Philippine Supreme Court Resolutions > Year 2008 > July 2008 Resolutions > [G.R. No. 178018 : July 15, 2008] COL. ARIEL O. QUERUBIN PN (M) VS. GEN. HERMOGENES C. ESPERON, JR., ET AL. :

Quoted hereunder, for your information, is a resolution of the Court En Banc dated July 15, 2008

�G.R. No. 178018 � COL. ARIEL O. QUERUBIN PN (M) VS. GEN. HERMOGENES C. ESPERON, JR., ET AL.

The instant petition for review on certiorari assails the Court of Appeals� (CA) Decision in CA-G.R. SP No. 97188 which dismissed petitioner�s application for certiorari and prohibition, questioning the legality of the creation of Special General Court-Martial No. 2 (SGCM No. 2) by respondent Chief of Staff of the Armed Forces of the Philippines (AFP Chief of Staff)

Petioner was among the senior officers of the Philippine Navy (Marines) implicated in the February 23 to 26, 2008 so-called �aborted mutiny� against President Gloria Macapagal Arroyo as Commander-in-Chief of the Armed Forces of the Philippines.

In the Charge Sheet dated July 20, 2006, petitioner and others were indicated for violation of (1) Article of War (AW) 67 � Attempting to create or begin, excite, cause or join a mutiny (2) AW 65 � Willfully Disobeying Superior Officer (3) AW 96 � Conduct Unbecoming an Officer and Gentleman and (4) AW 97 � Conduct Prejudicial to Good order and Military Discipline for allegedly planning to withdraw their support from the President.

A PRE-TRIAL Investigation Panel (PTIP) was created and pre-trial investigation commenced. Subsequently, the PTIP submitted its pre-trial Investigation Report (PTIP) recommending the dismissal of the charges for violation of AW 67 against all the accused officers for lack of factual or legal bases and the dismissal of the charges for violation of AW 65 and 96 as against petitioner.

The respondent AFP Chief of Staff referred the PTIR to his staff Judge Advocate who reserved the PTIR and recommended the referral of the charges against petitioner and his co-accused to a court-martial. Consequently, the AFP Chief of Staff issued its first challenged order dated November 17, 2006, directing the creation of a general court- martial to try the 30- accused military officers, including petitioner, as originally charged.

Displeased, petitioner evaluated the matter to the CA through a petition for certiorari And prohibition under Rule 65 of the Rules of the Court with prayer for Temporary Restraining Order and writ of preliminary injunction challenging the validity of the following:

1)	Memorandum dated November 17, 2006 issued by Gen. Esperon, directing the Creation of the special general court martial;
2)	Letter-Order No. 758 dated November 24, 2006 issued by Adjutant General AFP Commodore Paterno E. Labiano, detailing the president and members to compose the respondent Special General Court-Martial No. 2 (SGCM NO. 2);
3)	Notice of Hearing dated December 5, 2006 to petitioner Col. Querubin and 29 other officers of the AFP for the trial of the charges against them on December 14, 2006; and
4)	Charge Street dated July 20, 2006 signed by Capt. Armado P. Paredes, indicating petitioner Col. Querubin, among others, with Violations of AW 65 (Willfully Disobeying Superior Officer), AW 67 (Attempting to create or Begin, Excite, Cause or join a Mutiny), AW 96 (Conduct Unbecoming an Officer and Gentlemen) and AW 97 (Conduct Prejudicial to Good Order and Military Discipline).

Before the CA, petitioner posited that respondents AFP Chief of Staff and SGCM No. 2 acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction in handing out the aforesaid issuances despite the PTIP�s recommendation of dismissal of the charges.

On May 23, 2007 the CA rendered the herein challenged decision dismissing the petition for certiorari and prohibition under Rule 65 on the Grounds that: (a) the same cannot prosper because the referral of the charges by respondent AFP Chief of Staff Involves the exercise of judgment and discretion which cannot be questioned through a petition for certiorari; and (b) petitioner�s assertion that he will not be accorded a fair trial is purely speculative.

Hence, the present petition.

Petitioner is an officer of the Philippine Navy (Marines) with the rank of Colonel. As such, the is subject to military law pursuant to Article 2 to Commonwealth Act. No. 408, otherwise known as the Articles of War.

Regardless of the name given to SGCM No. 2, it is apparent from the records that the charges against petitioner and his co-accused were referred to a general court-martial. The Pre-Trial Advice of the Office of the Judge Advocate General recommended the referral of the case to a general court-martial. The memorandum dated November 17, 2006 issued by the office of the AFP Chief of Staff stated as its subject the �Creation of a General Court Martial.� Letter Order No. 758 dated November 24, 2006 included in the Composition of the courts-martial, a law member, as required by Article 8 of the Articles of War for general courts-martial. Moreover, the maximum penalties imposable for the charges against petitioner and the others were within the jurisdiction of a general court- martial.

The Article of War (AW) 8 expressly empowers the AFP of Staff, among Others, to appoint general courts-martial, to wit:

Art. 8. General courts-martial. � The president of the Philippines, the Chief of Staff of Armed Forces of the Philippines, the Chief of the Constabulary and, when empowered by the President, the commanding officer of a major command or task force, the commanding officer of a division, the commanding officer of a military area, the superintendent of the Military Academy, the commanding officer of a separate brigade or body of troops may appoint general courts-martial; but when any such commander is the accuser or the prosecutor of the person or persons to be tried, the court shall be appointed by superior competent authority.

The authority appointing court-martial shall detail as one of the members thereto a member of the bar, hereafter called law member, who shall be an officer of the Judge Advocate General�s Service or an officer of some other branch of the service who is a member of the bar and certified buy the judge

Advocate General to be qualified for such detail. No general court-martial shall Receive evidence or vote upon its findings or sentence in the absence of the law member regularly detailed. The law member, in addition to his duties as a member, Shall perform such other duties as the President made by regulations prescribe. (emphasis supplied)

xxx xxx xxx

The CA correctly ruled the referral of changes to a court-martial involves the exercise of judgment and discretion by the AFP Chief of Staff. A petition for certiorari, in order to prosper, must be based on jurisdictional grounds because , as long as the will amount to nothing more than an error of judgment which may be reviewed or corrected only by appeal. (Jalandoni v. Drillon, 327 SCRA 107[2001])

Moreover, the writ of prohibition is resorted to prevent inferior courts, corporation, boards or persons from uprising power or exercising jurisdiction which they have not been vested by law. (Gonzales, et al. v. Abaya, 498 SCRA 445 [2006]) Since the AFP Chief of Staff undeniably has authority to convene a general court-martial and SGCM No. 2 has jurisdiction over the changes filed against petitioner under the Articles of War, a writ of prohibition cannot be issued to prevent said court-martial from exercising its jurisdiction. Consequently, the petition for certiorari and prohibition was properly dismissed by the CA.

Anent petitioner�s assertion that he would not be accorded a fair trial, we uphold the CA�s finding that the same is purely speculative and therefore untenable. The AFP Chief of Staff is not the accuser, prosecutor or judge in SGCM No. 2. He merely convened the court-martial in his capacity as such officer, and his role thus far has been limited to that � appointing or convening the court-martial. Other officers would prosecute the charges and appointing or convening the court-martial. Other officer would prosecute the charges and render the decision in SGCM No. 2. Petitioner�s expectation that the outcome of the court- martial will not be in favor cannot support his claim of bias since prejudice cannot be presumed. As the CA correctly held, it is not justifiable for petitioner to conceive, much less presume, that the reviewing authorities, i.e. the staff judge advocates, by whom petitioner�s hypothetical conviction would be reviewed before it is submitted to the AFP Chief of Staff for action by the President, would all be intensive to great principles of justice and violate their respective obligations to act fairly and impartially in the premises. Innocence, not wrongdoing, is to be presumed. The presumption of innocence includes that of good faith, fair dealing and honesty. The presumption is accorded to every official of the land in the performance of his public duty. (Aquino Jr. v. Military Commission No.2, 63 SCRA 546[1975])

Nether does the fact that a general court-martial was still convened despite the PTIP�s recommendation of dismissal of charges adequately support petitioner�s claim of an unfair trial, considering the contrary Pre-Trial Advice submitted to the AFP Chief of Staff by the staff Judge Advocate.

To begin with, the better accepted concept of pre-trial investigation in court-martial is that it is merely directory, not mandatory, and in no way affects the jurisdiction of a court- martial. Even a failure to conduct pre-trial investigation does not deprive a general court- martial of jurisdiction. ( Arula v. Espino, 28 SCRA 540, 569 [1969])

Moreover, the findings of the PTIP were recommendatory and non-binding on the appointing authority of the court-martial. This is evident from the Article 71 of the Articles of War and Section 35 of the AFP Manual for Courts Martial which both require the said appointing authority, after pre-trial investigation and before trial by court-martial, to refer the Charges to the Staff Judge Advocate for consideration and advice.these provisions state:

Article 71 of the Articles of War

Article 71. Changes; Action upon. � Changes and specifications must be signed by a person Subject to military law, and under oath either that he has personal knowledge of, or has investigated, The matters therein and all the same are true in fact, to the best of his knowledge and belief.

No changes will be referred to general court- martial for trial until after a thorough and impartial investigation thereof shall have been made. The investigation will include inquiries as to the matters set forth in said charges, form of changes, and what disposition of the case should be made in the interest of justice and discipline. At such investigation, full opportunities shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in hiss own behalf, either in defense or mitigation, and the investigating officer shall examine available witnesses requested by the accused. If the charges are forwarded such investigation, they shall accompanied by a statement of the substance of the testimony taken on both sides.

Before the trial of any charge by General court-martial, the appointing authority will refer it to his staff judge advocate for consideration and advice.

SEC. 35 b of the AFP Manual for Courts Martial

SEC. 35 b. Reference to Staff Judge Advocate � Subject to the provisions of the subsection (35b) reference to a staff judge advocate will be made and his advice submitted in such manner and form as the appointing authority may direct.

No appointing authority shall direct the trial of any charge by general court-martial until he has considered the advice of his staff judge advocate based on all the information relating to the case, including any report made under subsection 35-c, which is reasonably available at the time the trial is directed.

The advice of the staff judge advocate shall include a written and signed recommendation of the action to be taken by the appointing authority. (emphasis supplies)

In accordance with the above provisions, the findings of the PTIP contained in the PTIR were preferred to the Staff Judge Advocate who, after evaluating the evidence gathered during pre-trial investigation, reversed the findings of PTIP and instead recommended: (1) the disapproval of the PTIR, and (2) the referral of the charges against petitioner and his co-accused to a generalcourt-martial. Such recommendation of the Staff Judge Advocate was amply supported by evidence contained in the latter�s 171-page Pre- trial Advice, which reviewed in details the results of the pre-trial investigation. Thus, we find that no reversible error was committed by the CA in upholding the assailed issuances of the respondents.

WHEREFORE, the petition is hereby denied due course.�