August 2006 - Philippine Supreme Court Decisions/Resolutions
Philippine Supreme Court Jurisprudence
CONCURRING OPINION - CALLEJO, SR., J.: G.R. No. 164007 - LT. (SG) EUGENE GONZALES, ET AL. vs GEN. NARCISO ABAYA, ET AL.
EN BANC
[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, v. 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.
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?cralawlibrary
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?cralawlibrary
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?cralawlibrary
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"?cralawlibrary
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?cralawlibrary
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?cralawlibrary
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.
Endnotes:
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)
