M a n i l a
PRESIDENTIAL DECREE No. 39 November 7, 1972
GOVERNING THE CREATION, COMPOSITION, JURISDICTION, PROCEDURE, AND OTHER MATTERS RELEVANT TO MILITARY TRIBUNALS
WHEREAS, pursuant to Proclamation No. 1081 dated September 21, 1972, martial law is in effect throughout the Philippines;
WHEREAS, under General Order No. 3 and 3-A, dated September 22, 1972 and September 24, 1972, respectively, certain offenses have been withdrawn from the jurisdiction of the judicial department and directed to be tried by special civil and military tribunals which may be created by me or upon orders;
WHEREAS, under General Order No. 8 dated September 27, 1972, the Chief of Staff of the Armed Forces of the Philippines has been empowered to create military tribunals to try and decide cases of military personnel and such other cases as may be referred to them;
WHEREAS, under General Order No. 12 dated September 30, 1972 and General Order No. 12-A, dated October 2, 1972, the trial and decision on certain offenses are exclusively connizable by military tribunals or cognizable by said tribunals concurrently with the civil courts;
WHEREAS, for a more orderly administration of justice in the cases triable by the said military tribunals, it is necessary that the rules of procedure and other matters be prescribed by me;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution as Comander-in-Chief of all the Armed Forces of the Philippines, and pursuant to the proclamation and general orders mentioned above, do hereby promulgate and decree as part of the law of the land, the attached RULES GOVERNING THE CREATION, COMPOSITION, JURISDICTION, PROCEDURE, AND OTHER MATTERS RELEVANT TO MILITARY TRIBUNALS and do hereby enjoin strict adherence to them by all concerned, provided that the Chief of Staff, shall with the approval of the Secretary of National Defense, issue and promulgate implementing instructions which are not inconsistent with said rules.
All actions taken pursuant to Circular M-1, General Headquarters, Armed Forces of the Philippines dated October 2, 1972 are hereby confirmed.
This Decree shall take effect immediately.
Done in the City of Manila, this 7th day of November, in the year of Our Lord, nineteen hundred and seventy-two.
RULES GOVERNING THE CREATION, COMPOSITION, JURISDICTION, PROCEDURE, AND OTHER TRIBUNALS
1. General: These rules are applicable to all military tribunals.
2. Types and Composition of Tribunals:
a) The tribunals which may be created are:
1. Military Commission
2. Provost Court
b) Military Commission.
1. The Chief of Staff of the Armed Forces of the Philippines shall create military commissions. A military commission shall be composed of not less than five (5) members, one of whom shall act as law member. It shall try cases of military personnel as may be referred to it by the Chief of Staff, AFP and cases involving civilians as may be referred to it by the Secretary of National Defense. Only officers of field grade rank, if practicable, with judicial temperament, prudence and integrity shall be appointed. Only an officer on active military duty holding a commission in the Judge Advocate General's Service or a lawyer-officer who has been certified as qualified to sit as law member by The Judge Advocate General, AFP, may be appointed as law member.
2. Trial and Defense Counsel. An officer of suitable rank, legal background and experiemce, shall be designated as trial counsel who shall have the same duties as a trial judge advocate in general court-martial proceedings. We shall have the power to issue compulsory process to secure either testimonial and documentary evidence for both the prosecution and defense of the accused. An officer of suitable rank, legal background and experience shall be appointed as defense counsel. Assistant trial and defense counsel as may be necessary shall also be appointed. Prosecutors and attorneys in the prosecution staff of the Department of Justice District State Prosecution, and city or provincial fiscals and their assistants may, upon request of the Secretary of National Defense, and in the interest of speedy administration of justice, be designated by the Secretary of Justice to assist or collaborate in the investigation and prosecution of cases cognizable by the Military Commission: Provided, however, That the prosecution shall be under the control and supervision of the trial counsel.
c) Provost Court.
1. A provost court is composed of one (1) officer designated as Provost Court Officer. He shall be a commissioned officer of suitable rank and a member of the Philippine Bar.
2. The Chief of Staff, AFP for GHQ and AFP-Wide Support units, and the major service commanders (CG, PA; C, PC; CG, PAF and FOIC, PN) are authorized to appoint and constitute provost courts to try military personnel assigned to or on detached service with their respective commands.
3. Cases involving civilians shall be referred to a provost court upon direction of the Secretary of National Defense. No cases involving a civilian shall be referred to a provost court except for an offense over which a military tribunal exercises exclusive or concurrent jurisdiction. The Chief of Staff, AFP, with the approval of the Secretary of National Defense, shall allocate said cases involving civilians among the various provost courts.
4. The Commander who appointed the provost court shall in the exercise of discretion determinate in each particular case involving military personnel which action (proper court, court martial, administrative separation) shall best serve the ends of justice, discipline and objectives of martial la.
3. Jurisdiction. All offenses where the range of punishment that may be imposed is confinement for at least six (6) years and one (1) day, or fine of not less than two thousand pesos (P2,000.00) shall be referred to a military commission. All other cases shall be referred to a provost court. A commissioned officer on active duty in the Armed Forces of the Philippines shall, however, be tried only by a military commission.
4. Procedure for Military Commission.
a) Before Trial.
1. Before any charge is referred for trial, a summary preliminary investigation shall be conducted unless one has previously been made. The investigation shall be for the purpose of determining whether or not there is prima-facie evidence warranting referred to a military commission for trial. The investigator shall have the power to issue compulsory process to secure either testimonial or documetary evidence. The accused has no right to counsel. The investigation shall be conducted with dispatch and with the least possible delay. The investigation report shall contain a summary of the evidence, the acts constituting the offense or offenses committed, and the findings and recommendations of the investigating officer. It shall be forwarded to The Judge Advocate General, AFP who shall determine for either the Secretary of National Defense or the Chief of Staff, AFP whether the case shall be referred for trial by a military commission.
2. Charges. Formal charges shall be signed by a commissioned officer designated by The Judge Advocate General, AFP.
3. The Secretary of National Defense, if the accused is a civilian and the Chief of Staff, AFP if the accused is a military person, may direct that the charges be withdrawn from the military commission at any stage of the proceedings prior to the promulgation of findings and sentence by the commission.
4. Bail. The Military Commission may, in a case where bail has not been previously granted by the civil authorities, grant bail to the accused under such rules and regulations prescribed or may hereafter be prescribed by the Chief of Staff, AFP with the approval of the Secretary of National Defense. If the accused is a member of the Armed Forces of the Philippines, his detention shall be in accordance with the Articles of War and Manual Courts-Martial.
b) During Trial.
1. Place of Hearing. A military commission may hold hearings in any military camp, post, station, headquarters or civilian government office anywhere in the Philippines taking into consideration the availability of witness, place of the commission of the offense and such other circumstances may be necessary for a fair and speedy trial.
2. Challenges. No peremptory challenge shall be allowed. Challenges for cause may be entertained to insure impartiality and good faith. Challenges shall immediately be heard and determined by a majority of the members excluding the challenged member. A tie vote does not disqualify the challenged member. A successfully challenged member shall be immediately replaced.
3. Oaths. The oaths prescribed in the Manual for Courts-Martial shall be used, making such changes and substitutions in wording as are necessary. The members of the Commission, the trial counsel, and reporters need only be sworn once at the time they are appointed need not be sworn again for the trial of each new case.
4. Quorum. To constitute a quorum, at least five (5) members must be present.
5. Rights of Accused. The accused shall be entitled:
a) To challenge for cause any member of the commission based on any of the grounds provided in the Manual for Courts-Martial.
b) To receive copy of the charges at least five (5) days in advance of the date of initial hearing.
c) To be present at the arraignment, when he enters a plea of guilty and at the pronouncement of judgment of conviction. Where the accused is in custody or charged with a capital offense, he shall be entitled to be present at all stages of the trial. In cases where there is allegation of conspiracy and one or more accused are available for trial and others are not, trial may proceed against all, provided, that the indictment shall have been published at least one week for two consecutive weeks in any newspaper of general circulation and a copy of a notice of trial shall have been served on the accused or on his next of kin or at his last known residence or business address with a person of sufficient discretion to receive the same.
d) To be presented during the trial by defense counsel appointed by the convening authority, or counsel of his own choice if practicable or to conduct his own defense. In the event that he is allowed a counsel of his own choice, he may elect to retain or excuse the appointed defense counsel.
e) To testify on his own behalf and present evidence in his defense, and cross-examine any witness who personally appears before the commission.
f) To have the substance of the charges and specifications, the proceedings and any documentary evidence translated when he is unable to understand them.
g) To have a copy of the record of trial within a reasonable time after trial.
6. Law Member. The ruling of the law member on the admissibility of evidence and on all interlocutory questions (i.e., all questions other than the findings of guilt or innocence and sentence) other than challenges, motion for a finding of not guilty or sanity of the accused shall be final.
(a) The rules set forth in the Manual for Courts-Martial shall normally be applied. Where the strict application of said rules is not feasible, the Commission may modify the same consistent with the requirements of justice. In such event, the commission should accord the accused or his counsel and the trial counsel reasonable notice before applying the modified rules. Nothing under this rule should, however, allow the commission to admit hearsay evidence nor to convict the accused without proof beyond reasonable doubt.
8. Trial Proper Procedure. After the period of challenges and the commission having been empanelled, the trial shall be conducted substantially as follows unless modified by the commission pursuant to (7) (a) above:
a) Each charge and specification shall be read, or its substances stated, in open court.
b) The presiding member shall ask the accused whether he pleads "Guilty" or "Not Guilty." At this stage, the accused may more to quash charge under the same grounds, procedure, and conditions prescribed in the Revised Rules of Court of the Philippines, except that the motion shall only be oral.
c) The prosecution shall make its opening statement.
d) The witnesses and other evidence for the prosecution shall be heard or presented. At the close of the case for the prosecution, the commission, may on motion of the defense for a finding of not guilty, consider and rule whether the evidence before the commission supports the charges against the accused. The commission may grant, deny or defer action on such motion.
e)The defense may make an opening statement prior to presenting its case.
f) The witnesses and other evidence for the defense shall be heard or presented. Thereafter, the prosecution and defense shall introduce evidence in rebuttal.
g) The prosecution and thereafter the defense shall deliver their respective summations.
h) The commission shall thereafter close and deliberate on the findings and sentence and shall not adjourn until it has arrived at and announced the findings and sentence.
i) Manner of Voting and Number of Votes Required. Voting on the findings and sentence and shall be secret written ballot. The minimum number of votes required for a conviction or sentence shall be as follows:
1. To convict:
a) For an offense carrying a mandatory death penalty Five (5) members.
b) For other offenses Two thirds of the members present at the time the vote is taken.
2. To sentence:
a) Death Five (5) members.
b) Other penalty Two thirds of the members present at the time the vote is taken.
9. Sentence. The sentence shall be commensurate with the offense committed. A military commission shall apply the penalties prescribed in martial law orders or decrees and their absence, the penalties prescribed by applicable laws. In the absence of both, the penalties prescribed by the Articles of War and Manuals for Courts-Martial shall be the guide. Conviction automatically carries with it dismissal from the service if the accused is a commissioned officer, government official or employee, and dishonorable discharge if an enlisted person of the Armed Forces of the Philippines, unless otherwise decreed in the judgment.
10. Record. A military commission is a court of record. A verbatim record of its proceedings shall be made. It shall be prepared by the trial counsel under the direction of the commission. Such record, certified by the presiding members of the commission or his successor shall be delivered or transmitted to the convening authority as soon as possible after trial.
11. Contempt. A military commission may punish direct contempt with confinement for not more than one (1) month and indirect contempt with confinement for as long as the person fails to comply or obey a lawful order of the commission.
c) After trial.
1. Action by Convening Authority. Every record of trial by military commission shall be forwarded to the Chief of Staff, Armed Forces of the Philippines for action. If the sentence imposed by the military commission is death or imprisonment for twenty (20) years and one (1) day or more, the Chief of Staff, Armed Forces of the Philippines shall refer the record of trial to a Board of Review as may be necessary. The Board of Review for review. For this purpose, he shall constitute such Board of Review as may be necessary. The Board of Review shall transmit its opinion together with the record of trial to the Chief of Staff, Armed Forces of the Philippines for action.
2. Execution of Sentence. Except as otherwise herein provided, no sentence of a military commission shall be executed unless the same is approved and ordered executed by the Chief of Staff, Armed Forces of the Philippines. Where the sentence imposed by a military commission is death or if the Chief of Staff recommends that a penalty of death should be imposed, in a case where the sentence imposed by a military commission is less than death, the record of trial shall be forwarded to the President through the Secretary of National Defense, for confirmation or approval. No sentence of death shall be executed unless ordered executed by the President. In any case, the President shall have the power to reverse, confirm, increase the penalty imposed, or otherwise modify any decision of the military commission.
5. Procedure in Provost Court:
a) Before Trial. A summary investigation as that required for a military commission shall be conducted unless the offense is punishable by less than six (6) months of imprisonment and/or fine of less than two hundred pesos (P200.00) in which case no investigation shall be conducted. However, the accused should receive notice of the charge at least three (3) days in advance of trial. The charges should be signed by the accuser who must be an officer on active military duty.
b) During Trial.
1. General Procedures. The provost court officer is not subject to challenge. However, if the accused has a ground for challenging the provost court officer for cause, he shall address his challenge to the appointing authority for decision, in which event the provost court officer shall not proceed until the challenge has been decided. The rules pertaining to oaths, rules of evidence, and the right of the accused to produce evidence and cross-examine witnesses is the same as those provided for a military commission. The accused may be represented by counsel of his own choice if he so desires, unless the exercise of such right will unduly delay the proceedings.
2. Record. A verbatim record of the proceedings of a provost court shall be made. It shall be prepared by the provost court officer. Thereafter, it shall immediately be transmitted to the major service commander for action as appointing authority.
c) After Trial. No legal review after trial is required. The sentence imposed is immediately executory upon approval by the convening authority, unless the accused petitions the convening authority for a review of the record of the case within fifteen (15) days after the promulgation of the judgment by the court. In such event and if the convening authority gives due course to the petition, the record shall be reviewed by the judge advocate of the convening authority. Action of the covening authority shall be made after the judge advocate has submitted his advice and recommendation. After review and upon approval of the sentence by the appointing authority, the same shall be immediately executory.
6. General Guidance. In all matters of procedure not specifically covered in these rules, other general orders, decrees or letters of instructions issued by higher authority, the Articles of War and Manual on Courts-Martial shall be applied insofar as strictly essential to serve the ends of justice.
7. Rescission Clause. Provisions of Manual for Courts-Martial and all other laws, rules and regulations which are inconsistent with these rules are hereby amended, superseded and modified to conform herewith.