAND PONTEJOS, LT. [JG] ARTURO PASCUA, ET AL. v.
GEN. NARCISO ABAYA, in his capacity as the Chief-of-Staff of the ARMED FORCES OF THE
PHILIPPINES, and BRIG. GEN. MARIANO M. SARMIENTO, JR., in his capacity as the Judge
Advocate General of the Judge Advocate General Office [JAGO])

Promulgated:

August 10, 2006

CONCURRING OPINION

CALLEJO, SR., J.:

I concur with the encompassing ponencia of Madame Justice Angelina Sandoval-Gutierrez ordering
the dismissal of the petition. However, I find it necessary to elucidate on my opinion relative to the
submission of petitioners that the punitive act for conduct unbecoming an officer and a gentleman
defined in Article 96 of the Articles of War is absorbed by coup d’etat, a political felony, especially in
light of the opinion of the Pre-Trial Investigation Panel that the punitive act as well as these service-
connected punitive acts defined in Articles 63, 64, 96 and 97 of the Articles of War, are indeed
absorbed by coup d’etat.

The charge against petitioners reads:

Violation of Article 96

All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City,
Makati, Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to
defend the Constitution, the law and the duly-constituted authorities and abuse their constitutional
duty to protect the people and the State by, among others, attempting to oust the incumbent duly-
elected and legitimate president by force and violence, seriously disturbing the peace and tranquility
of the people and the nation they are sworn to protect, thereby causing dishonor and disrespect to
the military profession, conduct unbecoming an officer and a gentleman, in violation of AW 96 of the
Articles of War.
 CONTRARY TO LAW.

Article 96 of the Articles of War defines the punitive act of conduct unbecoming an officer and a
gentleman as follows:

Art. 96. Conduct Unbecoming an Officer and Gentleman. – Any officer, cadet, flying cadet, or
probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman
shall be dismissed from the service.

Case law has it that common crimes committed in furtherance of a political crime, such as rebellion,
are therein absorbed. A political crime is one directly aimed against the political order as well as
such common crimes as may be committed to achieve a political purpose. The decisive factor is the
intent or motive. Coup d’etat is a political crime because the purpose of the plotters is to seize or
diminish State power. If a crime usually regarded as common, like murder, is perpetrated to achieve
a political purpose, then said common crime is stripped of its common complexion, inasmuch as,
being part and parcel of the crime of rebellion, the former acquires the political character of the
latter. 1 Such common offenses assume the political complexion of the main crime of which they are
mere ingredients, and, consequently, cannot be punished separately from the principal offense, or
complexed with the same to justify the imposition of the graver penalty. 2

In Ponce Enrile v. Amin, 3 the court ruled that the principle of absorption of common crimes by the
political crime applies to crimes defined and penalized by special laws, such as Presidential Decree
No. 1829, otherwise known as Obstruction of Justice. However, in Baylosis v. Chavez,
Jr., 4 the Court ruled that the rulings of this Court in People v. Hernandez, 5 Ponce Enrile v.
Amin 6 and Enrile v. Salazar, 7 do not apply to crimes which, by statutory fiat, are sui generis.

Indeed, the service-connected punitive acts defined and penalized under the Articles of War are sui
generis offenses not absorbed by rebellion perpetrated, inter alia, by the officers and enlisted
personnel of the Armed Forces of the Philippines (AFP) or coup d’etat. This is so because such acts
or omissions are merely violations of military discipline, designed to secure a higher efficiency in the
military service; in other words, they are purely disciplinary in their nature, and have exclusive regard
to the special character and relation of the AFP officers and enlisted personnel. Laws providing for
the discipline as well as the organization of the AFP are essential to the efficiency for the military
service in case their services should ever be required. "Deprive the executive branch of the
government of the power to enforce proper military regulations by fine and imprisonment, and that,
too, by its own courts-martial, which from time immemorial have exercised this right, and we at once
paralyze all efforts to secure proper discipline in the military service, and have little left but a
voluntary organization, without cohesive force." 8

It bears stressing that for determining how best the AFP shall attend to the business of fighting or
preparing to fight rests with Congress and with the President. Both Congress and this Court have
found that the special character of the military requires civilian authorities to accord military
commanders some flexibility in dealing with matters that affect internal discipline and morale. In
construing a statute that touches on such matters, therefore, courts must be careful not to
circumscribe the authority of military commanders to an extent never intended by Congress. Under
these and many similar cases reviewing legislative and executive control of the military, the
sentencing scheme at issue in this case, and the manner in which it was created, are constitutionally
unassailable. 9

Officers and enlisted personnel committing punitive acts under the Articles of War may be
prosecuted and convicted if found guilty of such acts independently of, and separately from, any
charges filed in the civilian courts for the same or similar acts which are penalized under the Revised
Penal Code, under special penal laws or ordinances; and prescinding from the outcome thereof.

At this point, it is well to have a basic understanding of the Articles of War under Commonwealth Act
No. 408, which was essentially copied from that of the United States, which, in turn, had been
superseded by the Uniform Code of Military Justice. Our Articles of War has since been amended by
Republic Act Nos. 242 and 516.

The Articles of War is the organic law of the AFP and, in keeping with the history of military law, its
primary function is to enforce "the highest form of discipline in order to ensure the highest degree of
military efficiency." The following commentary is enlightening:

History points out the fact that nations have always engaged in wars. For that purpose, bodies of
men have been organized into armed forces under a commander-in-chief who, through his
subordinate commanders, enforces the highest form of discipline in order to ensure the highest
degree of military efficiency.

Victory in battle is the ultimate aim of every military commander, and he knows that victory cannot be
attained, no matter how superior his forces may be, in men and materials, if discipline among the
rank-and-file is found wanting. For, "if an Army is to be anything but an uncontrolled mob, discipline
is required and must be enforced." For this reason, in order to set an effective means of enforcing
discipline, all organized armies of the world have promulgated sets of rules and regulations and
later, laws as embodied in the articles of war, which define the duties of military personnel and
distinguish infractions of military law and impose appropriate punishment for violation thereof. 10

Every officer, before he enters in the duties of his office, subscribes to these articles and places
himself within the powers of courts-martial to pass on any offense which he may have committed in
contravention thereof. 11

It is said that conduct unbecoming an officer and a gentleman is a uniquely military offense. 12 In
order to constitute the said offense, the misconduct must offend so seriously against the law, justice,
morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same
time must be of such a nature or committed under such circumstances as to bring dishonor or
disrepute upon the military profession which he represents. 13 The article proscribing conduct
unbecoming an officer and a gentleman has been held to be wholly independent of other definitions
of offenses, and the same course of conduct may constitute an offense elsewhere provided for and
may also warrant a conviction under this provision; it is not subject to preemption by other punitive
articles. 14

The administration of military justice under the Articles of War has been exclusively vested in courts-
martial whether as General Courts-Martial, Special Courts-Martial or Summary Courts-
Martial. 15 Courts-martial pertain to the executive department and are, in fact, simply instrumentalities
of the executive power, provided by Congress for the President as Commander-in-Chief to aid him in
properly commanding the army and navy, and enforcing discipline therein. 16

As enunciated by the United States Supreme Court, "the military is, by necessity, a specialized
society separate from civilian society. It has, again by necessity, developed laws and traditions of its
own during its long history. The differences between the military and civilian communities result from
the fact that it is the primary business of armies and navies to fight or ready to fight wars should the
occasion arise." 17 Further, the US Supreme Court quite succinctly stated that "the military
constitutes a specialized community governed by a separate discipline from that of the civilian." 18
I wish to emphasize, however, a caveat: not all service-connected punitive acts under the Articles of
War may be prosecuted before the courts-martial independently of a crime defined and penalized
under the Revised Penal Code against the same accused based on the same set of delictual acts.
Congress may criminalize a service-connected punitive offense under the Articles of War.

A review of the deliberations in the Senate or the Report of the Conference Committee of Senate Bill
1500 will readily show that coup d’etat was incorporated in the Revised Penal Code in Article 134-A
precisely to criminalize "mutiny" under Article 67 of the Articles of War and to penalize the punitive
act of mutiny, under the Articles of War as coup d’etat. Article 67 of the Articles of War reads:

Art. 67. Mutiny or Sedition. – Any person subject to military law who attempts to create or who
begins, excites, causes, or joins in any mutiny or sedition in any company, party, post, camp,
detachment, guard, or other command shall suffer death or such other punishment as a court-martial
may direct.

Without Article 134-A in the Revised Penal Code, the mutineers would be charged for mutiny under
Article 67 of the Articles of War:

Senator Lina. Yes, Mr. President.

Senator Enrile. Then we added Article 134-A which deals with the new crime of coup d’etat.

Senator Enrile. – and we defined how this newly characterized and defined crime would be
committed in Article 134-A?

Senator Lina. Yes, Mr. President.

Senator Enrile. And, in fact, we made a distinction between the penalty of the crimes defined under
Article 134 of the Revised Penal Code and the crime defined under Article 134-A, is this correct, Mr.
President?

Senator Lina. Yes, Mr. President.

Senator Enrile. In fact, we distinguished between the conspiracy and proposal to commit the crime of
rebellion from the conspiracy and proposal to commit coup d’ etat?

Senator Lina. Yes, Mr. President.

Senator Enrile. So that, for all intents and purposes, therefore, we are defining a new crime under
this proposed measure—

Senator Lina. Yes, Mr. President.

Senator Enrile.—which is coup d’etat. We are, in effect, bringing into the Revised Penal Code, a
crime that was penalized under the Articles of War as far as military participants are concerned and
call it with its name "coup d’etat"?

Senator Lina. Yes, Mr. President. That is the . . .

Senator Enrile. Because without this criminalization of coup d’etat under the Revised Penal Code,
people in the active service would be charged with mutiny?
Senator Lina. Yes, Mr. President. Especially when they are inside the camp, when the rank-and-file
go up to arms or insubordination or against the orders of their superiors, they would be charged
under the Articles of War.

Senator Enrile. In fact, one of the distinguishing features of a coup d’etat as defined here is, apart
from the overt acts of taking a swift attack with violence, intimidation, threat, strategy, or stealth
against the duly-constituted authorities or an installation, et cetera, the primary ingredient of this
would be the seizure or diminution of state power.

Senator Lina. Yes, that is the objective, Mr. President.

Senator Enrile. On the other hand, in the case of rebellion as defined under Article 134, it does not
necessarily mean a seizure of State power or diminution of State power, but all that is needed would
be to deprive the Chief Executive or the legislature of any of its powers.

Senator Lina. That is correct, Mr. President.

Senator Enrile. So that, there is a basis to consider a clear and definable distinction between the
crime of coup d’etat and the crime of rebellion as defined under Article 135?

Senator Lina. Yes, Mr. President.

Senator Enrile. I just want to put that into the Record.

Thus, officers and enlisted personnel of the AFP charged of coup d’etat can no longer be charged
with mutiny under Article 67 of the Articles of War before courts-martial for the same delictual or
punitive act.

I vote to DISMISS the petition.

ROMEO J. CALLEJO, SR.

Associate Justice

Footnotes

1
People v. Hernandez, 99 Phil. 515, 536 (1956).

2 Id. at 541.

3 G.R. No. 93335, September 13, 1990, 189 SCRA 573, 580-581.

4 G.R. No. 95136, October 3, 1991, 202 SCRA 405, 416.

5 Supra note 1.

6 Supra note 3.
 7 G.R. No. 92163, June 5, 1990, 186 SCRA 217.

8 Michigan v. Wagner, 77 N.W. 422.

9 Loving v. U.S., 517 U.S. 748, 778, 116 S.Ct. 1737 (1966).

10 Gloria, Philippine Military Law Annotated, p. 3.

11 Carter v. Roberto, 177 U.S. 497 (1900).

12 U.S. v. Weldon, 7 M.J. 938 (1979).

13 Parker v. Levy, 417 U.S. 733 (1974).

14 U.S. v. Taylor, 23 M.J. 341 (1987).

15 Article 3, Articles of War.

16 Supra note 14, p.17, citing Winthrop, Military Law and Precedents (2nd ed.), 49.

17 U.S. ex rel. Toth v. Quarles, 350 U.S. 11 (1955).

18 Orloff v. Willoughby, 345 U.S. 83 (1953)

The Lawphil Project - Arellano Law Foundation

G.R. No. 164007 – LT. (SG) EUGENE GONZALES, LT. (SG) ANDY TORRATO, LT. (SG) ANTONIO
TRILLANES IV, CAPT. GARY ALEJANO, LT. (SG) JAMES LAYUG, CPT. NICANOR FAELDON, LT.
(SG) MANUEL COBOCHAN, ENS. ARMAND PONTEJOS, LT. (JG) ARTURO PASCUA, and 1LT.
JONHNEL SANGGALANG, Petitioners, versus GEN. NARCISO ABAYA, in his capacity as Chief of
Staff of the Armed Forces of the Philippines, and B/GEN. MARIANO M. SARMIENTO, JR., in his
capacity as the Judge Advocate General of the Judge Advocate General Office (JAGO),
Respondents.

Promulgated:

August 10, 2006

SEPARATE OPINION

(Concurring and Dissenting)

Tinga, J.:

My concurrence to the dismissal of the petition is limited to a much narrower ground than that
offered by the majority opinion, which, with due respect, I am unable to fully join and thus impelled to
mostly dissent from. The broad propositions adopted by the majority render inutile Republic Act No.
7055, (RA 7055) that generally restored civil jurisdiction over offenses involving members of the
Armed Forces of the Philippines (AFP). This law stands as a key implement in the restoration of
civilian supremacy over the military, a precept that was reinvigorated with the restoration of civil
democracy in 1986. The rationale that sustains the majority position stands athwart to that important
constitutional principle as effectuated through RA 7055.

Instead, my position hinges on the peculiar nature of Article 96 of the Articles of War, the violation of
which petitioners stand accused of before the court-martial. Not only does Article 96 embody a rule
uniquely military in nature, it also prescribes a penalty wholly administrative in character which the
civilian courts are incapable of rendering. For that reason alone, I agree that petitioners may stand
civilian trial for coup d’etat and court-martial for violation of Article 96.

Still, I acknowledge that I would have voted to grant the petition had petitioners faced other charges,
instead of the sole Article 96 charge, before the court-martial in connection with the Oakwood
mutiny. I submit that RA 7055 precisely authorizes the civil court to independently determine whether
the offense subject of the information before it is actually service-connected. If the trial court does
determine, before arraignment, that the offense is service-connected, it follows that, as a rule, the
military court will not have jurisdiction over the acts constituting the offense.

Restatement of Relevant Facts

The following facts I consider relevant.

On 5 August 2003, just a little over a week after the so-called Oakwood mutiny, the Department of
Justice filed an Information with the Regional Trial Court (RTC) of Makati against 321 military
personnel, including petitioners, for violation of Article 134-A of the Revised Penal Code which is the
crime of coup d’etat. After the case was docketed as Criminal Case No. 03-2784, the RTC directed
the DOJ to conduct a reinvestigation of the said case. On the same day that the order for re-
investigation was issued, the AFP Chief of Staff created a Pre-Trial Investigation Panel against the
same persons to determine the propriety of filing charges with a military tribunal against petitioners,
along with 300 or so other soldiers, for violation of the Articles of War, again in connection with the
Oakwood mutiny. Thus, 243 of the accused before the RTC, including petitioners, filed a motion with
the trial court praying that the court assume jurisdiction over all the charges filed with the military
tribunal, following RA 7055. 1

After re-investigation, the DOJ found probable cause for the crime of coup d’etat against only 31 of
the original 321 accused. The DOJ then filed a motion for dismissal of the charge of coup
d’etat against the 290 others, which motion was granted by the RTC in an Order dated 14 November
2003. Petitioners were among the 31 who still faced the charge of coup d’etat before the RTC.

Notwithstanding the dismissal of the charge of coup d’etat against the 290 soldiers, they were still
charged before the General Court Martial for violation of Articles 63, 64, 67, 96 and 97 of the Articles
of War. 2 Among the charges faced by these soldiers was for "mutiny," punishable under Article
63. Only those soldiers the charge of coup d’etat against whom was dismissed were
subjected to the charge of Articles of War violations before the court-martial. Some of these
290 soldiers challenged the jurisdiction of the court-martial in a petition for prohibition before this
Court, which was denied in Navales v. Abaya 3 in 2004.

On the other hand, on 9 December 2003, the Pre-Trial Investigation Panel recommended that the 31
officers facing the charge of coup d’etat before the trial court be excluded from the court-martial
proceedings. The rationale that the Panel offered was the assumption of civilian jurisdiction by the
RTC based on RA 7055 and its belief that the charges against the 31 it was investigating were
absorbed by the crime of coup d’etat, which was already within the jurisdiction of the RTC to try and
decide.

It was on 11 February 2004 that the RTC issued an Order (RTC Order) stating that "all charges
before the court-martial against the accused.. are hereby declared not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup d’etat." Note that as of then, only 31
officers remained within the jurisdiction of the RTC. If there are any relevant subjects of the RTC
Order, it is these 31, including petitioners, and not the 290 others the case for coup d’etat against
whom had already been dismissed.

Thus, as things stood as of 11 February 2004, only 31 officers, including petitioners, were still within
the jurisdiction of the RTC, as they remained charged with coup d’etat. None of the 31 were facing
any charge before the court-martial, the investigation against them by the AFP Pre-Trial
Investigation Panel had already been concluded by then. On the other hand, the 290 other soldiers,
including the Navales petitioners, were no longer facing any criminal cases before the RTC, but were
instead facing court-martial charges. This symmetry is deliberate, cognizant as the DOJ and the AFP
were of the general principle, embodied in RA 7055, that jurisdiction over acts by soldiers which
constitute both a crime under the penal laws and a triable offense under the Articles of War is
exercised exclusively by either the civilian court or the court-martial, depending on the
circumstances as dictated under Section 1 of RA 7055.

It was in June of 2004 that this symmetry was shattered. It appears that at that point, the AFP
reconsidered its earlier decision not to try the 31 officers before the court-martial. There appears per
record, a letter dated 17 June 2004, captioned "Disposition Form," signed by a certain De Los
Reyes, and recommending that the 31 be charged as well before the court-martial for violation of
Article 96 of the Articles of War and that pre-trial investigation be reconducted for that
purpose. 4 This recommendation was approved by then AFP Chief of Staff Narciso Abaya. It was this
decision to reinitiate court-martial proceedings against the 31 that impelled the present petition for
prohibition.

As stated earlier, I believe that ultimately, petitioners may still be charged with violation of Article 96
of the Articles of War, notwithstanding the pending case for coup d’etat before the RTC against
them. My reason for such view lies in the wholly administrative nature of Article 96 and the sole
penalty prescribed therein, dismissal from service, which is beyond the jurisdiction of civilian courts
to impose. Yet I arrive at such view without any denigration of the RTC Order, which proceeds from
fundamentally correct premises and which, to my mind, bears the effect of precluding any further
charges before the court-martial against petitioners in relation to the Oakwood mutiny. Unfortunately,
the majority gives undue short shrift to the RTC Order and the predicament confronting the present
petitioners, who are now facing not only trial before the civilian court for the crime of coup d’etat, but
also court-martial proceedings for acts which if not identical to those charged in the criminal case are
at least integrally related. I respectfully submit that RA 7055 was precisely designed to generally
prevent such anomaly, but that the majority fails to give fruition to such legislative intent.

Instead, the majority has laid down a general rule that if members of the military are charged
before military tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then
the court-martial proceedings would progress unhampered even if the acts which constitute
the violation of the Articles of War also constitute offenses under the Revised Penal Code.
The court-martial proceedings would also ensue even if the said personnel are also charged
for the same acts with a criminal case before the civilian court, and even if the civilian court
determines that the acts are not service-connected. Most critically, this view would allow the
defendant to be tried and convicted by both the military and civilian courts for the same acts,
despite the consistent jurisprudential rule that double jeopardy applies even as between
court-martial and criminal trials. I cannot agree to these general propositions, excepting
when the defendants happen to be charged before the court-martial for violation of Article 96
of the Articles of War.

There are three fundamental questions that are consequently raised. First, can Congress by law
limit the jurisdiction of military tribunals and court-martials? Second, does RA 7055
effectively deprive military courts jurisdiction over violations of Articles of War 54 to 70, 72 to
92, and 95 to 97 if the civilian court determines that the offenses charged do not constitute
service-connected offenses? And third, does it constitute double jeopardy if the same
military actor is tried and convicted before both civilian and military courts for the same
acts? I respectfully submit that all these questions should generally be answered in the
affirmative.

Jurisdictions of Courts-Martial In

the Philippines Fundamentally Statutory

I begin with the constitutional and statutory parameters of courts-martial in the Philippines.

It is settled, in cases such as Ruffy v. Chief of Staff, 5 that court-martial proceedings are executive in
character, deriving as they do from the authority of the President as the Commander-in-Chief of the
armed forces. 6 Indeed, the authority of the President to discipline members of the armed forces
stands as one of the hallmarks of the commander-in-chief powers. Obedience to the President and
the chain-of-command are integral to a professional and effective military, and the proper juridical
philosophy is to accede as much deference as possible to this prerogative of the President.

However, in Marcos v. Chief of Staff, 7 decided five (5) years after Ruffy, the Court ruled that the
word "court" as used in the Constitution included the General Court-Martial, citing Winthrop’s Military
Law and Precedents, which noted that "courts-martial are [in] the strictest sense courts of
justice". 8 Indeed, it would be foolhardy to ignore, with semantics as expedient, the adjudicative
characteristics of courts-martial and their ability to inflict punishment constituting deprivation of
liberty, or even life. A court-martial is still a court of law and justice, 9 although it is not a part of the
judicial system and judicial processes, but remains to be a specialized part of the over-all
mechanism by which military discipline is preserved. 10

Regardless of the accurate legal character of courts-martial, it should go without saying that the
authority of the President to discipline military personnel through that process is still subject to a
level of circumscription. Without such concession, the President could very well impose such
draconian measures of military punishment, such as death by firing squad for overweight soldiers.
The Court has indeed, on occasion, recognized limitations and regulations over courts-martial.
In Olaguer v. Military Commission, 11 the Court reasserted that military tribunals cannot try and
exercise jurisdiction over civilians for as long as the civil courts are open and functioning. 12 The
authority of the Supreme Court to review decisions of the court-martial was affirmed in Ognir v.
Director of Prisons,13 and should be recognized in light of the judicial power of the Supreme Court
under the 1987 Constitution, which extends to determining grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. And
finally, there are the series of rulings on the subject of double jeopardy, which I shall soon discuss
further.

Most strikingly, the "Articles of War" presently in use emanates not from executive fiat, but from a
law passed by the National Assembly known as Commonwealth Act No. 408. As such, the
determination of what acts or offenses are punishable by court-martial was in actuality made not by
the President, but by the legislature. As such, the Articles of War are utterly susceptible to legislative
amendment, augmentation, or even revocation.

I do not doubt that without an enabling law, the President would have the power to impose court-
martial proceedings under the aegis of the Commander-in-Chief clause. Yet if there is an enabling
law passed, such as Commonwealth Act No. 408, then the President is bound to exercise the power
to prescribe court-martial proceedings only within the limits imposed by the law. These precepts
should not preclude the President from mandating other forms of military discipline, but if the choice
is to subject the soldier concerned to court-martial, then such proceedings should ensue within the
boundaries determined by the legislature under Commonwealth Act No. 408.

American jurisprudence is actually quite emphatic that the jurisdiction of a court-martial is

established by statute, and a court-martial has no jurisdiction beyond what is given by statute. "[A]
court-martial [is] a special statutory tribunal, with limited powers." 14 To quote from Corpus Juris
Secundum:

The jurisdiction of a court-martial is premised on an authorized convening authority, court

membership in accordance with the law, and power derived from congressional act to try the
person and the offense charged. [ 15 Thus, in order for a court-martial to have jurisdiction, it must
be convened and constituted in accordance with law[ 16; and a court-martial has no jurisdiction
beyond what is given it by statute.[ 17 General court-martial jurisdiction is not restricted territorially to
the limits of a particular state or district.

The long continued practice of military authorities in exercising court-martial jurisdiction may aid in
the interpretation of statutes conferring such jurisdiction; but the authority of a Secretary of an
armed forces department to issue regulations does not permit extension of the jurisdictions
of courts-martial of the armed force controlled by that department beyond the limits fixed by
Congress[ 19

The language of statutes granting jurisdiction to courts-martial to try persons for offenses must be
construed to conform as near as may be to the constitutional guarantees that protect the rights of
citizens in general, it being assumed that Congress intended to guard jealously against dilution of
the liberties of citizens by the enlargement of jurisdiction of military tribunals at the expense of the
jurisdiction of the civil courts. 20

Clearly then, while court-martial under military law may be sui generis, it is not supra legem. The
power to try by court-martial is established, defined and limited by statute, even if it arises as a
consequence of the power of the President as Commander-in-Chief.

What are the implications of these doctrines to the case at bar? To my mind, they sufficiently
establish that Congress does have the power to exclude certain acts from the jurisdiction of the
General Court-Martial. The same legislature that enacted Commonwealth Act No. 408 is very well
empowered to amend that law, as it has done on occasion. 21 And I submit that Congress has done
so with the enactment of RA 7055.

Republic Act No. 7055

The title of RA 7055 reads "An Act Strengthening Civilian Supremacy Over the Military By
Returning to the Civil Courts the Jurisdiction Over Certain Offenses Involving Members of the
Armed Forces of the Philippines, Other Persons Subject to Military Law, and the Members of the
Philippine National Police, Repealing for the Purpose Certain Presidential Decrees." 22 In the
Philippines, the conferment of civil jurisdiction over members of the military charged with non-service
connected offenses is predicated on the constitutional principle of civilian supremacy over the
military. 23 As Senator Wigberto Tañada remarked in his sponsorship remarks over Senate Bill No.
1468, eventually enacted as RA 7055, "[A]s long as the civil courts in the land remain open and are
regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for
criminal offenses committed by them and which are properly cognizable by the civil courts. To have
it otherwise would be a violation of the aforementioned constitutional provisions on the supremacy of
civilian authority over the military and the integrity and independence of the judiciary, as well as the
due process and equal-protection clauses of the Constitution." 24

The title of the law alone is already indicative of the law’s general intent to exclude from the
jurisdiction of the General Court-martial "certain offenses" which would now be tried by the
civil courts. Section 1 operationalizes such intent, asserting as a general rule that members of the
AFP "who commits crimes penalized under the Revised Penal Code, other special penal laws, or
local government ordinances xxx shall be tried by the proper civil court xxx." Notably, the majority
does concede the general rule.

The exception of course, are offenses which are service-connected. They are excluded from the
jurisdiction of the civilian courts. It is worth mentioning at this juncture that the concept of "service-
connected" offenses as a determinant of court-martial jurisdiction arose from American
jurisprudence. In O’Callahan v. Parker, 25 decided in 1969, the U.S. Supreme Court reversed
previous doctrines and announced a new constitutional principle ── that a military tribunal ordinarily
may not try a serviceman charged with a crime that has no service connection. 26

RA 7055 Reposes on the Trial Court

The Specific Role of Determining Whether

The Offense is Service-Connected

Obviously, the ascertainment of whether or not a crime is service-connected is of controversial

character, necessitating the exercise of judgment. Appropriately, that function is assigned by
Section 1 not to the courts-martial, but to the civil courts. Indeed, Section 1 requires that before
the offense shall be tried by court-martial, there must be first a determination before arraignment by
the civil court that the offense is indeed service-connected. Section 1 states:

Members of the Armed Forces of the Philippines and other persons subject to military law xxx who
commit crimes or offenses penalized under the Revised Penal Code, other special penal laws, or
local government ordinances, regardless of whether or not civilians are co-accused, victims or
offended parties which may be natural or juridical persons, shall be tried by the proper civil court,
except when the offense, as determined before arraignment by the civil court, is service-
connected, in which case the offense shall be tried by court-martial xxx

As used in this Section, service-connected crimes or offenses shall be limited to those

defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No.
408, as amended. 27 (Emphasis supplied.)

There are two possible scenarios that may arise after a soldier commits a crime which is punishable
under both the Revised Penal Code and under Commonwealth Act No. 408.
In one, the soldier is charged only with violation of the Articles of War and tried by the court-martial.
In this situation wherein no criminal case is filed against the soldier, the court-martial continues
unimpeded.

In the other, the soldier is charged with both violation of the Articles of War (triable by court-martial)
and a criminal offense involving the same act (triable by the civilian court). Here, a different set of
rules operates. RA 7055 comes into application in such a case. Section 1 of RA 7055 clearly
reposes on the trial court, and not the court-martial, the duty to determine whether the charges in the
information are service-connected. If the civilian court makes a determination that the acts
involved are not service-connected, then the court-martial will generally have no jurisdiction.

In this particular role, the trial court is merely guided in its determination by Articles of War
54 to 70, 72 to 92, and 95 to 97, the specific articles to which the determination of service-
connected offenses according to RA 7055 is limited. The importance of the trial court’s function
of determination cannot be dismissed lightly. Since the law mandates that the trial court make such a
determination, it necessarily follows that the court has to ascertain on its own whether the offenses
charged do fall within the Articles of War. It would not bind the civilian court that the defendants
are charged with the same acts before the court-martial under Articles of War 54 to 70, 72 to
92, and 95 to 97. The civilian court is required to still make a determination, independent of
that of the court-martial, that the acts charged constitute a service-connected offense.

However, the majority is satisfied that since petitioners are charged before the military tribunal with
violation of one of the Articles of War so mentioned in Section 1 of RA 7055, this offense is within the
jurisdiction of the court-martial. The majority is thus of the position that regardless of whatever
transpires in the civilian court trial, court-martial proceedings may ensue unimpeded so long as the
defendants therein are charged with Articles of War 54 to 70, 72 to 92, and 95 to 97. Such
jurisdiction of the court-martial subsists even if the civilian courts had determined that the acts which
constitute the offense triable under court-martial are not service-connected. This position renders
utterly worthless the function of the civilian courts to determine whether the offense is
indeed service-connected, as such determination would no longer have any bearing on the
jurisdiction of the courts-martial to try the same acts.

Justice Carpio, in particular, asserts in his Concurring Opinion that the civilian court is limited to "only
a facial examination of the charge sheet in determining whether the offense charged is service
connected." 28 This proposition negates the entire purpose of RA 7055, as it would ultimately render
the military as the sole judge whether a civilian court can acquire jurisdiction over criminal acts by
military personnel, even if such soldier has committed a crime under the Revised Penal Code. Under
this position, all the military has to do is to charge the actor with violation of Articles of War 54 to 70,
72 to 92, and 95 to 97, and the civilian court would be effectively deprived of jurisdiction to try the
offense, even if the act is clearly punishable under civil penal laws. With all due respect, such "facial
examination", which would be undertaken by a learned judge of a civilian court, can be
accomplished with ease by a non-lawyer, by a fifteen-year old, or anybody with rudimentary skills in
the English language. After all, the only necessary act for such purpose would be to look at the
charge sheet and the Articles of War. As long as the civilian court sees that charge sheet states that
the defendants have been charged with any of the aforementioned Articles of War, the determinative
function would already be accomplished.

Under the standard of "facial examination," the trial court can very well make its determination even
without the benefit of charge sheet if there is no such charge sheet yet. In reality though, the trial
courts primary source of information and basis for determination is the information in the criminal
case before it, as well as the affidavits and documents which the prosecution may make available to
it. Assuming that there is a court-martial charge sheet, the same on its face may be incapable of
capturing the particulars of the criminal acts committed, as there is no prescribed demand for such
particularity. As such, a "facial examination" could not suffice in affording the civilian court any
significant appreciation of the relevant factors in determining whether the offense was indeed
service-connected.

Worse, by advocating "facial examination" as a limit, this view would actually allow malfeasors in the
military to evade justice, if they are fortunate enough to have sympathizers within the military brass
willing to charge them with a violation of the aforementioned articles of war in order that they escape
the possibly harsher scrutiny of the civilian courts. For example, Article 69 of the Articles of War
punishes persons subject to military law who commit frauds against the government, which include,
among others, stealing, embezzling, knowingly and willfully misappropriating, applying to his own
use or benefit or wrongfully or knowingly selling or disposing of "any ordinance, arms, equipment,
ammunition, clothing, subsistence stores, money or other property of the Government furnished or
intended for the military service." 29 The offense, which according to the majority is strictly a service-
connected offense, is punishable by "fine or imprisonment, or by such other punishment as a court-
martial may adjudge, or by any or all of said penalties." 30 A military comptroller who embezzles the
pension funds of soldiers could be made liable under Article 95, and thus could be appropriately
charged before the court-martial. Also pursuant to Article 95, the court-martial has the discretion to
impose as final punishment a fine of P1,000.00, even if the comptroller embezzled millions of pesos.
If the said comptroller has friends within the military top brass, the prospect of such a
disproportionate penalty is actually feasible.

Now, if Justice Carpio’s position were to be pursued, no civilian court, whether the RTC or the
Sandiganbayan, could acquire jurisdiction over the comptroller for the offense of embezzlement,
which is punishable under the Revised Penal Code and the Anti-Graft and Corrupt Practices Act, the
moment the comptroller faces the charge of violating Article 95 before the court-martial. Why?
Because these civilian courts would be limited to "only a facial examination of the charge sheet in
determining whether the offense is service-connected." Justice Carpio adds, "[i]f the offense, as
alleged in the charge sheet, falls under the enumeration of service-connected offenses in Section 1
of RA No. 7055, then the military court has jurisdiction over the offense."

Applying Justice Carpio’s analysis to this theoretical example, the offense is "as alleged in the
charge sheet" is a violation of Article 95 of the Articles of War. Article 95 "falls under the enumeration
of service-connected offenses in Section 1 of R.A. No. 7055." Then, according to Justice Carpio, "the
military court has jurisdiction over the offense." Yet Section 1 also

states that as a general rule that it is the civilian courts which have jurisdiction to try the
offense, "except when the offense, as determined before arraignment by the civil court, is
service-connected, in which case the offense shall be tried by court-martial." The ineluctable
conclusion, applying Justice Carpio’s view to our theoretical example, is that the civilian
court does not have jurisdiction to try the offense constituting embezzlement since it was
forced to determine, following the limited facial examination of the charge sheet, that the act
of embezzlement punishable under Article 95 of the Articles of War is a service-connected
offense.

If "facial examination" ill-suffices as the appropriate standard of determination, what then should be
the proper level of determination?

Full significance should be accorded the legislative tasking of the civil court, not the military court, to
determine whether the offense before it is service-connected or not. Indeed, determination clearly
implies a function of adjudication on the part of the trial court, and not a mechanical application of a
standard pre-determined by some other body. The word "determination" implies deliberation 31 and
is, in normal legal contemplation, equivalent to "the decision of a court of justice." 32 The Court
in EPZA v. Dulay 33 declared as unconstitutional a presidential decree that deprived the courts the
function of determining the value of just compensation in eminent domain cases. In doing so, the
Court declared, "the determination of ‘just compensation’ in eminent domain cases is a judicial
function." 34

The majority shows little respect for the plain language of the law. As earlier noted, they believe that
the determination reposed in the civilian court is limited to a facial examination of the military charge
sheet to ascertain whether the defendants have been charged before the court-martial with the
violation of Articles of War 54 to 70, 72 to 92, and 95 to 97. Their position could have been sustained
had Section 1 read, "As used in this Section, service-connected crimes or offenses are those
defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408,
as amended," discarding the phrase "shall be limited to" immediately preceding the words "those
defined." Such phraseology makes it clear that "service-connected crimes or offenses" are
equivalent to "Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97." Yet Section 1 is hardly
styled in that fashion. Instead, it precisely reads, "xxx service-connected crimes or offenses shall be
limited to those defined in Articles 54 to 70 xxx."

What is the implication of the phrase "shall be limited to"? This has to be tied to the role of
determination ascribed to the civilian court in the previous paragraph under Section 1. Note again,
"determination" signifies that the civilian court has to undertake an inquiry whether or not the acts are
service connected. As stated earlier, the Articles of War specified in Section 1 serve as guides for
such determination. "shall be limited to" assures that the civilian court cannot rely on a ground not
rooted on those aforementioned articles in ruling that an offense is service-connected. For example,
the civilian court cannot declare that an offense is service-connected because the offender is a
three-star general. Being a three-star general is in no way connected to Articles 54 to 70, Articles 72
to 92, and Articles 95 to 97.

At the same time, Section 1 concedes that if the act or offense for which the defendant is prosecuted
before the civilian court also falls within those specified Articles of War, then the civilian court has to
further determine whether the offense is service-connected. For example, a soldier who knowingly
harbors or protects an enemy of the state may be liable under Article 82 of the Articles of War, which
generally punishes military persons who aid the enemy, or under Article 114 of the Revised Penal
Code, which classifies giving aid or comfort to the enemy as an act of treason. If the soldier is
charged with treason, the civilian court may be called upon to determine whether the acts of
assistance are service-connected, and it should be able to take into account the particular
circumstances surrounding such acts. If the trial court determines that the offense is indeed service-
connected, finding for example that the defendant had used his/her rank to assist the enemy, then it
may rely on Article 82 in its conclusion that the act is service-connected. If however, the actor’s
being also a soldier proved merely incidental and inconsequential to the assistance rendered to the
enemy, the civilian court could very well declare that the offense is not service-connected and thus
subject to trial for treason before it.

The function devolved by the law on the trial court involves the determination of which offenses are
service-connected and which offenses are not. The power of determination, however, is
circumscribed by the law itself. By employing the phrase "shall be limited to" and tying it with
specifically enumerated Articles, the law precludes the trial court from characterizing acts which fall
under the Articles not so enumerated as service-connected. Since Article 93 defining rape and
Article 94 defining "various crimes" are not included in the enumeration in RA 7055 it follows that the
trial court is devoid of authority to declare rape and "various crimes" as service-connected.
Again, the general purpose of RA 7055 is to deprive the court-martial of jurisdiction to try cases
which are properly cognizable before the civilian courts. Hence, if a soldier is charged with violation
of any of the articles other than those referred to in Section 1, the court-martial is deprived of
jurisdiction under RA 7055 if such violation also constitutes a crime or offense under our penal laws.
Section 1, by citing those aforementioned articles, carves an exception to the general rule, yet at the
same time, qualifies this exception as subject to the determination of the trial court. Hence, if the trial
court so determines that the "service-connected" exception does not apply, the general rule
depriving the court-martial jurisdiction over the offense should continue to operate.

It is worth mentioning that prior to RA 7055, Commonwealth Act No. 408 recognized an exception to
the rule that military persons are always subjected to court-martial in lieu of civil trial. Article 94
stipulated that a person subject to military law who committed a felony, crime, breach of law or
violation of municipal ordinance recognized as an offense of a penal nature was punishable by court-
martial, provided that such act was committed "inside a reservation of the [AFP]," or outside such
reservation when the offended party is a person subject to military law. 35The implication, therefore,
was that if such act described were committed outside a military reservation, the civilian courts
would have jurisdiction to try such offense. As the official Manual for Courts-Martial of the AFP
states, "[w]henever persons subject to military law commit any of the offenses above stated outside
Philippine Army reservations, they fall under the exclusive jurisdiction of civil courts." 36

RA 7055 clearly expands this exception, by now mandating that even crimes committed within
military reservations fall within the jurisdiction of civil courts, the only exception remaining is if it is
determined by the civilian court that the offense is actually service-connected. Significantly, Section
1 of RA 7055 did not include Article 94 as among the Articles of War which define service-connected
offenses. 37 Evidently the situs of the offense is not material as to whether the acts committed are
service-connected offenses.

Admittedly, RA 7055 effectively curtails the ability of the military leadership to discipline the soldiers
under their command through the court-martial process. This is accomplished though not by
shielding errant soldiers from the criminal processes, but instead through the opposite route, by
entrusting to the civilian courts the authority and sufficient discretion to impose substantive justice on
such soldiers, conformably with the constitutional principle of civilian supremacy over the military. It
must be noted that the acquisition of exclusive jurisdiction by the court-martial to try soldiers for acts
punishable under penal laws is a double-edged sword of mischief. It can be utilized by a military
leadership with an unquenchable thirst to punish its soldiers, a procedure which is facilitated due to
the relatively lighter evidentiary requirements under military justice. It can also be utilized by a
military leadership greatly sympathetic to one of their "mistahs" under fire, since the ability to inflict
the lightest and most disproportionate of punishments falls within the wide range of discretion in the
punishment accorded by law to courts-martial. Either premise is undesirable, and precisely RA 7055
was enacted to ensure that the civilian courts have all the opportunity to acquire jurisdiction over
military persons who commit crimes, and to assure the trial courts all the discretion necessary to
determine whether it should assume jurisdiction if the exception provided under Section 1 of the law
is invoked.

RA 7055 Generally Prevents Military Personnel

From Facing Simultaneous Criminal Trials and Courts-Martial

Over the Same Acts or Offenses

It is thus not enough that petitioners have been charged with violating an Article of War referred to in
Section 1 to authorize their court-martial to proceed, since the same act that constitutes the violation
of an Article of War is also alleged in the complaint for coup d’etat now pending in the civilian courts.
In order that the court-martial proceedings against petitioners could ensue, it is indisputably
necessary that the RTC Order determining that the charges before the court-martial are not service-
connected is directly nullified or reconsidered with the needed effect of terminating the criminal case
for coup d’etat against them. If the act constituting the offense triable before the civilian courts and
the court-martial are the same, then the defendants may be tried only either before the civilian courts
or the court-martial, and not in both tribunals.

This is precisely why the exceptions under Section 1 of RA 7055 were provided for – to
prevent the anomaly of the defendants being subjected to two different trials of equally
punitive value for the same act. It is well worth noting that the Senate deliberations on RA 7055
indicate a strong concern on the part of the legislators over the situation wherein violations of the
Articles of War also stand as violations of the Revised Penal Code. The following exchange between
the late Senate President Neptali Gonzales and Senator Wigberto Tañada is worth noting:

Senator Gonzales. Again, in line 16, it says: The offenses defined in Articles 54 to 93 and 95 to 97
of the Articles of War, established by Commonwealth Act Numbered Four Hundred Eight, as
amended, the same shall be triable by court-martial.

But there are many offenses which are also violations of the Articles of War. For example,
murder. It may not necessarily be a murder of a fellow member of the Armed Forces. That is
also a violation of the Articles of War; but, at the same time, it is also a crime punishable
under the Penal Code. What do we do in such a situation?

Senator Tañada. In such an example, that would be tried by the civil courts. We had accepted
the amendment proposed by Senator Ziga to exclude Article 93 under the Articles of War which
would refer to murder or rape committed in times of war. Now, we have excluded that, because we
believe that the murder or rape, whether committed in times of war, should not be tried by the civil
courts.

Senator Gonzales. Do we have the distinguished Gentleman’s assurance that after deleting Article
93, also with respect to Articles 54 to 92, 95 to 97, there is absolutely no situation wherein the same
act constitutes a violation of the Revised Penal Code and at the same time a violation of the Articles
of War?

Senator Tañada. Yes, Mr. President. We excluded also Article 94 of the Articles of War, because
this refers to various crimes that may be committed by persons subject to military law, which crimes
can be considered as felonies, breach of law, or violation of municipal ordinance, which is
recognized as an offense of a penal nature, and is punishable under the penal laws of the
Philippines or under municipal ordinances.

Senator Gonzales. We have the assurance of the distinguished Gentleman, and we rely on that
assurance. xxx 38

The passage deserves to be cited as it affirms the deliberate intent, already evident in the text of the
law itself, to avoid the scenario of the civilian courts and the courts-martial exercising concurrent
jurisdiction over the same acts. Hence, for as long as the act committed by the soldier does not fall
within those Articles of War referred to in Section 1, the civilian courts alone exercises jurisdiction
over the trial of the acts. If it is asserted by the courts-martial, or otherwise argued, that the act
complained of falls within those Articles of War referred to in Section 1, then the civilian court must
make a determination that the acts committed are "service-connected," with the cited Articles as
reference, before it can exercise its jurisdiction to the exclusion of the courts-martial. If the trial court
declares that the acts are service-connected, it then is obliged to decline jurisdiction in favor of the
courts-martial.

The cited passage does express the opinion of Senator Tañada that there is absolutely no situation
wherein the same act constitutes a violation of the Revised Penal Code and at the same time a
violation of the Articles of War. Such opinion might be cited to refute the declaration in the RTC
Order that the acts charged before the court-martial were absorbed in the crime of coup d’etat. Yet
caution should be had before this opinion of Senator Tañada is cited for that purpose. The quoted
remarks were made on 21 May 1990, or five (5) months before the crime of coup d’etatwas
incorporated into the Revised Penal Code with the enactment of Republic Act No. 6968 on 24
October 1990. Certainly, when Senator Tañada made such opinion, he had no reason to believe that
the cited Articles of War did not constitute any violation of the Revised Penal Code, particularly the
crime of coup d’etat, since no such crime existed then.

Double Jeopardy

There is another vital reason RA 7055 cannot be interpreted in such a way as to permit both civilian
and military trials of military personnel over the same act. Double jeopardy would arise as a
consequence if such an interpretation were foisted.

It is very well settled that double jeopardy attaches if one is tried by both a military court and a
civilian court over the same act, notwithstanding the differing natures of both tribunals. The rule was
pronounced by the Philippine Supreme Court as far back as 1903, in U.S. v. Colley. 39 Therein, the
defendant was sentenced to death by a court-martial after murdering a fellow soldier, but the
sentence could not be carried out after the reviewing authority of the Army concluded that the
military authorities were without power to carry into execution the sentence. He then was charged
with the same offense before a civilian court. In ruling that the criminal case should be dismissed,
the Court ruled that the criminal trial was barred by double jeopardy. The Court pronounced: "So
here there is but one offense, that against the United States, and when the Government chooses the
tribunal in which to try an offender, when the trial takes place in that tribunal, and when the accused
is convicted and sentenced, he can not again be put in jeopardy in another court of the same
sovereignty. xxx It follows that the defendant having been once in jeopardy can not be tried again for
the offense of which he was formerly convicted." 40 A similar situation obtained in U.S. v.
Tubig, 41 decided some months later, and a similar judgment of acquittal was mandated by the Court
on the ground of double jeopardy.

The doctrine has survived past the American occupation. In 1954, the Court was again confronted
with the issue whether a sentence passed by a military court barred further prosecution of the same
offense in a civilian court. The Court, in Crisologo v. People, 42 squarely ruled that double jeopardy
indeed barred such prosecution:

As we see it, the case hinges on whether the decision of the military court constitutes a bar to further
prosecution for the same offense in the civil courts.

The question is not of first impression in this jurisdiction. In the case of U. S. vs. Tubig, 3 Phil., 244, a
soldier of the United States Army in the Philippines was charged in the Court of First Instance of
Pampanga with having assassinated one Antonio Alivia. Upon arraignment, he pleaded double
jeopardy in that he had already been previously convicted and sentenced by a court-martial for the
same offense and had already served his sentence. The trial court overruled the plea on the grounds
that as the province where the offense was committed was under civil jurisdiction, the military court
had no jurisdiction to try the offense. But on appeal, this court held that "one who has been tried and
convicted by a court-martial under circumstances giving that tribunal jurisdiction of the defendant
and of the offense, has been once in jeopardy and cannot for the same offense be again prosecuted
in another court of the same sovereignty." In a later case, Grafton vs. U. S. 11 Phil., 776, a private in
the United States Army in the Philippines was tried by a general court-martial for homicide under the
Articles of War. Having been acquitted in that court, he was prosecuted in the Court of First Instance
of Iloilo for murder under the general laws of the Philippines. Invoking his previous acquittal in the
military court, he pleaded it in bar of proceedings against him in the civil court, but the latter court
overruled the plea and after trial found him guilty of homicide and sentenced him to prison. The
sentence was affirmed by this Supreme Court, but on appeal to the Supreme Court of the United
States, the sentence was reversed and defendant acquitted, that court holding that "defendant,
having been acquitted of the crime of homicide alleged to have been committed by him by a court-
martial of competent jurisdiction proceeding under the authority of the United States, cannot be
subsequently tried for the same offense in a civil court exercising authority in the Philippines."

There is, for sure, a rule that where an act transgresses both civil and military law and subjects the
offender to punishment by both civil and military authority, a conviction or an acquittal in a civil court
cannot be pleaded as a bar to a prosecution in the military court, and vice versa. But the rule "is
strictly limited to the case of a single act which infringes both the civil and the military law in such a
manner as to constitute two distinct offenses, one of which is within the cognizance of the military
courts and the other a subject of civil jurisdiction" (15 Am. Jur., 72), and it does not apply where both
courts derive their powers from the same sovereignty. (22 C. J. S., 449.) It therefore, has no
application to the present case where the military court that convicted the petitioner and the civil
court which proposes to try him again derive their powers from one sovereignty and it is not disputed
that the charges of treason tried in the court-martial were punishable under the Articles of War, it
being as a matter of fact impliedly admitted by the Solicitor General that the two courts have
concurrent jurisdiction over the offense charged. 43

As noted earlier, Marcos, relying on Winthrop’s Military Law, pronounced that courts-martial are still
courts in constitutional contemplation. 44 At the same time, the Court in Marcos pursued the logic of
this thinking insofar as double jeopardy was concerned:

Besides, that a court-martial is a court, and the prosecution of an accused before it is a criminal and
not an administrative case, and therefore it would be, under certain conditions, a bar to another
prosecution of the defendant for the same offense, because the latter would place the accused in
double jeopardy, is shown by the decision of the Supreme Court of the United States in the case of
Grafton vs. United States, 206 U. S. 333; 51 Law. Ed., 1088, 1092, in which the following was held:

"If a court-martial has jurisdiction to try an officer or soldier for a crime, its judgment will be accorded
the finality and conclusiveness as to the issues involved which attend the judgments of a civil court
in a case of which it may legally take cognizance; . . . and restricting our decision to the above
question of double jeopardy, we adjudge that, consistently with the above act of 1902, and for the
reasons stated, the plaintiff in error, a soldier in the Army, having been acquitted of the crime of
homicide, alleged to have been committed by him in the Philippines, by a military court of competent
jurisdiction, proceeding under the authority of the United States, could not be subsequently tried for
the same offense in a civil court exercising authority in that territory."

I am aware that following the Court’s 1993 ruling in People v. Pineda, 45 double jeopardy will not
attach unless either the RTC or the court-martial passes sentence on the petitioners. Yet even
applying the Pineda doctrine, it is inevitable that, once either tribunal renders judgment on the
merits, double jeopardy would bar the further prosecution by the court which was last in time to
pronounce sentence, regardless whether petitioners were convicted or acquitted. If both the RTC
trial for coup d’etat and the court-martial of the petitioners are allowed to proceed unhampered, the
strong likelihood arises that either one will be eventually mooted, no matter the stage, should the
other pronounce sentence.

I submit that RA 7055 precisely sought to avoid such a scenario by prescribing, as a general rule, an
exclusively civilian trial for military personnel charged with offenses punishable under our penal laws,
even if they are also punishable under the Articles of War. The only general exception lies if the
civilian court determines that the acts constituting the court-martial offenses are service-connected,
as defined under those Articles of War referred to in Section 1, in which case jurisdiction falls
exclusively with the court-martial. If the civilian court arrives at a contrary determination, the civilian
court retains jurisdiction to the exclusion of the court-martial unless and until such determination is
reconsidered or set aside, or unless the criminal case is dismissed or dropped for reasons other than
acquittal on the merits. The only exception I am willing to concede is if the charge before the court-
martial falls under Article 96, which I will discuss further.

Notion of Absorption of Crimes

Irrelevant to Determination under RA 7055

I would like to dwell briefly on the suggestion that the RTC erred in pronouncing that the acts for
which petitioners were charged before the court-martial were "absorbed" in the crime of coup d’etat.
Justice Callejo, Sr., in his Concurring Opinion, cites Baylosis v. Chavez, 46 and the rule that the
doctrines laid down on the absorption of common crimes by political crimes do not apply to crimes
which are sui generis offenses.

This aspect is no longer material to my own disposition of the petition, yet I think it is misplaced to
apply the doctrine of absorption of crimes to the determination of service-connected offenses made
by the civilian court pursuant to Section 1 of RA 7055. The function of such determination by the trial
court under RA 7055 is wholly different from that utilized by the trial court in ascertaining whether
crime A is absorbed by crime B in the classic criminal law context. The latter is material to the trial
court in reaching conclusions as to which crimes may be considered against the accused and which
penalties may apply as to them. However, the purpose of the determination under RA 7055 is merely
for establishing whether the acts for which the accused stand charged before the courts-martial are
indeed service-connected offenses cognizable exclusively before the military courts, or non-service
connected offenses cognizable exclusively before the civilian courts. The determining factor is
whether the act is "service-connected," not whether one act is absorbed into the other.

The RTC may have been too loose in language when it utilized the word "absorbed," yet the word
should not be appreciated in the context of absorption of crimes, as such consideration is wholly
irrelevant for purposes of Section 1. Instead, I think that the pertinent conclusion of the RTC in its
Order was that the acts charged before the court-martial were not service-connected, as they were
committed in furtherance of the crime of coup d’etat. This, and not the notion of absorption of crimes,
should be the foundational basis for any attack of the RTC Order.

The Special Circumstance Surrounding Article of War 96

It is my general conclusion that if the civilian court makes a determination that the acts for which the
accused stands charged of, for violating those Articles of War referred to in Section 1 of RA 7055,
are not service-connected, then such determination, once final, deprives the court-martial jurisdiction
to try the offense. However, I submit that Article of War 96 warrants special consideration, as it
differs in character from the other Articles of War referred to in Section 1 of RA 7055.

Article 96 of Commonwealth Act No. 408, as amended, reads:

Art. 96. Conduct Unbecoming an Officer and a Gentleman. — Any officer, cadet, flying cadet, or
probationary second lieutenant, who is convicted of conduct unbecoming an officer and a gentleman
shall be dismissed from the service.

Justice Callejo, Sr. points out in his Concurring Opinion that "conduct unbecoming an officer and a
gentleman is a uniquely military offense," 47 and that "[t]he article proscribing conduct unbecoming an
officer and a gentleman has been held to be wholly independent of other definitions of offenses xxx
[and] is not subject to preemption by other punitive articles." 48 It is difficult to dispute these
conclusions, which derive from American military case law. After all, "conduct unbecoming" pertains
to the unique exigencies of military life and discipline, whereby an officer is expected to conform to
an idiosyncratic etiquette not required of civilians.

Yet more pertinent to my position is the penalty prescribed by Article 96 for "conduct unbecoming."
The penalty is dismissal from service, a penalty which is administrative in character, and beyond the
jurisdiction of the civilian court to impose. Notably, of all the Articles of War referred to in Section 1 of
RA 7055, it is only Article 96 that provides for dismissal from service as the exclusive penalty. All the
other articles so mentioned allow for the penalty of death, imprisonment, or a punishment "as a
court-martial may so direct" which could very well constitute any deprivation of life or liberty. While
these other articles prescribes a penalty which is penal in nature, it is only Article 96 which provides
for a penalty which is administrative in character.

As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of
Article 96 of Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC
determines that the acts constituting such violation are service-connected. The intent of RA 7055 is
to restore to civilian courts jurisdiction over offenses which are properly cognizable by them to the
exclusion of courts-martial. Such intent could obviously not extend to those offenses which the
civilian courts do not have jurisdiction to try and punish. Civilian courts are utterly incapable of
penalizing military officers with the penalty of discharge from the service, since the penalty is
administrative in character 49 and imposable only by the military chain of command.

Petition Should Have Been Granted If Petitioners

Were Charged Under A Different Article of War

Still, if petitioners were facing the charge of mutiny under Article 63 of the Articles of War, or any
other Article of War for that matter, in connection with the Oakwood incident, the petition would have
been fully meritorious. The RTC has made a determination that all acts related to the Oakwood
incident are not service-connected offenses. I am not fully prepared to subscribe to the position that
the acts relating to Oakwood were "absorbed" in the offense of coup d’etat. However, I do concede
two important points. First, the RTC did determine that the acts relating to Oakwood were not
service-connected. Second, the determination of the RTC, as embodied in the 11 February 2004
Order, remains binding as the said Order has not been appealed. It has not been modified or set
aside, even by the present decision or by the ruling in Navales.

The majority is clearly in a quandary, all too willing to pronounce that the Order is wrong, or even a
nullity, yet unable to directly nullify the same. Respondents argue that the Order is already final and
beyond challenge, and that contention should not be dismissed offhand. The suggestion has been
raised that the principle of res judicata should not be made to apply in this case, since the AFP was
not a party to the criminal case. This claim is off-tangent, assuming as it does that the AFP somehow
has a distinct and segregate legal personality from the government of the Philippines. The AFP is
part of the government. It is indeed headed by the same person who heads the executive branch of
government. The AFP likewise answers to officers of the executive branch, such as the Secretary of
Defense. Certainly, the rendition of the Order would have presumably caused the same level and
degree of grief on the AFP as it would have on the Department of Justice.

But was the government truly offended by the RTC Order? If it were, it should have timely elevated
the same for appellate review. The fact that it did not gives further indication that the government
recognized that Order as fundamentally correct, especially considering that it contains the very same
conclusions reached by the Pre-Trial Investigating Panel constituted by the AFP.

I think in the end, respondents fully understood and applied the correct implications of RA 7055 as it
pertained to petitioners. Had respondents been aligned in thinking with the majority, they would have
been emboldened to charge petitioners with violations of other Articles of War despite the RTC
Order and the pendency of the coup d’etatcase. Petitioners could have very well been charged
before the court-martial with violation of Article 63, for mutiny, just as the 290 other participants in
the "Oakwood mutiny." Respondents however did not do so, respecting in fact the assumption of
jurisdiction by the civilian court over the crime of coup d’etat. Instead, respondents limited the court-
martial charge against petitioners for violation of Article 96, a punitive article which is nonetheless
wholly administrative in character and in penalty.

The majority unfortunately shows no similar prudence. Instead, it has opted to take the path that
leads to most resistance. With the decision today, there now stands a very real danger tomorrow
that persons standing criminal trial before the civil courts, including the Sandiganbayan, who also
happen to be facing charges before the court-martial for violation of Articles 54 to 70, 72 to 92, 95 or
97, will move for the dismissal of all their cases before the civilian courts. Assuming that there is
integral relation between the acts now cognizable under court-martial and the acts for which those
defendants face criminal trial, the trial courts will feel but little choice to dismiss those charge, in light
of the present majority ruling. Military justice was once supreme over civilian justice. We should not
go down that way again. Too many ghosts haunt that road.

I vote to dismiss the petition, for the reason discussed above. Insofar as the majority ruling deviates
from the views I stated herein, I respectfully dissent.

DANTE O. TINGA
Associate Justice

Footnotes

1 Rollo, pp. 107-115.

2 See id. at 186-206.

3
G.R. No. 162318 & 162341, 25 October 2004, 441 SCRA 393. The author of this opinion
was a member of the Court that unanimously decided Navales, which used a similar
rationale in dismissing the petitions therein to that now employed by the majority. Even at
present, the author submits that Navales was correctly decided, considering the following
declaration made by the Court therein: " There was no factual and legal basis for the RTC
(Branch 148) to rule that violations of Articles 63, 64, 67, 96, and 97 of the Articles of War
were committed in furtherance of coup d'etat and, as such, absorbed by the latter crime. It
bears stressing that, after a reinvestigation, the Panel of Prosecutors found no
probable cause for coup d'etat against the petitioners and recommended the
dismissal of the case against them. The trial court approved the recommendation and
dismissed the case as against the petitioners. There is, as yet, no evidence on record
that the petitioners committed the violations of Articles 63, 64, 96, and 97 of the Articles of
War in furtherance of coup d'etat" Navales v. Abaya, id., at 417. Nonetheless, the author
acknowledges that several passages in Navales are not consistent with the views expressed
in this Opinion which now embodies the author’s present thinking, arrived at after
considerable reevaluation of the legal issues involved.

4 Rollo, pp. 266-267.

5 75 Phil. 875 (1946).

6 See also e.g., S/Sgt. Santiago v. Lt. Col. Alikpala, et al., 134 Phil. 309, 318 (1968).

7 89 Phil. 246 (1951).

8
Id. at 248-249.

9Claro C. Gloria, Philippine Military Law, p. 18 (1956), citing Winthrop, Military Law and
Precedents , 2nd Ed., p. 54.

"As a court of law, it is bound, like any court, by the fundamental principles of law, and in the
absence of a special provision on the subject in the military code, it observes in general the
rules of evidence as adopted in the civil courts. As a court of justice, it is required, by the
terms of its statutory oath, to adjudicate between the Philippines and the accused "without
partiality, favor, or affection," and according, not only to the laws and customs of the service,
but to its "conscience, i.e., its sense of substantial right and justice unaffected by
technicalities. In the strictest sense courts-martial are courts of justice."

10Magno v. de Villa, G.R. No. 92606, 26 July 1991, 199 SCRA 663, 673, citing Chief Justice
Teehankee in Vargas v. RADM Kilcline, et al.

11 GR. Nos. L-54558 & L-69882, 22 May 1987, 150 SCRA 144.

12 Id. at 165.

13 80 Phil. 401 (1948).

14 Collins v. McDonald, 258 US 416, 417.

15 NCMR - U.S. v. Moody, 10 M.J. 845.

16 ACMR – U.S. v. Wilson, 27 M.J. 555.

17 In re Wilson, D.C.Va., 33 F.2d 214.

18 U.S. ex rel. Hirshberg v. Cooke, N.Y., 69 S.Ct. 530, 336 U.S. 210, 93 L.Ed. 621.

19U.S. ex rel. Flannery v. Commanding General, Second Service Command, D.C.N.Y., 69

F.Supp. 661.

20 57 C.J.S. Military Justice § 156. Emphasis supplied.

21Com. Act No. 408 has been amended by Rep. Act No. 242 (1948) and Rep. Act No. 516
(1950).

22 Emphasis supplied.

23 See Constitution, Art. II, Section 3.

24 Record of the Senate, 9 May 1990, p. 671.

25 395 U.S. 298 (1969).

26See also Gosa v. Mayden, 413 U.S. 665, 672 (1973). O’Callahan in turn was reversed by
the U.S. Supreme Court in its 1987 ruling in Solorio v. U.S., 483 U.S. 435, which reiterated
the previous doctrine that the proper exercise of court-martial jurisdiction over an offense
hinged on one factor: the military status of the accused. Solorio v. U.S., id. at 450-451. Still, it
would be foolhardy to apply any persuasive value to the Solorio ruling to the present petition.
The Court in Solorio whole-heartedly embraced the principle that it was the U.S. Congress
that possessed "the authority to regulate the conduct of persons who are actually members
of the armed services", id., at 441. The U.S. Supreme Court also acknowledged that
"Congress has primary responsibility for the delicate task of balancing the rights of
servicemen against the needs of the military. As [the U.S. Supreme Court] recently
reiterated, ‘judicial deference… is at its apogee when legislative action under the
congressional authority to raise and support armies and make rules and regulations for their
governance is challenged.’" Id., at 447, citing Goldman v. Weinberger, 475 U.S. 503, 508
(1986). There was no American statute that prescribed the "service-connected" standard,
even at the time O’Callahan was decided, the latter decision predicated instead on the Fifth
and Six Amendments in the Bill of Rights. In the Philippine setting, "service-connected" is a
standard duly legislated and enacted by Congress under Rep. Act No. 7055. My views in this
Opinion are thus conformable even to the Solorio decision.

27 Section 1, Rep. Act No. 7055. Emphasis supplied.

28 Concurring Opinion, J. Carpio, infra.

29 See Article 95, Com. Act No. 408, as amended.

30 Id.

31"The words ‘a design, a determination, to kill, distinctly formed in the mind’ in an

instruction, imply deliberation. ‘xxx The word ‘determination in this instruction is not used in
any technical sense; in fact, it has no technical sense in which it means less than it does in
popular signification. Webster defines it to be a ‘decision of a question in the mind; firm
resolution; settled purpose.’ Can it be said that a question can be decided, a wavering
resolution made firm, or a hesitating purpose settled without deliberation?" 12 Words and
Phrases (1954 ed.), p. 478-479; citing State v. Ah Mook, 12 Nev. 369, 390.

32 1 Bouvier’s Law Dictionary (8th ed., 1914), p. 858.

33 G.R. No. L-59603, 29 April 1987, 149 SCRA 305.

34Id. at 316. Justice Vicente Mendoza’s declaration in Iglesia Ni Cristo v. Court of Appeals,
328 Phil. 893 (1996), is worth mentioning. "Indeed, I cannot understand why, after ruling that
the valuation of property in eminent domain is essentially a judicial function which cannot be
vested in administrative agencies, this Court should be willing to leave the valuation of that
priceless commodity — expression, whether by means of motion picture or television — to
administrative agencies with only occasional review by the courts. The trend may be toward
greater delegation of judicial authority to administrative agencies in matters requiring
technical knowledge and as a means of relieving courts of cases which such agencies can
very well attend to. There is no justification, however, for such delegation in the area of our
essential freedoms, particularly freedom of expression, where "only a judicial determination
in an adversary proceeding [can] ensure the necessary sensitivity to freedom of expression."
Id. at 962, J. Mendoza, Separate Opinion.

35This proviso was enacted as an amendment to Com. Act No. 408 by Rep. Act No. 242 in
1948.

36 A Manual for Courts-Martial: Armed Forces of the Philippines, p. 181.

37 See note 27.

38 Record of the Senate, 21 May 1990, p. 840.

39 3 Phil. 58 (1903).

40 Id. at 66.

41 3 Phil.244 (1904).

42 94 Phil. 477 (1954).

43 Id. at 479-480.

44 Supra note 9.

45
G.R. No. 44205, 16 February 1993, 219 SCRA 1.

46 G.R. 95136, 3 October 1991, 202 SCRA 405.

47 Concurring Opinion of Justice Callejo, Sr., infra; citing U.S. v. Weldon, 7 M.J. 938 (1979).

48 Id. citing U.S. v. Taylor, 23 M.J. 341 (1987).

49 "The provisions of both the Civil Code and the Rules of Court regarding the relationship
between the criminal and civil liabilities of an accused do not contemplate administrative
actions against government officers and employees. While there may be specific statutes
making criminal guilt indispensable to the dismissal or any other form of administrative
punishment for certain public employees, and there have been instances when the court
itself did order reinstatement as a consequence of absolute acquittal, as a rule xxx the
administrative determination as to an employee’s dismissal or punishment in any other way
is not predicated in any respect on the result of corresponding criminal proceedings." Rice
and Corn Administration v. Silao, G.R. No. L-25294, 21 August 1980, 99 SCRA 200, 207-
208. "[T]he criminal action is separate and distinct from the administrative case. And, if only
for that reason, so is administrative liability separate and distinct from penal liability. Hence,
probation only affects the criminal aspect of the case, not its administrative
dimension." Samalio v. Court of Appeals, G.R. No. 140079, 31 March 2005, 454 SCRA 462,
475.
 4

.R. No. L-5270 January 15, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
H. N. BULL, defendant-appellant.

Bruce & Lawrence, for appellant.

Office of the Solicitor-General Harvey, for appellee.

ELLIOTT, J.:

The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as
amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court,
where under proper assignments of error he contends: (1) that the complaint does not state facts
sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial court was without
jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is in violation of certain
provisions of the Constitution of the United States, and void as applied to the facts of this case; and
(4) that the evidence is insufficient to support the conviction.

The information alleges:

That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was
then and there master of a steam sailing vessel known as the steamship Standard, which
vessel was then and there engaged in carrying and transporting cattle, carabaos, and other
animals from a foreign port and city of Manila, Philippine Islands; that the said accused H. N.
Bull, while master of said vessel, as aforesaid, on or about the 2d day of December, 1908,
did then and there willfully, unlawfully, and wrongly carry, transport, and bring into the port
and city of Manila, aboard said vessel, from the port of Ampieng, Formosa, six hundred and
seventy-seven (677) head of cattle and carabaos, without providing suitable means for
securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to the
said animals, in this, to wit, that the said H. N. Bull, master, as aforesaid, did then and there
fail to provide stalls for said animals so in transit and suitable means for trying and securing
said animals in a proper manner, and did then and there cause some of said animals to be
tied by means of rings passed through their noses, and allow and permit others to be
transported loose in the hold and on the deck of said vessel without being tied or secured in
stalls, and all without bedding; that by reason of the aforesaid neglect and failure of the
accused to provide suitable means for securing said animals while so in transit, the noses of
some of said animals were cruelly torn, and many of said animals were tossed about upon
the decks and hold of said vessel, and cruelly wounded, bruised, and killed.

All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.

Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle,
sheep, swine, or other animals, from one port in the Philippine Islands to another, or from
any foreign port to any port within the Philippine Islands, shall carry with them, upon the
vessels carrying such animals, sufficient forage and fresh water to provide for the suitable
sustenance of such animals during the ordinary period occupied by the vessel in passage
from the port of shipment to the port of debarkation, and shall cause such animals to be
 provided with adequate forage and fresh water at least once in every twenty-four hours from
the time that the animals are embarked to the time of their final debarkation.

By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof
the following:

The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle,
sheep, swine, or other animals from one port in the Philippine Islands to another, or from any
foreign port to any port within the Philippine Islands, shall provide suitable means for
securing such animals while in transit so as to avoid all cruelty and unnecessary suffering to
the animals, and suitable and proper facilities for loading and unloading cattle or other
animals upon or from vessels upon which they are transported, without cruelty or
unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or from
vessels by swinging them over the side by means of ropes or chains attached to the thorns.

Section 3 of Act No. 55 provides that —

Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully
fails to comply with the provisions of section one, shall, for every such failure, be liable to pay
a penalty of not less that one hundred dollars nor more that five hundred dollars, United
States money, for each offense. Prosecution under this Act may be instituted in any Court of
First Instance or any provost court organized in the province or port in which such animals
are disembarked.

1. It is contended that the information is insufficient because it does not state that the court was
sitting at a port where the cattle were disembarked, or that the offense was committed on board a
vessel registered and licensed under the laws of the Philippine Islands.

Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any
provost court organized in the province or port in which such animals are disembarked, and there is
nothing inconsistent therewith in Act No. 136, which provides generally for the organization of the
courts of the Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts
over certain offenses committed on the high seas, or beyond the jurisdiction of any country, or within
any of the waters of the Philippine Islands on board a ship or water craft of any kind registered or
licensed in the Philippine Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep.,
614.) This jurisdiction may be exercised by the Court of First Instance in any province into which
such ship or water upon which the offense or crime was committed shall come after the commission
thereof. Had this offense been committed upon a ship carrying a Philippine registry, there could have
been no doubt of the Jurisdiction of the court, because it is expressly conferred, and the Act is in
accordance with well recognized and established public law. But the Standard was a Norwegian
vessel, and it is conceded that it was not registered or licensed in the Philippine Islands under the
laws thereof. We have then the question whether the court had jurisdiction over an offense of this
character, committed on board a foreign ship by the master thereof, when the neglect and omission
which constitutes the offense continued during the time the ship was within the territorial waters of
the United States. No court of the Philippine Islands had jurisdiction over an offenses or crime
committed on the high seas or within the territorial waters of any other country, but when she came
within 3 miles of a line drawn from the headlines which embrace the entrance to Manila Bay, she
was within territorial waters, and a new set of principles became applicable. (Wheaton, Int. Law
(Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour, La Mer Ter., ch. 1.) The
ship and her crew were then subject to the jurisdiction of the territorial sovereign subject through the
proper political agency. This offense was committed within territorial waters. From the line which
determines these waters the Standard must have traveled at least 25 miles before she came to
anchor. During that part of her voyage the violation of the statue continued, and as far as the
jurisdiction of the court is concerned, it is immaterial that the same conditions may have existed
while the vessel was on the high seas. The offense, assuming that it originated at the port of
departure in Formosa, was a continuing one, and every element necessary to constitute it existed
during the voyage across the territorial waters. The completed forbidden act was done within
American waters, and the court therefore had jurisdiction over the subject-matter of the offense and
the person of the offender.

The offense then was thus committed within the territorial jurisdiction of the court, but the objection
to the jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the
nationality of the ship. Every. Every state has complete control and jurisdiction over its territorial
waters. According to strict legal right, even public vessels may not enter the ports of a friendly power
without permission, but it is now conceded that in the absence of a prohibition such ports are
considered as open to the public ship of all friendly powers. The exemption of such vessels from
local jurisdiction while within such waters was not established until within comparatively recent times.
In 1794, Attorney-General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the
effect that "the laws of nations invest the commander of a foreign ship of war with no exemption from
the jurisdiction of the country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory
was also supported by Lord Stowell in an opinion given by him to the British Government as late as
1820. In the leading case of the Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144),
Chief Justice Marshall said that the implied license under which such vessels enter a friendly port
may reasonably be construed as "containing exemption from the jurisdiction of the sovereign within
whose territory she claims the rights of hospitality." The principle was accepted by the Geneva
Arbitration Tribunal, which announced that "the priviledge of exterritoriality accorded to vessels of
war has been admitted in the law of nations; not as an absolute right, but solely as a proceeding
founded on the principle of courtesy and mutual deference between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256;
Ortolan, Dip de la Mer, 2. C.X.)

Such vessels are therefore permitted during times of peace to come and go freely. Local official
exercise but little control over their actions, and offenses committed by their crew are justiciable by
their own officers acting under the laws to which they primarily owe allegiance. This limitation upon
the general principle of territorial sovereignty is based entirely upon comity and convenience, and
finds its justification in the fact that experience shows that such vessels are generally careful to
respect local laws and regulation which are essential to the health, order, and well-being of the port.
But comity and convenience does not require the extension of the same degree of exemption to
merchant vessels. There are two well-defined theories as to extent of the immunities ordinarily
granted to them, According to the French theory and practice, matters happening on board a
merchant ship which do not concern the tranquillity of the port or persons foreign to the crew, are
justiciable only by the court of the country to which the vessel belongs. The French courts therefore
claim exclusive jurisdiction over crimes committed on board French merchant vessels in foreign
ports by one member of the crew against another. (See Bonfils, Le Droit Int. (quat. ed.), secs. 624-
628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip. de la Mer, tit. 1, p. 292; Masse, Droit
Int., tome 2, p. 63.) Such jurisdiction has never been admitted or claim by Great Britain as a right,
although she has frequently conceded it by treaties. (Halleck, Int. Law (Baker's ed.), vol. 1, 231;
British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a fact instead of a theory
have sought to restrict local jurisdiction, but Hall, who is doubtless the leading English authority, says
that —

It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels

that so soon as the latter enter the ports of a foreign state they become subject to the local
jurisdiction on all points in which the interests of the country are touched. (Hall, Int. Law, p.
263.)
The United States has adhered consistently to the view that when a merchant vessel enters a
foreign port it is subject to the jurisdiction of the local authorities, unless the local sovereignty has by
act of acquiescence or through treaty arrangements consented to waive a portion of such
jurisdiction. (15 Op. Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by Dean
Gregory, Mich. Law Review, Vol. II, No. 5.) Chief Justice Marshall, in the case of the Exchange, said
that —

When merchant vessels enter for the purpose of trade, in would be obviously in convinient
and dangerous to society and would subject the laws to continual infraction and the
government to degradation if such individual merchants did not owe temporary and local
allegiance, and were not amendable to the jurisdiction of the country.

The Supreme Court of the United States has recently said that the merchant vessels of one country
visiting the ports of another for the purpose of trade, subject themselves to the laws which govern
the ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise
provided by treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)

Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of
commerce and navigation between Sweden and Norway and the United States, of July 4, 1827,
which concedes to the consul, vice-consuls, or consular agents of each country "The right to sit as
judges and arbitrators in such differences as may arise between the captains and crews of the
vessels belonging to the nation whose interests are committed to their charge, without the
interference of the local authorities, unless the conduct of the crews or of the captains should disturb
the order or tranquillity of the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception
applies to controversies between the members of the ship's company, and particularly to disputes
regarding wages. (2 Moore, Int. Law Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The
order and tranquillity of the country are affected by many events which do not amount to a riot or
general public disturbance. Thus an assault by one member of the crew upon another, committed
upon the ship, of which the public may have no knowledge whatever, is not by this treaty withdrawn
from the cognizance of the local authorities.

In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the
vessel in the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the
United States district attorney was instructed by the Government to take the necessary steps to have
the proceedings dismissed, and the aid of the governor of Texas was invoked with the view to "guard
against a repetition of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and
Norwegian charged, May 16, 1876; Moore, Int. Law Dig.) It does not appear that this "quarrel" was of
such a nature as to amount to a breach of the criminal laws of Texas, but when in 1879 the mate for
the Norwegian bark Livingston was prosecuted in the courts of Philadelphia County for an assault
and battery committed on board the ship while lying in the port of Philadelphia, it was held that there
was nothing in the treaty which deprived the local courts of jurisdiction.
(Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.) Representations were made through diplomatic
channels to the State Department, and on July 30, 1880, Mr. Evarts, Secretary of State, wrote to
Count Lewenhaupt, the Swedish and Norwegian minister, as follows:

I have the honor to state that I have given the matter careful consideration in connection with
the views and suggestion of your note and the provisions of the thirteenth article of the treaty
of 1827 between the United States and Sweden and Norway. The stipulations contained in
the last clause of that article . . . are those under which it is contended by you that jurisdiction
is conferred on the consular officers, not only in regard to such differences of a civil nature
growing out of the contract of engagement of the seamen, but also as to disposing of
 controversies resulting from personal violence involving offense for which the party may be
held amenable under the local criminal law.

This Government does not view the article in question as susceptible of such broad
interpretation. The jurisdiction conferred upon the consuls is conceived to be limited to their
right to sit as judges or abitrators in such differences as may arise between captains and
crews of the vessels, where such differences do not involve on the part of the captain or
crew a disturbance of the order or tranquillity of the country. When, however, a complaint is
made to a local magistrate, either by the captain or one or more of the crew of the vessel,
involving the disturbance of the order or tranquillity of the country, it is competent for such
magistrate to take cognizance of the matter in furtherance of the local laws, and under such
circumstances in the United States it becomes a public duty which the judge or magistrate is
not at liberty voluntarily to forego. In all such cases it must necessarily be left to the local
judicial authorities whether the procedure shall take place in the United States or in Sweden
to determine if in fact there had been such disturbance of the local order and tranquillity, and
if the complaint is supported by such proof as results in the conviction of the party accused,
to visit upon the offenders such punishment as may be defined against the offense by the
municipal law of the place." (Moore, Int. Law Dig., vol. 2, p. 315.)

The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on
board a merchant vessel by one member of the crew against another which amount to a disturbance
of the order or tranquillity of the country, and a fair and reasonable construction of the language
requires un to hold that any violation of criminal laws disturbs the order or traquillity of the country.
The offense with which the appellant is charged had nothing to so with any difference between the
captain and the crew. It was a violation by the master of the criminal law of the country into whose
port he came. We thus find that neither by reason of the nationality of the vessel, the place of the
commission of the offense, or the prohibitions of any treaty or general principle of public law, are the
court of the Philippine Islands deprived of jurisdiction over the offense charged in the information in
this case.

It is further contended that the complaint is defective because it does not allege that the animals
were disembarked at the port of Manila, an allegation which it is claimed is essential to the
jurisdiction of the court sitting at that port. To hold with the appellant upon this issue would be to
construe the language of the complaint very strictly against the Government. The disembarkation of
the animals is not necessary in order to constitute the completed offense, and a reasonable
construction of the language of the statute confers jurisdiction upon the court sitting at the port into
which the animals are bought. They are then within the territorial jurisdiction of the court, and the
mere fact of their disembarkation is immaterial so far as jurisdiction is concerned. This might be
different if the disembarkation of the animals constituted a constitutional element in the offense, but it
does not.

It is also contended that the information is insufficient because it fails to allege that the
defendant knowingly and willfully failed to provide suitable means for securing said animals while in
transit, so as to avoid cruelty and unnecessary suffering. The allegation of the complaint that the act
was committed willfully includes the allegation that it was committed knowingly. As said in
Woodhouse vs. Rio Grande R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea,
when used in connection with an act forbidden by law, that the act must be done knowingly or
intentionally; that, with knowledge, the will consented to, designed, and directed the act." So in
Wong vs. City of Astoria (13 Oregon, 538), it was said: "The first one is that the complaint did not
show, in the words of the ordinance, that the appellant 'knowingly' did the act complained of. This
point, I think, was fully answered by the respondent's counsel — that the words 'willfully' and
'knowingly' conveyed the same meaning. To 'willfully' do an act implies that it was done by design —
done for a certain purpose; and I think that it would necessarily follow that it was 'knowingly' done."
To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on all fours with the
present case.

The evidence shows not only that the defendant's acts were knowingly done, but his defense rests
upon the assertion that "according to his experience, the system of carrying cattle loose upon the
decks and in the hold is preferable and more secure to the life and comfort of the animals." It was
conclusively proven that what was done was done knowingly and intentionally.

In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary
to state the act or omission complained of as constituting a crime or public offense in ordinary and
concise language, without repitition. It need not necessarily be in the words of the statute, but it must
be in such form as to enable a person of common understanding to know what is intended and the
court to pronounce judgment according to right. A complaint which complies with this requirement is
good. (U.S. vs. Sarabia, 4 Phil. Rep., 556.)

The Act, which is in the English language, impose upon the master of a vessel the duty to "provide
suitable means for securing such animals while in transit, so as to avoid all cruelty and unnecessary
suffering to the animals." The allegation of the complaint as it reads in English is that the defendant
willfully, unlawfully, and wrongfully carried the cattle "without providing suitable means for securing
said animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals in
this . . . that by reason of the aforesaid neglect and failure of the accused to provide suitable means
for securing said animals were cruelty torn, and many of said animals were tossed about upon the
decks and hold of said vessels, and cruelty wounded, bruised, and killed."

The appellant contends that the language of the Spanish text of the information does not charge him
with failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes"
and "medios adecuados." In view of the fact that the original complaint was prepared in English, and
that the word "suitable" is translatable by the words "adecuado," "suficiente," and "conveniente,"
according to the context and circumstances, we determine this point against the appellant,
particularly in view of the fact that the objection was not made in the court below, and that the
evidence clearly shows a failure to provide "suitable means for the protection of the animals."

2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto
seems to rest upon a fundamentally erroneous conception of the constitutional law of these Islands.
The statute penalizes acts and ommissions incidental to the transportation of live stock between
foreign ports and ports of the Philippine Islands, and had a similar statute regulating commerce with
its ports been enacted by the legislature of one of the States of the Union, it would doubtless have
been in violation of Article I, section 3, of the Constitution of the United States. (Stubbs vs. People
(Colo.), 11 L. R. A., N. S., 1071.)

But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The importance of
the question thus presented requires a statement of the principles which govern those relations, and
consideration of the nature and extent of the legislative power of the Philippine Commission and the
Legislature of the Philippines. After much discussion and considerable diversity of opinion certain
applicable constitutional doctrines are established.

The Constitution confers upon the United States the express power to make war and treaties, and it
has the power possessed by all nations to acquire territory by conquest or treaty. Territory thus
acquired belongs to the United States, and to guard against the possibility of the power of Congress
to provide for its government being questioned, the framers of the Constitution provided in express
terms that Congress should have the power "to dispose of and make all needful rules and
regulations respecting territory and other property belonging to the United States." (Art. IV, sec. 3,
par. 3.) Upon the acquisition of the territory by the United States, and until it is formally incorporated
into the Union, the duty of providing a government therefor devolves upon Congress. It may govern
the territory by its direct acts, or it may create a local government, and delegate thereto the ordinary
powers required for local government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual
procedure. Congress has provided such governments for territories which were within the Union,
and for newly acquired territory not yet incorporated therein. It has been customary to organize a
government with the ordinary separation of powers into executive, legislative, and judicial, and to
prescribe in an organic act certain general conditions in accordance with which the local government
should act. The organic act thus became the constitution of the government of the territory which
had not been formally incorporated into the Union, and the validity of legislation enacted by the local
legislature was determined by its conformity with the requirements of such organic act. (National
Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body of the local government Congress
has delegated that portion of legislative power which in its wisdom it deemed necessary for the
government of the territory, reserving, however, the right to annul the action of the local legislature
and itself legislate directly for the territory. This power has been exercised during the entire period of
the history of the United States. The right of Congress to delegate such legislative power can no
longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S., 370,
385.)

The Constitution of the United States does not by its own force operate within such territory,
although the liberality of Congress in legislating the Constitution into contiguous territory tended to
create an impression upon the minds of many people that it went there by its own force.
(Downes vs. Bidwell, 182 U. S., 289.) In legislating with reference to this territory, the power of
Congress is limited only by those prohibitions of the Constitution which go to the very root of its
power to act at all, irrespective of time or place. In all other respects it is plenary. (De
Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S., 244; Hawaii vs. Mankichi, 190 U. S.,
197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S., 516.)

This power has been exercised by Congress throughout the whole history of the United States, and
legislation founded on the theory was enacted long prior to the acquisition of the present Insular
possessions. Section 1891 of the Revised Statutes of 1878 provides that "The Constitution and all
laws of the United States which are not locally inapplicable shall have the same force and effect
within all the organized territories, and in every Territory hereafter organized, as elsewhere within the
United States." When Congress organized a civil government for the Philippines, it expressly
provided that this section of the Revised Statutes should not apply to the Philippine Islands. (Sec. 1,
Act of 1902.)

In providing for the government of the territory which was acquired by the United States as a result
of the war with Spain, the executive and legislative authorities have consistently proceeded in
conformity with the principles above state. The city of Manila was surrendered to the United States
on August 13, 1898, and the military commander was directed to hold the city, bay, and harbor,
pending the conclusion of a peace which should determine the control, disposition, and government
of the Islands. The duty then devolved upon the American authorities to preserve peace and protect
person and property within the occupied territory. Provision therefor was made by proper orders, and
on August 26 General Merritt assumed the duties of military governor. The treaty of peace was
signed December 10, 1898. On the 22d of December, 1898, the President announced that the
destruction of the Spanish fleet and the surrender of the city had practically effected the conquest of
the Philippine Islands and the suspension of the Spanish sovereignty therein, and that by the treaty
of peace the future control, disposition, and government of the Islands had been ceded to the United
States. During the periods of strict military occupation, before the treaty of peace was ratified, and
the interim thereafter, until Congress acted (Santiago vs. Noueral, 214 U.S., 260), the territory was
governed under the military authority of the President as commander in chief. Long before Congress
took any action, the President organized a civil government which, however, had its legal
justification, like the purely military government which it gradually superseded, in the war power. The
military power of the President embraced legislative, executive personally, or through such military
or civil agents as he chose to select. As stated by Secretary Root in his report for 1901 —

The military power in exercise in a territory under military occupation includes executive,
legislative, and judicial authority. It not infrequently happens that in a single order of a military
commander can be found the exercise of all three of these different powers — the exercise
of the legislative powers by provisions prescribing a rule of action; of judicial power by
determination of right; and the executive power by the enforcement of the rules prescribed
and the rights determined.

President McKinley desired to transform military into civil government as rapidly as conditions would
permit. After full investigation, the organization of civil government was initiated by the appointment
of a commission to which civil authority was to be gradually transferred. On September 1, 1900, the
authority to exercise, subject to the approval of the President. "that part of the military power of the
President in the Philippine Islands which is legislative in its character" was transferred from the
military government to the Commission, to be exercised under such rules and regulations as should
be prescribed by the Secretary of War, until such time as complete civil government should be
established, or congress otherwise provided. The legislative power thus conferred upon the
Commission was declared to include "the making of rules and orders having the effect of law for the
raising of revenue by taxes, customs duties, and imposts; the appropriation and expenditure of
public funds of the Islands; the establishment of an educational system to secure an efficient civil
service; the organization and establishment of courts; the organization and establishment of
municipal and departmental government, and all other matters of a civil nature which the military
governor is now competent to provide by rules or orders of a legislative character." This grant of
legislative power to the Commission was to be exercised in conformity with certain declared general
principles, and subject to certain specific restrictions for the protection of individual rights. The
Commission were to bear in mind that the government to be instituted was "not for our satisfaction or
for the expression of our theoretical views, but for the happiness, peace, and prosperity of the
people of the Philippine Island, and the measures adopted should be made to conforms to their
customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government." The specific
restrictions upon legislative power were found in the declarations that "no person shall be deprived
of life, liberty, or property without due process of law; that private property shall not be taken for
public use without just compensation; that in all criminal prosecutions the accused shall enjoy the
right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be
confronted with the witnesses against him, to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsel for his defense; that excessive bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishment inflicted; that no person
shall be put twice in jeopardy for the same offense or be compelled in any criminal case to be a
witness against himself; that the right to be secure against unreasonable searches and seizures
shall not be violated; that neither slavery nor involuntary servitude shall exist except as a punishment
for crime; that no bill of attainder or ex post facto law shall be passed; that no law shall be passed
abridging the freedom of speech or of the press or of the rights of the people to peaceably assemble
and petition the Government for a redress of grievances; that no law shall be made respecting an
establishment of religion or prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or preference shall forever be
allowed."

To prevent any question as to the legality of these proceedings being raised, the Spooner
amendment to the Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and
judicial powers necessary to govern the Philippine Islands . . . shall until otherwise provided by
Congress be vested in such person and persons, and shall be exercised in such manner, as the
President of the United States shall direct, for the establishment of civil government, and for
maintaining and protecting the inhabitants of said Islands in the free enjoyment of their liberty,
property, and religion." Thereafter, on July 4, 1901, the authority, which had been exercised
previously by the military governor, was transferred to that official. The government thus created by
virtue of the authority of the President as Commander in Chief of the Army and Navy continued to
administer the affairs of the Islands under the direction of the President until by the Act of July 1,
1902, Congress assumed control of the situation by the enactment of a law which, in connection with
the instructions of April 7, 1900, constitutes the organic law of the Philippine Islands.

The Act of July 1, 1902, made no substancial changes in the form of government which the
President had erected. Congress adopted the system which was in operation, and approved the
action of the President in organizing the government. Substantially all the limitations which had been
imposed on the legislative power by the President's instructions were included in the law, Congress
thus extending to the Islands by legislative act nor the Constitution, but all its provisions for the
protection of the rights and privileges of individuals which were appropriate under the conditions.
The action of the President in creating the Commission with designated powers of government, in
creating the office of the Governor-General and Vice-Governor-General, and through the
Commission establishing certain executive departments, was expressly approved and ratified.
Subsequently the action of the President in imposing a tariff before and after the ratification of the
treaty of peace was also ratified and approved by Congress. (Act of March 8, 1902; Act of July 1,
1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise provided by
law the Islands were to continue to be governed "as thereby and herein provided." In the future the
enacting clause of all statutes should read "By authority of the United States" instead of "By the
authority of the President." In the course of time the legislative authority of the Commission in all
parts of the Islands not inhabited by Moros or non-Christian tribes was to be transferred to a
legislature consisting of two houses — the Philippine Commission and the Philippine Assembly. The
government of the Islands was thus assumed by Congress under its power to govern newly acquired
territory not incorporated into the United States.

This Government of the Philippine Islands is not a State or a Territory, although its form and
organization somewhat resembles that of both. It stands outside of the constitutional relation which
unites the States and Territories into the Union. The authority for its creation and maintenance is
derived from the Constitution of the United States, which, however, operates on the President and
Congress, and not directly on the Philippine Government. It is the creation of the United States,
acting through the President and Congress, both deriving power from the same source, but from
different parts thereof. For its powers and the limitations thereon the Government of the Philippines
looked to the orders of the President before Congress acted and the Acts of Congress after it
assumed control. Its organic laws are derived from the formally and legally expressed will of the
President and Congress, instead of the popular sovereign constituency which lies upon any subject
relating to the Philippines is primarily in Congress, and when it exercise such power its act is from
the viewpoint of the Philippines the legal equivalent of an amendment of a constitution in the United
States.

Within the limits of its authority the Government of the Philippines is a complete governmental
organism with executive, legislative, and judicial departments exercising the functions commonly
assigned to such departments. The separation of powers is as complete as in most governments. In
neither Federal nor State governments is this separation such as is implied in the abstract statement
of the doctrine. For instance, in the Federal Government the Senate exercises executive powers,
and the President to some extent controls legislation through the veto power. In a State the veto
power enables him to exercise much control over legislation. The Governor-General, the head of the
executive department in the Philippine Government, is a member of the Philippine Commission, but
as executive he has no veto power. The President and Congress framed the government on the
model with which Americans are familiar, and which has proven best adapted for the advancement
of the public interests and the protection of individual rights and priviliges.

In instituting this form of government of intention must have been to adopt the general constitutional
doctrined which are inherent in the system. Hence, under it the Legislature must enact laws subject
to the limitations of the organic laws, as Congress must act under the national Constitution, and the
States under the national and state constitutions. The executive must execute such laws as are
constitutionally enacted. The judiciary, as in all governments operating under written constitutions,
must determine the validity of legislative enactments, as well as the legality of all private and official
acts. In performing these functions it acts with the same independence as the Federal and State
judiciaries in the United States. Under no other constitutional theory could there be that government
of laws and not of men which is essential for the protection of rights under a free and orderly
government.

Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that
the courts must consider the question of the validity of an act of the Philippine Commission or the
Philippine Legislature, as a State court considers an act of the State legislature. The Federal
Government exercises such powers only as are expressly or impliedly granted to it by the
Constitution of the United States, while the States exercise all powers which have not been granted
to the central government. The former operates under grants, the latter subject to restrictions. The
validity of an Act of Congress depends upon whether the Constitution of the United States contains a
grant of express or implied authority to enact it. An act of a State legislature is valid unless the
Federal or State constitution expressly or impliedly prohibits its enaction. An Act of the legislative
authority of the Philippines Government which has not been expressly disapproved by Congress is
valid unless its subject-matter has been covered by congressional legislation, or its enactment
forbidden by some provision of the organic laws.

The legislative power of the Government of the Philippines is granted in general terms subject to
specific limitations. The general grant is not alone of power to legislate on certain subjects, but to
exercise the legislative power subject to the restrictions stated. It is true that specific authority is
conferred upon the Philippine Government relative to certain subjects of legislation, and that
Congress has itself legislated upon certain other subjects. These, however, should be viewed simply
as enactments on matters wherein Congress was fully informed and ready to act, and not as
implying any restriction upon the local legislative authority in other matters. (See Opinion of Atty.
Gen. of U. S., April 16, 1908.)

The fact that Congress reserved the power to annul specific acts of legislation by the Government of
the Philippine tends strongly to confirm the view that for purposes of construction the Government of
the Philippines should be regarded as one of general instead of enumerated legislative powers. The
situation was unusual. The new government was to operate far from the source of its authority. To
relieve Congress from the necessity of legislating with reference to details, it was thought better to
grant general legislative power to the new government, subject to broad and easily understood
prohibitions, and reserve to Congress the power to annul its acts if they met with disapproval. It was
therefore provided "that all laws passed by the Government of the Philippine Islands shall be
reported to Congress, which hereby reserves the power and authority to annul the same." (Act of
Congress, July 1, 1902, sec. 86.) This provision does not suspend the acts of the Legislature of the
Philippines until approved by Congress, or when approved, expressly or by acquiescence, make
them the laws of Congress. They are valid acts of the Government of the Philippine Islands until
annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.)

In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has
been expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the
United States operated only upon the States of the Union. It has no application to the Government of
the Philippine Islands. The power to regulate foreign commerce is vested in Congress, and by virtue
of its power to govern the territory belonging to the United States, it may regulate foreign commerce
with such territory. It may do this directly, or indirectly through a legislative body created by it, to
which its power in this respect if delegate. Congress has by direct legislation determined the duties
which shall be paid upon goods imported into the Philippines, and it has expressly authorized the
Government of the Philippines to provide for the needs of commerce by improving harbors and
navigable waters. A few other specific provisions relating to foreign commerce may be found in the
Acts of Congress, but its general regulation is left to the Government of the Philippines, subject to
the reserved power of Congress to annul such legislation as does not meet with its approval. The
express limitations upon the power of the Commission and Legislature to legislate do not affect the
authority with respect to the regulation of commerce with foreign countries. Act No. 55 was enacted
before Congress took over the control of the Islands, and this act was amended by Act No. 275 after
the Spooner amendment of March 2, 1901, was passed. The military government, and the civil
government instituted by the President, had the power, whether it be called legislative or
administrative, to regulate commerce between foreign nations and the ports of the territory.
(Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73, 87.) This Act
has remained in force since its enactment without annulment or other action by Congress, and must
be presumed to have met with its approval. We are therefore satisfied that the Commission had, and
the Legislature now has, full constitutional power to enact laws for the regulation of commerce
between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended
by Act No. 275, is valid.

3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be
left to the judgment of the master of the ship. It is a question which must be determined by the court
from the evidence. On December 2, 1908, the defendant Bull brought into and disembarked in the
port and city of Manila certain cattle, which came from the port of Ampieng, Formosa, without
providing suitable means for securing said animals while in transit, so as to avoid cruelty and
unnecessary suffering to said animals, contrary to the provisions of section 1 of Act No. 55, as
amended by section 1 of Act No. 275. The trial court found the following facts, all of which are fully
sustained by the evidence:

That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as
the Standard, for a period of six months or thereabouts prior to the 2d day of December,
1908, was engaged in the transportation of cattle and carabaos from Chines and Japanese
ports to and into the city of Manila, Philippine Islands.

That on the 2d day of December, 1908, the defendant, as such master and captain as
aforesaid, brought into the city of Manila, aboard said ship, a large number of cattle, which
ship was anchored, under the directions of the said defendant, behind the breakwaters in
front of the city of Manila, in Manila Bay, and within the jurisdiction of this court; and that
fifteen of said cattle then and there had broken legs and three others of said cattle were
dead, having broken legs; and also that said cattle were transported and carried upon said
ship as aforesaid by the defendant, upon the deck and in the hold of said ship, without
suitable precaution and care for the transportation of said animals, and to avoid danger and
risk to their lives and security; and further that said cattle were so transported abroad said
ship by the defendant and brought into the said bay, and into the city of Manila, without any
provisions being made whatever upon said decks of said ship and in the hold thereof to
maintain said cattle in a suitable condition and position for such transportation.

That a suitable and practicable manner in which to transport cattle abroad steamship coming
into Manila Bay and unloading in the city of Manila is by way of individual stalls for such
cattle, providing partitions between the cattle and supports at the front sides, and rear
 thereof, and cross-cleats upon the floor on which they stand and are transported, of that in
case of storms, which are common in this community at sea, such cattle may be able to
stand without slipping and pitching and falling, individually or collectively, and to avoid the
production of panics and hazard to the animals on account or cattle were transported in this
case. Captain Summerville of the steamship Taming, a very intelligent and experienced
seaman, has testified, as a witness in behalf of the Government, and stated positively that
since the introduction in the ships with which he is acquainted of the stall system for the
transportation of animals and cattle he has suffered no loss whatever during the last year.
The defendant has testified, as a witness in his own behalf, that according to his experience
the system of carrying cattle loose upon the decks and in the hold is preferable and more
secure to the life and comfort of the animals, but this theory of the case is not maintainable,
either by the proofs or common reason. It can not be urged with logic that, for instance, three
hundred cattle supports for the feet and without stalls or any other protection for them
individually can safely and suitably carried in times of storm upon the decks and in the holds
of ships; such a theory is against the law of nature. One animal falling or pitching, if he is
untied or unprotected, might produce a serious panic and the wounding of half the animals
upon the ship if transported in the manner found in this case.

The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with
subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is
affirmed. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.

 5

G.R. No. L-18924 October 19, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant,

vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.

Attorney-General Villa-Real for appellant.

Eduardo Gutierrez Repide for appellee.

ROMUALDEZ, J.:

In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of
Manila, sustaining the demurrer presented by the defendant to the information that initiated this case
and in which the appellee is accused of having illegally smoked opium, aboard the merchant
vessel Changsa of English nationality while said vessel was anchored in Manila Bay two and a half
miles from the shores of the city.

The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed
the case.

The question that presents itself for our consideration is whether such ruling is erroneous or not; and
it will or will not be erroneous according as said court has or has no jurisdiction over said offense.

The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one
herein involved, committed aboard merchant vessels anchored in our jurisdiction waters. 1aw ph!l.net

There are two fundamental rules on this particular matter in connection with International Law; to wit,
the French rule, according to which crimes committed aboard a foreign merchant vessels should not
be prosecuted in the courts of the country within whose territorial jurisdiction they were committed,
unless their commission affects the peace and security of the territory; and the English rule, based
on the territorial principle and followed in the United States, according to which, crimes perpetrated
under such circumstances are in general triable in the courts of the country within territory they were
committed. Of this two rules, it is the last one that obtains in this jurisdiction, because at present the
theories and jurisprudence prevailing in the United States on this matter are authority in the
Philippines which is now a territory of the United States.

In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief
Justice Marshall said:

. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual infraction,
and the government to degradation, if such individuals or merchants did not owe temporary
and local allegiance, and were not amenable to the jurisdiction of the country. . . .

In United States vs. Bull (15 Phil., 7), this court held:

. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on
the high seas or within the territorial waters of any other country, but when she came within
three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay,
 she was within territorial waters, and a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.;
Latour, La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the
territorial sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .

It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper
of the Common Jail (120 U.., 1), wherein it was said that:

. . . The principle which governs the whole matter is this: Disorder which disturb only the
peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the
home of the ship, but those which disturb the public peace may be suppressed, and, if need
be, the offenders punished by the proper authorities of the local jurisdiction. It may not be
easy at all times to determine which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending circumstances of the particular
case, but all must concede that felonious homicide is a subject for the local jurisdiction, and
that if the proper authorities are proceeding with the case in the regular way the consul has
no right to interfere to prevent it.

Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:

Although the mere possession of an article of prohibited use in the Philippine Islands, aboard
a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime
triable by the courts of the Islands, such vessels being considered as an extension of its own
nationality, the same rule does not apply when the article, the use of which is prohibited in
the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation
of the laws of the land is committed with respect to which, as it is a violation of the penal law
in force at the place of the commission of the crime, no court other than that established in
the said place has jurisdiction of the offense, in the absence of an agreement under an
international treaty.

As to whether the United States has ever consented by treaty or otherwise to renouncing such
jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which
nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties,
Conventions, etc.," volume 1, page 625, Malloy says the following:

There shall be between the territories of the United States of America, and all the territories
of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the
two countries, respectively, shall have liberty freely and securely to come with their ships and
cargoes to all such places, ports and rivers, in the territories aforesaid, to which other
foreigners are permitted to come, to enter into the same, and to remain and reside in any
parts of the said territories, respectively; also to hire and occupy houses and warehouses for
the purposes of their commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their commerce, but
subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce
and Navigation Convention.)

We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this
court not triable by or courts, because it being the primary object of our Opium Law to protect the
inhabitants of the Philippines against the disastrous effects entailed by the use of this drug, its mere
possession in such a ship, without being used in our territory, does not being about in the said
territory those effects that our statute contemplates avoiding. Hence such a mere possession is not
considered a disturbance of the public order.

But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is
certainly a breach of the public order here established, because it causes such drug to produce its
pernicious effects within our territory. It seriously contravenes the purpose that our Legislature has in
mind in enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes:

. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the
port of Manila in open defiance of the local authorities, who are impotent to lay hands on him,
is simply subversive of public order. It requires no unusual stretch of the imagination to
conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese
residents to smoke opium on board.

The order appealed from is revoked and the cause ordered remanded to the court of origin for
further proceedings in accordance with law, without special findings as to costs. So ordered.

Araullo, C.J., Street, Malcolm, Avanceña, Villamor, Ostrand and Johns, JJ., concur.
 6

G.R. No. L-5887 December 16, 1910

THE UNITED STATES, plaintiff-appellee,

vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.

Thos. D. Aitken for appellant.

Attorney-General Villamor for appellee.

ARELLANO, C. J.:

The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he
"carried, kept, possessed and had in his possession and control, 96 kilogrammes of opium," and that
"he had been surprised in the act of selling 1,000 pesos worth prepared opium."

The defense presented a demurrer based on two grounds, the second of which was the more than
one crime was charged in the complaint. The demurrer was sustained, as the court found that the
complaint contained two charges, one, for the unlawful possession of opium, and the other, for the
unlawful sale of opium, and, consequence of that ruling, it ordered that the fiscal should separated
one charge from the other and file a complaint for each violation; this, the fiscal did, and this cause
concerns only the unlawful possession of opium. It is registered as No. 375, in the Court of First
Instance of Cebu, and as No. 5887 on the general docket of this court.

The facts of the case are contained in the following finding of the trial court:

The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month
(stated as August 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief
of the department of the port of Cebu and internal-revenue agent of Cebu, respectively, went
abroad the steamship Erroll to inspect and search its cargo, and found, first in a cabin near
the saloon, one sack (Exhibit A) and afterwards in the hold, another sack (Exhibit B). The
sack referred to as Exhibit A contained 49 cans of opium, and the other, Exhibit B, the larger
sack, also contained several cans of the same substance. The hold, in which the sack
mentioned in Exhibit B was found, was under the defendant's control, who moreover, freely
and of his own will and accord admitted that this sack, as well as the other referred to in
Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and
voluntarily, that he had bought these sacks of opium, in Hongkong with the intention of
selling them as contraband in Mexico or Vera Cruz, and that, as his hold had already been
searched several times for opium, he ordered two other Chinamen to keep the sack. Exhibit
A.

It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly
constitute the corpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was
the subject matter of investigation at the trial, and with respect to which the chief of the department
of the port of Cebu testified that they were found in the part of the ship where the firemen habitually
sleep, and that they were delivered to the first officer of the ship to be returned to the said firemen
after the vessel should have left the Philippines, because the firemen and crew of foreign vessels,
pursuant to the instructions he had from the Manila custom-house, were permitted to retain certain
amounts of opium, always provided it should not be taken shore.

And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as
evidence in this cause. With regard to this the internal-revenue agent testified as follows:
itc-alf

FISCAL. What is it?

WITNESS. It is a can opium which was bought from the defendant by a secret-service agent
and taken to the office of the governor to prove that the accused had opium in his
possession to sell.

On motion by the defense, the court ruled that this answer might be stricken out "because it refers to
a sale." But, with respect to this answer, the chief of the department of customs had already given
this testimony, to wit:

FISCAL. Who asked you to search the vessel?

WITNESS. The internal-revenue agent came to my office and said that a party brought him a
sample of opium and that the same party knew that there was more opium on board the
steamer, and the agent asked that the vessel be searched.

The defense moved that this testimony be rejected, on the ground of its being hearsay evidence,
and the court only ordered that the part thereof "that there was more opium, on board the vessel" be
stricken out.

The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B,
and C, contained opium and were found on board the steamship Erroll, a vessel of English
nationality, and that it was true that the defendant stated that these sacks of opium were his and that
he had them in his possession.

According to the testimony of the internal-revenue agent, the defendant stated to him, in the
presence of the provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because
the defendant spoke English), the warden of the jail, and four guards, that the opium seized in the
vessel had been bought by him in Hongkong, at three pesos for each round can and five pesos for
each one of the others, for the purpose of selling it, as contraband, in Mexico and Puerto de Vera
Cruz; that on the 15th the vessel arrived at Cebu, and on the same day he sold opium; that he had
tried to sell opium for P16 a can; that he had a contract to sell an amount of the value of about P500;
that the opium found in the room of the other two Chinamen prosecuted in another cause, was his,
and that he had left it in their stateroom to avoid its being found in his room, which had already been
searched many times; and that, according to the defendant, the contents of the large sack was 80
cans of opium, and of the small one, 49, and the total number, 129.

It was established that the steamship Erroll was of English nationality, that it came from Hongkong,
and that it was bound for Mexico, via the call ports of Manila and Cebu.

The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to
try the same and the facts concerned therein did not constitute a crime. The fiscal, at the conclusion
of his argument, asked that the maximum penalty of the law be imposed upon the defendant, in view
of the considerable amount of opium seized. The court ruled that it did not lack jurisdiction, inasmuch
as the crime had been committed within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with
additional subsidiary imprisonment in case of insolvency, though not to exceed one third of the
principal penalty, and to the payment of the costs. It further ordered the confiscation, in favor of the
Insular Government, of the exhibits presented in the case, and that, in the event of an appeal being
taken or a bond given, or when the sentenced should have been served, the defendant be not
released from custody, but turned over to the customs authorities for the purpose of the fulfillment of
the existing laws on immigration.

From this judgment, the defendant appealed to this court. lawphi1.net

The appeal having been heard, together with the allegations made therein by the parties, it is found:
That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign
vessel in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the
courts of this country, on account of such vessel being considered as an extension of its own
nationality, the same rule does not apply when the article, whose use is prohibited within the
Philippine Islands, in the present case a can of opium, is landed from the vessel upon Philippine soil,
thus committing an open violation of the laws of the land, with respect to which, as it is a violation of
the penal law in force at the place of the commission of the crime, only the court established in that
said place itself had competent jurisdiction, in the absence of an agreement under an international
treaty.

It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the
present case, was considerable, it does not appear that, on such account, the two penalties fixed by
the law on the subject, should be imposed in the maximum degree.

Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively,
we affirm in all other respects the judgment appealed from, with the costs of this instance against the
appellant. So ordered.

Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.

 7

G.R. No. L-13005 October 10, 1917

THE UNITED STATES, plaintiff-appellee,

vs.
AH SING, defendant-appellant.

Antonio Sanz for appellant.

Acting Attorney-General Paredes for appellee.

MALCOLM, J.:

This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty
of a violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years
imprisonment, to pay a fine of P300 or to suffer subsidiary imprisonment in case of insolvency, and
to pay the costs.

The following facts are fully proven: The defendant is a subject of China employed as a fireman on
the steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu
on April 25, 1917, after a voyage direct from the port of Saigon. The defendant bought eight cans of
opium in Saigon, brought them on board the steamship Shun Chang, and had them in his
possession during the trip from Saigon to Cebu. When the steamer anchored in the port of Cebu on
April 25, 1917, the authorities on making a search found the eight cans of opium above mentioned
hidden in the ashes below the boiler of the steamer's engine. The defendant confessed that he was
the owner of this opium, and that he had purchased it in Saigon. He did not confess, however, as to
his purpose in buying the opium. He did not say that it was his intention to import the prohibited drug
into the Philippine Islands. No other evidence direct or indirect, to show that the intention of the
accused was to import illegally this opium into the Philippine Islands, was introduced.

Has the crime of illegal importation of opium into the Philippine Islands been proven?

Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that
there exists inconsistently between the doctrines laid down in the two cases. However, neither
decision is directly a precedent on the facts before us.

In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by
the Chief Justice, it is found —

That, although the mere possession of a thing of prohibited use in these Islands, aboard a
foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime
triable by the courts of this country, on account of such vessel being considered as an
extension of its own nationality, the same rule does no apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium, is landed from
the vessel upon Philippine soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the place of the commission of
the crime, only the court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty. 1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the present instance
is readily observable. In the Look Chaw case, the charge case the illegal possession and sale of
opium — in the present case the charge as illegal importation of opium; in the Look Chaw case the
foreign vessel was in transit — in the present case the foreign vessel was not in transit; in the Look
Chaw case the opium was landed from the vessel upon Philippine soil — in the present case of
United States vs. Jose ([1916], 34 Phil., 840), the main point, and the one on which resolution
turned, was that in a prosecution based on the illegal importation of opium or other prohibited drug,
the Government must prove, or offer evidence sufficient to raise a presumption, that the vessel from
which the drug is discharged came into Philippine waters from a foreign country with the drug on
board. In the Jose case, the defendants were acquitted because it was not proved that the opium
was imported from a foreign country; in the present case there is no question but what the opium
came from Saigon to Cebu. However, in the opinion in the Jose case, we find the following which
may be obiter dicta, but which at least is interesting as showing the view of the writer of the opinion:

The importation was complete, to say the least, when the ship carrying it anchored in Subic
Bay. It was not necessary that the opium discharged or that it be taken from the ship. It was
sufficient that the opium was brought into the waters of the Philippine Islands on a boat
destined for a Philippine port and which subsequently anchored in a port of the Philippine
Islands with intent to discharge its cargo.

Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an
examination of the applicable provisions of the law. It is to be noted that section 4 of Act No. 2381
begins, "Any person who shall unlawfully import or bring any prohibited drug into the Philippine
Islands." "Import" and "bring" are synonymous terms. The Federal Courts of the United States have
held that the mere act of going into a port, without breaking bulk, is prima facie evidence of
importation. (The Mary [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the making
entry of goods at the custom house, but merely the bringing them into port; and the importation is
complete before entry of the Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028;
Perots vs. U. S., 19 Fed. Cas., 258.) As applied to the Opium Law, we expressly hold that any
person unlawfully imports or brings any prohibited drug into the Philippine Islands, when the
prohibited drug is found under this person's control on a vessel which has come direct from a foreign
country and is within the jurisdictional limits of the Philippine Islands. In such case, a person is guilty
of illegal importation of the drug unless contrary circumstances exist or the defense proves
otherwise. Applied to the facts herein, it would be absurb to think that the accused was merely
carrying opium back and forth between Saigon and Cebu for the mere pleasure of so doing. It would
likewise be impossible to conceive that the accused needed so large an amount of opium for his
personal use. No better explanation being possible, the logical deduction is that the defendant
intended this opium to be brought into the Philippine Islands. We accordingly find that there was
illegal importation of opium from a foreign country into the Philippine Islands. To anticipate any
possible misunderstanding, let it be said that these statements do not relate to foreign vessels in
transit, a situation not present.

The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and
the sentence of the trial court being within the limits provided by law, it results that the judgment
must be affirmed with the costs of this instance against the appellant. So ordered.