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PRESIDENTIAL DECREE NO. 978
PRESIDENTIAL DECREE NO. 978 -
AMENDING THE APPELLATE REVIEW PROCEDURE IN MILITARY TRIBUNAL CASES AS
PROVIDED IN PRESIDENTIAL DECREE NO. 39, AS AMENDED BY PRESIDENTIAL
DECREE NO. 566, AND IN COURT-MARTIAL CASES AS PROVIDED IN COMMONWEALTH
ACT NO. 408, AS AMENDED
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WHEREAS,
under Presidential Decree No. 39, as amended by Presidential Decree No.
566, there is unnecessary duplication and waste of effort in the
appellate review process in cases tried by military commission and
provost courts created by pursuant to General Order No. 8, dated
September 27, 1972, and Presidential Decree No. 39;chanroblesvirtualawlibrary
WHEREAS, a military justice system interpreted by a civilian appellate
body will increase stability in the administration of military justice
and promote confidence of military personnel and the civilian populace
in the overall fairness of the military justice system;chanroblesvirtualawlibrary
WHEREAS, a simplified appellate review procedure for military tribunal
cases will be conducive to the speedy administration of military
justice;chanroblesvirtualawlibrary
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested in me by the new Constitution of the
Philippines and as Commander-in-Chief of all armed forces of the
Philippines, and pursuant to Proclamations Nos. 1081 and 1104, dated
September 21, 1972 and January 17, 1973, respectively, and to make more
effective, just, speedy, and fair the administration of the military
justice system, do hereby order and decree as part of the law of the
land the following amendments to the appellate review system in
military tribunal cases prescribed in Presidential Decree No. 566, and
in general court-martial cases and special court-martial cases
involving bad conduct discharge as provided in the pertinent Articles
of War for the Armed Forces of the Philippines;chanroblesvirtualawlibrary
Section 1. Initial Action on Record. — (a) Review by
Staff Judge Advocate/Legal Officer or AFP Board of Review. — Every
record of trial by military commission or provost court shall be
forwarded to the staff judge advocate/legal officer of the convening
authority for review before the latter acts thereon. The staff judge
advocate/legal officer shall submit his opinion in writing to the
convening authority regarding the legal sufficiency of the record of
trial in which there has been a finding of guilty, the appropriateness
of the sentence, and any errors of law which may have been committed
injuriously affecting the substantial rights of the accused. If the
trial resulted in a finding of not guilty or acquittal of all the
charge or charges and specification or specifications, the review shall
be limited to questions of jurisdiction. chanroblesvirtualawlibrary
For purposes of this initial review, the Judge Advocate General, AFP
shall, as may be directed by the Chief of Staff, AFP, create in his
office as many AFP Boards of Review as he may deem proper to conduct
the review of a record of trial for the Chief of Staff, AFP, in lieu of
the review of his staff judge advocate. The Judge Advocate General,
AFP, shall prescribe uniform rules of procedure for the AFP Boards of
Review.
b) Action by the Convening Authority. — The convening
authority may approve the findings of guilty and the sentence or such
part thereof as he finds correct in law and fact. As used in this
decree, the term "convening authority" refers to the person who
convened the court, a commissioned officer commanding for the time
being, or a successor in command.
c) Rehearing. — Where the convening authority
disapproves the findings of guilty of the military commission or
provost court, he may order a rehearing, except where the disapproval
is based on lack of legally sufficient evidence to support the findings
and sentence. If he does not order a rehearing, he may order the
dismissal of the case: Provided, that such a dismissal shall not be
final with respect to the cases which are required to be reviewed by
the Court of Military Appeals and/or the President of the Philippines
as provided in Section 2(a) and 4 of this decree. Where the military
commission or provost court had no jurisdiction over the offense and
person of the accused, the convening authority shall take the
appropriate action.
(d) Sentence Immediately Executory. — All sentences
of military commissions and provost courts shall immediately executory
upon approval thereof by the convening authority, except those which
are required to be reviewed by the Court of Military Appeals and/or the
President of the Philippines as provided in Section 2(a) and 4 of this
decree. chanroblesvirtualawlibrary
Section 2. Review by Court of Military Appeals. — (a)
Where Required. — The Judge Advocate General, AFP, shall refer to the
Court of Military Appeals every record of trial by military commission
or provost court in which the sentence as approved, or disapproved
without a rehearing being ordered, by the convening authority —chanroblesvirtualawlibrary
(i) extends to death;chanroblesvirtualawlibrary
(ii) affects a general or flag officer of the Armed
Forces of the Philippines;chanroblesvirtualawlibrary
(iii) involves dismissal of a commissioned officer of
the Armed Forces of the Philippines;chanroblesvirtualawlibrary
(iv) confinement of more than six (6) years;chanroblesvirtualawlibrary
(v) fine of more than P6,000.00; and
(vi) those affecting any civilian person:cralaw:red
Provided, however, That, except in death sentences, all sentences of
military commissions and provost courts based solely upon findings of
guilty of a charge or charges and a specification or specifications to
which the accused pleaded guilty shall, upon approval thereof by the
convening authority, not be subject to further review by the Court of
Military Appeals as herein provided.
The Judge Advocate General, AFP, shall likewise refer to the Court of
Military Appeals for review every record of trial by military
commission on provost court — chanroblesvirtualawlibrary
(1) in which the sentence as disapproved, without a
rehearing being order, by the convening authority —chanroblesvirtualawlibrary
(i) involves suspension or dismissal of a cadet,
flying cadet or midshipman of the Armed Forces of the Philippines;chanroblesvirtualawlibrary
(ii) involves dismissal of a probationary second
lieutenant of the Armed Forces of the Philippines;chanroblesvirtualawlibrary
(iii) extends to dishonorable discharge or bad
conduct discharge;chanroblesvirtualawlibrary
(iv) extends to confinement of more than one (1)
year; and
(v) involves fine of more than P1,000.00;chanroblesvirtualawlibrary
(2) upon petition of the accused within thirty (30)
days from the date he is notified by the Judge Advocate General, AFP,
of the promulgation of the military commission or provost court order.
(b) Scope of Court's Review. — The Court of Military
Appeals may act only with respect to the findings of guilty by the
military commission or provost court as approved or disapproved by the
convening authority. It shall determine the appropriateness of the
sentence imposed by the military commission or provost court as
approved or disapproved by the convening authority. In considering the
records, it may weigh the evidence, judge the credibility of witnesses,
and determine controverted questions of fact and any errors of law
which may have been committed injuriously affecting the substantial
rights of the accused.
(c) Rehearing. — The Court of Military Appeals may
disapprove the findings of guilty by the military commission or provost
court, as approved or disapproved by the convening authority, and order
a rehearing, except where the disapproval is based on lack of legally
sufficient evidence to support the findings. If it does not order a
rehearing, it may dismiss the case. chanroblesvirtualawlibrary
(d) Action in Accordance with Decision of Court. —
After the Court of Military Appeals has acted on a case, the Judge
Advocate General, AFP, shall advise the convening authority to take
action in accordance with the decision of the court, unless there is
further action by the President of the Philippines as herein below
provided.
(e) Annual Survey of Appellate Review Operations. —
The Judge Advocate General, AFP, and the Court of Military Appeals
shall meet annually to make a comprehensive survey of appellate review
operations and report to the President of the Philippines the number
and status of cases reviewed and pending and any recommendation
relating to uniformity of policies as to bail or release pending
appellate review, sentences, service of sentences, and any other
matters considered appropriate.
(f) Creation — Composition of Court. — There is
hereby created a Court of Military Appeals which shall consist of a
Presiding Justice and at least four (4) Associate Justices to be
appointed by the President of the Philippines from retired justices of
the Court of Appeals or Supreme Court of the Philippines and/or
individuals not less than forty (40) years old and who have practiced
law for not less than ten (10) years at the time of appointment or have
held during a like period an office in the Philippine government
service requiring admission to the practice of law in the Philippines
as an indispensable requisite. The President shall designate from time
to time one of the justices to acts as Presiding Justice. The court
shall prescribe its own rules of procedure and determine the number of
justices to constitute a quorum, provided, however, that the
affirmative vote of at least five (5) of the justices is required to
sustain a death sentence. chanroblesvirtualawlibrary
(g) Tenure, Removal, Rank and Emoluments of Justices.
— The justices of the Court of Military Appeals shall hold office until
they reach the age of sixty-five years, except the retired justices of
the Court of Appeals and/or Supreme Court of the Philippines who are
appointed therein, who shall hold office for the period designated in
their appointments, renewable for the same period. They may be removed
by the President, upon notice and hearing, only for neglect of duty or
malfeasance in office, or for mental or physical disability rendering
them incapacitated to discharge the duties of their office. If a
justice is temporarily unable to perform the functions and duties of
his office because of illness or other physical disability, the
President may, upon recommendation of the Chief Justice of the Supreme
Court, detail a member of the civilian judiciary or appoint a member of
the Philippine Bar who possesses the qualifications mentioned in
subparagraph (f) of this section to fill the office for the period of
the disability. The Presiding Justice and associate justices of the
court shall have the rank and receive the emoluments, retirement and
other benefits corresponding to those of the Presiding Justice and
Associate Justice of the Court of Appeals, respectively: Provided,
however, That retired justices of the Supreme Court and Court of
Appeals who are appointed to the court may at their option, receive the
emoluments and benefits corresponding to their former positions in the
Supreme Court or Court of Appeals or their retirement pay: Provided,
further, That members of the civilian judiciary who are detailed to the
court to fill any vacancy therein caused by the temporary disability of
a justice may elect to receive the emoluments and benefits of a justice
of the court or of his position in the civilian judiciary. chanroblesvirtualawlibrary
Section 4. Confirmation of Approval by the President.
— (a) No sentence of military commission involving death or affecting a
general or flag officer of the Armed Forces of the Philippines shall be
ordered executed until approved or confirmed by the President of the
Philippines.
(b) In any case requiring approval or confirmation by
the President as provided herein, the President shall have the power to
reverse, confirm, increase the penalty imposed or otherwise modify any
decision of the military tribunal or court-martial.
Section 5. Review of Records of Trial by
Court-Martial. — The Court of Military Appeals herein created shall
review every record of trial by general court- martial or special
court-martial where the sentence, as approved by the convening
authority, requires confirmation by the President of the Philippines as
provided in Article of War 47. With respect to such cases, except as
provided in the next preceding Section 4(a) of this decree, they shall
become final and immediately executory when the findings of guilty and
the sentence are approved, or disapproved, without a rehearing being
ordered, by the Court of Military Appeals.
Section 6. Applicability of the Indeterminate
Sentence Law; etc. — In determining the appropriateness of the
sentence, the reviewing authorities in a proper case shall apply the
provisions of Commonwealth Act No. 4103, as amended, and the pertinent
provisions of the Revised Penal Code, as amended, and the other laws,
decrees and general orders.
Section 7. Appropriations. — There is hereby
appropriated out of any funds in the National Treasury not otherwise
appropriated the amount of three million pesos for the first year of
operation of the Court of Military Appeals. Appropriations for the
Court of Military Appeals for succeeding years shall be embodied in the
annual appropriations act.
Section 8. Rescission Clause. — All provisions of
Presidential Decrees, General Orders, Letters of Instructions, the
Articles of War and other laws or portions thereof, which are
inconsistent with the provisions of this decree are hereby replaced or
modified.
Section 9. Transitory Provisions. — All records of
military tribunal and court-martial cases which are pending review on
the effective date of this decree shall be reviewed as herein provided.
Section 10. Effectivity. — This decree shall take
effect immediately.
DONE in the City of Manila,
this 17th day of August, in the year of Our Lord, nineteen hundred and
seventy-six.
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