EN BANC
G.R. No. L-36188-37586 February 29, 1980
ROQUE GUMAUA, petitioner,
vs.
MAJOR GENERAL ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines and MILITARY COMMISSION NO. 2, respondents; ROQUE GUMAUA and RODRIGO HALASAN, petitioners, vs. BRIG. GEN. RAFAEL ZAGALA, in his capacity as Military Commander of Fort Bonifacio GEN. ROMEO ESPINO, in his capacity as Chief of Staff of the Armed Forces of the Philippines; HON. JUAN PONCE ENRILE, in his capacity as Secretary of National Defense and MILITARY COMMISSION NO. 2, respondents.
Separate Opinions
FERNANDO, C.J., concurring:
The lucid and comprehensive opinion of the Court, penned by Justice Makasiar, reaches a result with which I am in full agreement. The compulsion exerted by the cases relied upon does not warrant any other conclusion. Nonetheless, I feel the need for a reiteration of my views in those previous decisions where I could not fully subscribe to the reasoning that the Court found persuasive.
1. First as to Javellana v. The Executive Secretary. 1 It is to be admitted that the vote for the ratification of the 1973 Constitution was overwhelming. Nonetheless, I felt I had to dissent. It was my view that the procedure followed failed to conform with certain provisions of the 1935 Constitution. 'there was, however, this qualification: "If the origins of the democratic polity enshrined in the 1935 Constitution with the declaration that the Philippines is a republican state could be traced back to Athens and to Rome, it is no doubt true, as McIver pointed out., that only with the recognition of the nation as the separate political unit in public law was there a juridical recognition of the people composing it 'as the source of political authority.' From them, as Corwin did stress, emanate 'the highest possible embodiment of human will,' which is supreme and must be obeyed. To avoid any confusion and in the interest of clarity, it should be expressed in the manner ordained by law. Even if such were not the case, however, once it is manifested, it is to be accepted as final and authoritative. The government which is merely an agency to register its commands has no choice but to submit. Its officials must act accordingly. No agency is exempt from such a duty, not even this Court. In that sense the lack of regularity in the method employed to register its wishes is not fatal in its consequences. Once the fact of acceptance by the people of a new fundamental law is made evident, the judiciary is left with no choice But to accord its recognition. The obligation to render its obeisance falls on the courts' as well." 2 The effectivity of the Constitution could thus be made dependent not solely on the regularity with which ratification was obtained but likewise on acquiescene. As of the time that Javellana was decided in 1973, I had occasion to state: "The thought persists, however, that as vet sufficient time has not elapsed to be really certain [of the fact of acquiescene]." 3
2. Thus we come to Aquino, Jr. v. Commission on Elections. 4 It was decided on January 31, 1975. Once again, I felt obeisance to the fundamental doctrine that the national will, once ascertained on matters of great significance, should be controlling. By then, it was clear to me that the evidence was unmistakable as to such acceptance by the Filipino people. Thus: "Parenthetically, it may be observed that in 1973 when the Javellana decision was promulgated, I could not detect sufficient evidence as to the fact of acquiescene to the present Constitution. ... Since then, with well-nigh two years having gone by, it is quite evident that the matter is no longer open to doubt. Under the standard set forth in the leading case of Taylor v. Commonwealth, decided at the beginning of the century, no other conclusion is allowable. The present Constitution 'having been thus acknowledged and accepted by the officers administering the government and by the people ... and being, as a matter of fact, in force throughout and there being no government in existence ... opposing or denying its validity, lit is the only rightful, valid, and existing Constitution ... and that to it all the citizens ... owe their obedience and loyal allegiance.5
3. It also bears repeating that while Aquino, Jr. v. Commission on Elections affirmed the power of the President to promulgate decrees having the force of law during the emergency period, I was able to vote for the dismissal of the petition without ruling on the question of whether the President could exercise such legislative power, precisely on the ground that the judiciary should pose no obstacle to the holding of a plebiscite, the crucial issue of such controversy. For that, for me, is to accord deference to the cardinal postulate that sovereignty resides in the people. So I explained in my concurring opinion: "The success of petitioners would signify that the referendum scheduled for February 27 of this year will not take place. Believing as I do that the opportunity of the people to give expression to their views is implicit in the fundamental principle that sovereignty resides in them, I am unable to find sufficient merit in this petition. For all its logical and plausible aspect, it still does not admit of doubt, in my mind at least, that a conclusion different from that reached by this Court would be attended by deplorable consequences. For one thing, it would impress with the stigma of illegality the procedure that under the stern realities of the present is the only one in the horizon of ascertaining the desires of the people. Moreover, under a republican regime, even under normal times, their role is limited to the choice of public officials, thereafter to be held to accountability through their informed, even immoderate, criticism. Now with this proposed referendum they will be sounded out on what they think and referendum, they win , and how they feel on matters of significance. Even assuming its consultative character, it remains at the very least a step in the right direction. It may not go far enough, but there is progress of sorts that hopefully may eventually lead to the goal of complete civilian rule. It stands to reason, at least from any standpoint, that when people are thus allowed to express their wishes and voice their opinions, the concept of popular sovereignty, more so under crisis conditions, becomes impressed with a meaning beyond that of lyric liturgy or acrimonious debate devoid of illumination. Nor is this to discern new waves of hope that may ultimately dissolve in the sands of actuality. it is merely to manifest fidelity to the fundamental principle of the Constitution. It dates back to the American Declaration of Independence of 1776. The government it sets up derives its powers from the consent of the governed. The basis of republicanism, to paraphrase Lerner is that the majority will shall prevail, the premise being that an ordinary citizen, the common man, can be trusted to determine his political destiny. Thereby, as Bryn-Jones pointed out, the controlling power, the governmental authority in the language of the Constitution, is invested in the entire aggregate of the community. It is in that sense, as Justice Laurel stressed in Moya v. del Fierro, that an 'enfranchised citizen [is] a particle of popular sovereignty and [ is ] the ultimate source of established authority.' There is reliance likewise to this excerpt from the eloquent opinion of Justice Jackson in West Virginia State Board of Education v. Barnette: 'There is no mysticisrn in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce Chat consent. Authority here is to be controlled by public opinion, not public opinion by authority. ' If that is true of the United States, so should it be in our land. It caters to man's fundamental yearning for some degree of participation in the process of reaching fateful decisions. While courts have to deal with the necessities of their time; the Ideal should remain untarnished. 6
4. As a member of the collegiate court, I must defer to the collective judgment of my peers. Aquino, Jr. v. Commission on Elections is not susceptible of any other interpretation. It may not be amiss to invite attention though to my citation of three American constitutionalists, Burdick; 7 Willis; 8 and Willoughby, 9 all of whom were of the opinion that even during the period of martial law as provided for in some State Constitutions, the executive cannot exercise legislative power. There is this citation from Willoughby appearing in my concurrence in the first Aquino case, Aquino, Jr. v. Enrile: 10 "There is, then, strictly speaking, no such thing in American law as a declaration of martial law whereby military law is substituted for civil law. So-called declarations of martial law are, indeed, often made, but their legal effect goes no further than to warn citizens that the military powers have been called upon by the executive to assist him in the maintenance of law and order and that, while the emergency lasts they must, upon pain of arrest and punishment not commit any acts which will in any way render more difficult the restoration of order and the enforcement of law." 11 While, therefore, the leading case of Duncan v. Kahanamoku 12 stressed that even during the period of martial law, the lawmaking power is left to the legislative body and the judicial power to the judiciary, the prevailing doctrine in this jurisdiction is that the Executive could exercise legislative power during this period of martial law. So the pertinent section of the Transitory Provisions of the 1973 Constitution was interprelude. 13 There was a reaffirmation of such competence in the 1976 Amendments.14
5. True it is that the holding of the Court that the President can create military tribunals to try civilians finds support in the third Aquino case, Aquino, Jr. v. Military Commission No. 2. 15 For me, though, only its compelling force precludes continued adherence to my belief that, as stated in my concurring and dissenting opinion in such case, "were it not for the above mandate of the Transitory Provisions, the submission of petitioner as to a military commission being devoid of jurisdiction over civilians elicits approval. The controlling principle, to my mind, is that, supplied in the opinion of the United States Supreme Court in Duncan v. Kahanamoku, a decision impressed with the greatest relevance inasmuch as it interpreted the specific section found in the Hawaiian Organic Act, which was also a feature of the Philippine Autonomy Act, the source of the martial law provision in the 1935 Constitution." 16 As was pointed out in the Duncan opinion penned by Justice Black: "Courts and their procedural safeguards are indispensable to our system of government. They were set up by our founders to protect the liberties they valued. Ex parte Quirin, supra, 317 U.S. at page 19, 63 S. at page 6, 8-1, L. ed. 3. Our system of government clearly is the antithesis of total military, rule and the founders of this country are not likely to have contemplated complete military dominance within the limits of a Territory made part of this country and not recently taken from an enemy. They were opposed to governments that placed in the hands of one man the power to make, interpret and enforce the laws. Their philosophy has been the people's throughout the history. For that reason we have maintained legislatures chosen by citizens or their representatives and courts and juries to try those who violate legislative enactments. We have always been especially concerned about the potential evils of summary criminal trials and have guarded against them by provisions embodied in the constitution itself." 17 Its concluding portion follows: "We believe that when Congress passed the Hawaiian Organic Act and authorized the establishment of martial law' it had in mind and did not wish to exceed the boundaries between military and civilian power, in which our people have always believed, which responsible military and executive officers had heeded and which had become part of our political philosophy and institutions prior to the time Congress passed the Organic Act. The phrase 'martial law' as employed in that Act, therefore, while intended to authorize the military to act vigorously for the maintenance of an orderly civil government and for the defense of the island against actual or threatened rebellion or invasion, [it] was not intended to authorize the supplanting of courts by military tribunals. Yet the government seeks to justify the punishment of both White and Duncan on the ground of such supposed Congressional authorization. We hold that both petitioners are now entitled to be released from custody." 18
6. Clearly then, it was only with the utmost reluctance that I was able to yield my concurrence to the ruling that during this period of martial law, military tribunals is vested with the competence to try civilians for certain specified offenses, likely to foster continuance of the rebellion. There was reassurance, however, in the thought that the opinion of the Court, penned by Justice Antonio, paid due heed to the basic principle that in the conduct of cases triable by them, such military commissions would respect all the constitutional rights of an accused person. Such was the assumption in my concurring and dissenting opinion: "It is from that perspective that at a discussion of the due process guarantee gains significance. It has a connotation both substantive and procedural. As to the latter aspect, it is true that it has at its core to follow the classic formulation of Webster, the requirement of a hearing before condemnation and a process of rational inquiry, but it has a much wider radiation extending to all the legal safeguards enjoyed by a person indicted for an offense. So it has come to be in the United States, where it is deemed to include the right t be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right to counsel, the right to a speedy and public trial, to confrontation of opposing witnesses, to compulsory process for obtaining witnesses, the right to a jury trial, and the right against double jeopardy. Such an approach is not uncongenial in our jurisdiction." 19
7. There is added reassurance in the step taken by President Ferdinand E. Marcos on September 10, 1979 which would minimize even more whatever untoward consequences may follow from the departure from the traditional, and to my mind. the more desirable principle that military tribunals should be devoid of jurisdiction where civilians are concerned. 20 More specifically, he categorically declared that as of that date no arrest, search and seizure order "shall be issued by anyone without the approval of the President' except in cases of flagrante delicto that "all detention prisoners against whom no cases have been filed or who were arrested without warrant," would be immediately released; that military tribunals would be "phased out as soon as they finish the trial" of pending cases, with those having been set for trial being referred back to the civilian courts unless there be supervening reasons for their continuance therein; that "detention prisoners of ordinary crimes shall be immediately transferred to the custody of civil officers" either the Integrated National police or the prosecuting fiscals; and that he had signed 'the amnesty of 1,500 prisoners who have been charged for various offenses. 21
8. It is true, as stated in the opinion of the Court, that in Magtoto v. Manguera, 22 this Tribunal, with the late Chief Justice Castro, Justice Teehankee and the writer of this concurrence dissenting, held that the explicit adoption in the Philippines of the Miranda decision23 expanding the scope of the self-incrimination clause by granting to a person under custodial interrogation for tile commission of an offense the right to remain silent and to counsel and to be informed of such right, a confession obtained in violation thereof being inadmissible in evidence, 24 was held as not applicable to confessions obtained before the effectivity of the present Constitution. I could not agree with such a ruling as the language of the Constitution is quite categorical. As I set forth in my dissent: "My starting point is the recognition of the power of the Constitutional Convention to impose conditions that must be fulfilled before a duty is cast on a court to allow a confession to form part of the records of the case and that such power was in fact exercised. So I read the last sentence of the provision in question: 'Any confession obtained in violation of this section shall be inadmissible in evidence.' The words cannot be any clearer. A judge is bereft of the competence, even if he were so minded, to impress with admissibility any confession unless the person under investigation was informed of his right to remain silent and his right to counsel. Absent such a showing, whatever statement or admission was obtained during such stage of custodial interrogation is a worthless piece of paper. So the Constitution commands. It speaks in no uncertain terms from and after January 17, 1973 when it became effective. The crucial date is not when the confession was obtained, but when it was sought to be offered in evidence. Parenthetically, such a mode of viewing the issue would indicate the irrelevancy of the question of prospectivity. To repeat, there is no imprecision in the terminology of the fundamental law. It is quite emphatic in its choice of the phrase, 'inadmissible in evidence. This then is, for me at least, one of those cases where, to paraphrase Justice Moreland, the judicial task is definitely indicated, its first and fundamental duty being to apply the law with the Constitution at the top rung in the hierarchy of legal norms. Interpretation therefore comes in only after it has been demonstrated that application is impossible or inadequate without its aid." 25 Nonetheless, as was pointed out in Justice Makasiar's opinion, the Manguera doctrine is now the settled law on the matter. In the later case of Cudiamat v. People, 26 if there is this relevant excerpt: "The invocation of the expanded constitutional right against self-incrimination does not avail petitioner, who seeks a reversal of the Court of Appeals decision convicting him of homicide, the sentence imposed being six years and one day of prision mayor as minimum to twelve years and one day of reclusion temporal as maximum. It is true that as now worded, the Miranda doctrine as to the inadmissibility of a confession during custodial interrogations has been incorporated in the Constitution. Counsel for petitioner failed to take into account, however, that as held in Magtoto v. Manguera, the inadmissibility of such confessions attaches only to such as are obtained after the present fundamental law took effect on January 17, 1973. The statement of petitioner as a suspect in the killing of one Benjamin Angangan was subscribed before a municipal judge as far back as December 16, 1963. The brief for petitioner is quite insistent on interpreting the Constitution to make it cover such confessions. Such an approach shows partiality for the stand taken by the dissenters one of whom is the writer of this opinion. Unfortunately for petitioner, a majority of the Court en banc was of a different mind, and their view must be followed. So the rule of law commands." 27 As I was the ponente, I have no other choice but to submit anew to the collective judgment of my brethren. At any rate, I am comforted by the thought that after the lapse of seven years, it is not likely that there are still many confessions made before January 17, 1973 and not yet offered in evidence. Petitioner's stand on this point is thus bereft of support in authoritative precedent. To continue dissenting would, for me, be an exercise in futility
9. One last point. In the second petition for habeas corpus now dismissed, 28 it was alleged that respondent Military Com mission No. 2, on March 16, 1973, "pronounced petitioners guilty and sentenced them to be shot to death by firing squad." 29 The next paragraph reads: "On September 29, 1973, President Ferdinand E. Marcos affirmed the decision of respondent Military Commission No. 2 and directed respondent Hon. Juan Ponce Enrile to carry out the order for the execution of petitioners." 30 Thus for me the question of whether or not this Court is empowered to pass on a death sentence by military tribunals where as in this case petitioner Gumaua is a civilian, calls for determination. More specifically, the crucial issue to me is whether the procedure for automatic review of a death sentence must be followed. My answer is in the affirmative. So I would conclude in the light of what in my opinion is the plain and explicit command of the Constitution. 31 I must admit that Ruffy v. Chief of Staff32 yields a different conclusion. Thus: "Courts martial are agencies of executive character, and one of the authorities 'for the ordering of courts martial has been held to be attached to the constitutional functions of the President as Commander in Chief, independently of legislation.' (Winthrop's Military Law and Precedents 2d Edition, P. 49.) Unlike courts of law, they are not a portion of the judiciary.' ... Not belonging to the judicial branch of the government, it follows that courts-martial must pertain to the executive department; and they are in fact simply in 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, and utilized under his orders or those of his authorized military representatives.'" 33 Such a ruling continues with unabated force where an accused belongs to the armed forces. I cannot subscribe to the view that it calls for application where a civilian is involved. After the holding of this Court in the third Aquino decision, referred to earlier, that military tribunals have jurisdiction over civilians in certain specified offenses, it would follow, to my way of thinking, that thereby judicial rather than executive power is being exercised and, therefore, the law on automatic review calls for respect and deference. Inasmuch as the ponencia of Justice Makasiar did not go that far, I cannot concur in full.
Hence this separate opinion.
Separate Opinions
TEEHANKEE, J., dissenting:
1. On the basic issue herein presented of the legality of trials of civilians (like petitioners) by military tribunals or commissions, I am constrained to reiterate my dissent in Aquino vs. Military Commission No. 2, et al.1 that civilians are entitled to trial by the regular civil courts which have remained open and have been regularly functioning at this time, notwithstanding the imposition since September 21, 1972 of martial law.
I hold, as I did in Aquino, that under both the 1935 and 1973 Constitutions and the expressly avowed supremacy of authority over the military, "(C)ivilians like petitioner placed on trial for civil offenses under general law are entitled to tried by judicial process, not by executive or military process.
"Judicial power is vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly established by law. Judicial power exists only in the courts, which have 'exclusive power to hear and determine those matters which affect the life or liberty or property of a citizen. 3
"Military commissions or tribunals are admittedly not courts and do not form part of the judicial system. As further admitted by the Solicitor General in his answer, 4 military commissions are authorized to exercise jurisdiction over two two classes of offenses, whether committed by civilians or by military personnel either (a) in the enemy's country during its occupation by an army and while it remains under military government or (b) in the locality, not wit the enemy's country, in which martial law has been established by competent authority. The classes of offenses are (a) violation of the laws and customs of war and (b) civil crimes, which because the civil courts are closed or their functions suspended or limited, cannot be taken cognizance of by the ordinary tribunals.
"Since we are not enemy-occupied territory nor are we under a military government and even on the premise that martial law continues in force, the military tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are properly cognizable by the civil courts that have remained open and have been regularly functioning. 5 In the leading case of Duncan vs. Kahanamoku, 6 the U.S. Supreme Court held in setting aside the prison sentences imposed on two civilians by military tribunals that the placing of Hawaii under martial law (after the Japanese Pearl Harbor attack on December 7, 1941) under the Hawaiian Organic Act 7 did not include the power on the part of the military governor to supplant civilian laws by military orders and to supplant civil courts by military tribunals, where conditions were not such as to prevent the enforcement of the laws by the courts.
"The late Justice Frank Murphy in his concurring opinion therein repudiated the government's appeal to abandon the open courts' rule on the alleged ground of its unsuitability to 'modern warfare conditions where all the territories of a warning nation may be in combat zones or imminently threatened with long range attack even while civil courts are operating' as seeking 'to justify military usurpation of civilian authority to punish crime without regard to the potency of the Bill of Rights,' and observing that 'Constitutional rights are rooted deeper than the wishes and desires of the military.
"And in Toth vs. Quarles 8 the U.S. Supreme Court further stressed that 'the assertion of military authority over civilians cannot rest on the President's power as Commander-in-Chief or on any theory of martial law.'"
Civilians placed on trial before military commissions are unduly deprived of the right to be tried by judicial process, by the regular, independent courts of justice, with all the specific constitutional, statutory and procedural safeguards embodied in the judicial process and presided over not by military officers "trained and oriented along strict rules of discipline and rigid countenance (although) they are human beings with human hearts" 9 who are not lawyers (except the law member), but by judges of at least ten years experience in the practice of law whose objectivity and independence are protected by tenure guaranteed by the Constitution and are nurtured by the judicial tradition.
Thus, petitioners have complained that they were held incomunicado for one week before they were turned over to Camp Crame, that their confessions were obtained through "third-degree" methods and in violation of their constitutional rights to counsel and to silence and were admitted by the respondent military commission together with the sworn statements of three of their co-accused (Aguinaldo Cordova, Antonio Fernandez and Raymundo Adarme Co) who were never presented on the witness stand and whom they and their counsel never had the opportunity to confront and cross-examine. Such deprivation of the right to judicial process by the regular civil courts denies petitioners as civilians due process of law as guaranteed under section 1 of the Bill of Rights and under section 17 which specifically ordains that "No person shall be held to answer for a criminal offense without due process of law ..."
II. As already indicated above, the trial of civilians by military commissions cannot be justified by the continuing imposition of martial law.
As I wrote in my dissent in the 1976 Referendum-Plebiscite cases, 10 "(M)artial law concededly does not abrogate the Constitution nor obliterate its constitutional boundaries and allocation of powers among the Executive, Legislative and Judicial Departments. 11
"It has thus been aptly observed that 'Martial law is an emergency regime, authorized by and subject to the Constitution. Its basic premise is to preserve and to maintain the Republic against the dangers that threaten it. Such premise imposes constraints and limitations. For the martial law regime fulfills the constitutional purpose only if, by reason of martial law measures, the Republic is preserved. 'If by reason of such measures the Republic is so transformed that it is changed in its nature and becomes a State other than republican, then martial law is a failure; worse, martial law would have become the enemy of the Republic rather than its defender and preserver." 12
And I had stressed in the earlier 1975 Referendum Cases 13 that "the concept of martial law may not be expanded, as the main opinion does, to cover the lesser threats of 'worldwide recession, inflation or economic crisis which presently threatens all nations' in derogation of the Constitution." Petitioners have correctly submitted, in my view, that the resultant suspension of the privilege of the writ of habeas corpus as a consequence of martial law (as held by the majority of the Court in Aquino vs. Enrile 13-a) "cannot be all- embracing but must be restricted to those who are connected with the invasion, insurrection or rebellion. A contrary rule will result in absurdities ... The President can order r that persons charged with reckless driving, jay-walking, and littering be arrested and detained indefinitely without any charges being filed against them.13-b
It need only be added that the President does not need a state of martial law to exercise his unprecedented special powers in order to run the government and meet and contingency. The majority decisions of the Court have ruled in effect that under section 3 (2) of the Transitory Provisions of the 1973 Constitution,14 he has full powers of legislation and even the constituent power to propose and submit constitutional amendments and to proclaim their ratification by the people. Under the October 27, 1976 constitutional amendments thus adopted, his power of legislation by decree (notwithstanding the existence and functioning of the Interim Batasang Pambansa or the regular National Assembly) has been restated in Amendment No. 6. 15
III. I hold to the minority view in the Magtoto case, 16 shared by the late Chief Justice Fred Ruiz Castro, the now Chief Justice and myself that a confession of a person under investigation for the commission of an offense given without the assistance of counsel and without his having been duly informed of his right to remain silent and to assistance of counsel renders the confession void and inadmissible even if such confession were taken before the effectivity of the 1973 Constitution and only its admission sought thereafter.
The late Chief Justice Castro did enjoin us in his separate dissent that "(I) hold no brief against custodial interrogation per se. But I do entertain mortal fear that when a detained person is subjected, without the assistance of counsel, to custodial interrogation by peace officers, official lawlessness could be the rule and not the exception. Witness the innumerable cases in the annals of adjudication where this Court has set at naught and declared inadmissible confessions obtained from detained persons thru official lawlessness. it is a verity in the life of our nation that people without influence and without stature in society have, more often than not, been subjected to brutal and brutalizing third-degree methods, if not actually framed, by many police agencies in this country. Instead of blinking our eyes shut to this reality, we must recognize it for what it is," and concluded thus: "(P)erhaps, my brethren may not begrudge this paraphrase of Justice William Douglas as a conclusion to this dissent: the rights of none are safe unless the rights of all are protected; even if we should sense no danger to our own rights because we belong to a group that is informed, important and respected, we must always recognize that any code of fair play is also a code for the less fortunate.
The now Chief Justice, quoting the eloquent language of Justice Hugo Black stressed in turn in his separate dissent that " 'No higher duty, no more solemn responsibility, rests upon this Court, than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution — of whatever race, creed or persuation.' 17 So it will be in due time, even with this decision. Soon, hopefully, the lower courts will no longer be confronted with confessions obtained before the effectivity of the Constitution but offered in evidence thereafter. So with more reason, I am led to conclude, if eventually it has to be thus, why not now?
I reaffirm my stand that the Constitution 18 now expressly protects "a person under investigation for the commission of an offense" from the overwhelming power of the State and from official abuse and lawlessness and guarantees that he "shall have the right to remain silent and to counsel and to be informed of such right." In order to give force and meaning to the constitutional guarantee, it flatly outlaws the admission of any confession obtained from a person under investigation who has not been afforded his right to silence and counsel and to be informed of such right. There is no room for interpretation and the plain mandate of the Constitution expressly adopting the exclusionary rule as the only practical means of enforcing the constitutional injunction against such confessions obtained in violation of one's constitutional rights by outlawing their admission and thereby removing the incentive on the part of state and police officers to disregard such rights (in the same manner that the exclusionary rule bars admission of illegally seized evidence), 19 should be strictly enforced. What the plain language of the Constitution says is beyond the power of the courts to change or modify.
IV. The reflections cast in respondents' memorandum on the competence and integrity of the civil courts 20 have long been set at rest. As I pointed out in my dissent almost five years ago in Aquino vs. Military Commission No. 2, supra, "General Order No. 49 issued by the President on October 4, 1974 restored to the civil courts a large number of criminal cases that were transferred to military tribunals upon the proclamation of martial law on the express premises that positive steps have been taken to revitalize the administration of justice and the New Constitution authorizes the reorganization of the courts' and 'although there still exist areas of active rebellion in the country, on the whole there has been such an improvement in the general conditions obtaining in the country and in the administration of justice as to warrant the return of some of the criminal cases to the jurisdiction of civil courts and
"These premises of G.O. No. 49 are borne out by the data and published reports. The twenty (20) military commissions (14 ambulatory and 6 regional commissions) 21 hearing cases from time to time in marathon hearings as the pressures of the military service allow the military commissions to convene could not-conceivably match the work and cases disposition of around three hundred and twenty (320) courts of first instance -and circuit criminal courts all over the country working continuously and regularly throughout the year
"The argument of procedural delays in the civil courts and need of prompt and certain punishment has been long cut down by the late Justice Frank Murphy in his concurring opinion in Duncan 22 when he stressed that 'civil liberties and military expediency are often irreconcilable and that 'the "swift trial and punishment which the military desires is precisely what the Bin of Rights outlaws. We would be false to our trust if we allowed the time it takes to give effect to constitutional rights to be used as the very reason for taking away those constitutional rights.'"
These observations received the final confirmation from the President's own military commissions phaseout order when he issued Letter of Instruction No. 772 over a year ago under date of November 27, 1978, whereby he directed that all criminal cases to be filed by the Judge Advocate General or the military establishment "shall be referred in the first instance to the civil courts and no longer to the military commissions
ACCORDINGLY, I vote to grant the petitions at bar for certiorari, prohibition and mandamus to annul the proceedings against petitioners as civilians before respondent military commissions and to direct that the charges against them be duly endorsed to the regular civil courts for proper trial and determination.
Footnotes
1 63 SCRA 546 (1975).
2 Art. X, section 1, 1973 Constitution.
3 Words and Phrases, Perm. Ed. Vol. 23, p. 317-318. See Lopez vs. Roxas, 17 SCRA 756 (1966); Scoty's Dept. Store vs. Micaller 99 PhiL 762 (1956).
4 At pages 14-16, Answer to Supplemental Petition; emphasis supplied.
5 Ex parte Milligan, 4 Wallace (U.S.) 127,18 L. ed. 297.
6 327 U.S. 304 (1946).
7 Its Organic Act prior to Hawaii's incorporation as a state of the American Union contained a provision similar to that in our Constitution for the declaration of martial law in case of invasion, insurrection or rebellion or imminent danger thereof, when the public safety requires it.
8 350 U.S. 5, 14 (1955).
9 Brig. Gen. GS Santos, AFP JAGO Chief, Phil. Daily Express, April 26, 1975, p.
10 Sanidad vs. Comelec and other a 73 SCRA 333 (1976).
11 Articles VIII, IX and X, 1973 Constitution.
12 U.P. Professor Perfecto v. Fernandez Civil Liberties under Martial Law.
13 Aquino vs. Comelec. 62 SCRA 275 (1975).
13-a 59 SCRA 183.
13-b Petitioners Reply in L-37586, Rollo, pp. 39-40
14 The text reads: "All proclamations, orders, decrees, instructions, and acts promulgated, issued or done by the incumbent President shall be part of the law of the land, and shall remain valid legal binding, and effective even after lifting of martial law or the ratification of this Constitution, unless modified revoke or superseded by subsequent proclamations, orders, d instructions, or other acts of the incumbent President, or unless Expressly and explicitly modified or repealed by the regular National Assembly.
15 The text reads: (W)henever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Bata Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action. he may, in order to meet the agency, issue the decrees, orders, or letters of instructions, which shall form part of the law of the land.
16 63 SCRA 4 (1975).
17 Chambers vs. Florida, 309 US 227, 241 (1940).
18 Section 20 of the Bill of Rights (Art. IV), 1973 Constitution.
19 Cf. Stonehill vs. Diokno, 20 SCRA 383 (1967).
20 Doubtless there are in our judiciary beamed conscientious and selfless men and women imbued with a high sense of justice. Nevertheless, there was an impression among many of our people before martial law that some judges could be bought, that others were incompetent, and that still others were simply bereft of enthusiasm and compassion to see that justice was done to their fellowmen. The fact was that the judicial system had lost much of its vigor and effectiveness and the people's faith ... Rollo of L-37586, pp, 119, et seq.
21 Supra, footnote 9.
22 Supra, footnote 6.
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