G.R. No.

95136

October 3, 1991

RAFAEL BAYLOSIS and BENJAMIN DE VERA, petitioners,

vs.
HON. APOLONIO R. CHAVEZ, JR., RIZAL PROVINCIAL PROSECUTOR MAURO CASTRO, COL. VIRGILIO
SALDAJENO, HON. FRANKLIN M. DRILON, JR., HON. FIDEL V. RAMOS and GEN. RENATO DE VILLA,
respondents.
Romeo T. Capulong for Rafael Baylosis.
Arno V. Sanidad for Benjamin de Vera.
Efren H. Mercado for Marco Palo.

NARVASA, J.:p
The constitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is put at
issue in the special action of certiorari, prohibition and mandamus at bar. That provision punishes
with the penalty of reclusion perpetua, 1 any person who unlawfully manufacturers, deals in,
acquires, disposes of, or possesses any firearm, 2 "in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion."
This is the second such attack against the provision. The first was launched sometime in 1988
and eventually repelled in this Court's decision in Misolas vs. Panga, rendered on January 30,
1990. 3 The Court in that case declined to hold the provision unconstitutional, overruling such
arguments as that
a)
the questioned paragraph is violative of the principle of "substantive due process against
arbitrary law ... because it disregards the overwhelming weight of national as well as
international laws and jurisprudence behind the Hernandez (99 Phil 615) and Geronimo (100 Phil
90) rulings on the doctrine of absorption of common crimes in rebellion;"
b)
it has given rise to the practice of charging armed rebels or subversives with "qualified'
illegal possession of firearms instead of subversion or rebellion ... (because) (1) the former is
easier to prosecute than the latter, and (2) the former has a higher penalty ...;"
c)

it is a bill of attainder; and

d)

it allows a second jeopardy.

This second challenge to the constitutionality of said third paragraph of Section 1 of Presidential
Decree No. 1866 relies on essentially the same arguments as those put forth in support of the
first, petitioners' insistence to the contrary notwithstanding. Since it does not seem that the
passage of time has infused any validity into those arguments, they shall again be struck down
as specious, and the second constitutional challenge, like the first, repulsed.
The case at bar originated from an information filed in the Regional Trial Court at Pasig charging
petitioners Rafael Baylosis and Benjamin de Vera, together with one Marco Palo, with a violation
of PD 1866, 4 committed as follows:
That on or about the 29th day of March, 1988 in the Municipality of San Juan, Metro Manila,
Philippines ..., the above named accused, all known high ranking officers of the Communist Party
of the Philippines, and its military arm, the New Peoples Army, conspiring and confederating
together and mutually helping each other, did then and there willfully , unlawfully and feloniously

have in their possession, control and custody, in furtherance of, or incident to, or in connection
with the crimes of rebellion/subversion, the following, to wit:
A.

Firearms/Ammunition

One (1) AK 47 Automatic Rifle with M22N006726 with magazine and 9 rounds.
B.

Explosives

Three (3) pieces fragmentation hand grenades without first securing the necessary license or
permit thereof from a competent government authority.
Baylosis, de Vera, and Palo, filed a motion to quash the information on the following grounds,
viz.:
I.
THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE BECAUSE THEY ARE FOUNDED
ON AN UNCONSTITUTIONAL/REPEALED STATUTE.
B.
FOR THE SAME REASONS, THIS HONORABLE COURT IS DEVOID OF JURISDICTION TO TRY
THIS CASE.
After receiving the parties' arguments on the matter, the Trial Court denied the motion to quash,
by an extended Resolution dated April 24, 1990. A motion for reconsideration filed by Baylosis, et
al. was also denied in an Order dated July 12, 1990.
Baylosis and de Vera thereupon instituted the present action in this Court. Here, they plead for
the nullification and setting aside of the Trial Judge's Orders of April 24, 1990 and July 12, 1990;
the dismissal of Criminal Case No. 72705 or, alternatively, that the information therein be
considered as charging only simple rebellion; and that the public officials impleaded as
respondents the Rizal Public Prosecutor, the Secretary of Justice, the Secretary of National
Defense, the Chief of Staff of the Armed Forces of the Philippines, and the Special Military
Prosecutor be "restrained from further initiating, filing or prosecuting cases involving common
crimes against the petitioners."
What the petitioners advocate at bottom is that a doctrine laid down by jurisprudence or case
law is superior to a statute afterwards enacted by legislative authority; that decisions construing
certain specific provisions of one law are sufficient basis for a declaration of the
unconstitutionality of a subsequently enacted law. More specifically, they contend that the
rulings in People vs. Amado Hernandez 5 (reiterated in some ten other subsequent rulings),
Enrile vs. Salazar, 6 and Enrile vs. Amin 7 to the effect that the felony of rebellion defined and
penalized in the Revised Penal Code cannot, in accordance with Article 48 of the same Code, be
complexed with the offense of murder, homicide, arson, or other crimes committed in connection
with, or on the occasion or in furtherance of, rebellion render invalid, as unconstitutional,
Section 1 (3) of Presidential Decree No. 1866, as amended.
The petitioners further posit the unconstitutionality of the challenged provision because
"repugnant to the provisions of the 1987 Constitution, which guarantee full respect for human
rights, equal protection of the laws, due process, right to bail, protection against double jeopardy
and from cruel, degrading or inhuman punishment, and supremacy of civilian authority over the
military."
PD 1866 was enacted on June 29, 1983 8 by the late President Marcos in the exercise of his
legislative powers under the 1973 Constitution, with the avowed purpose, indicated in its title, to
codify "the laws on illegal/unlawful possession, manufacture, dealing in, acquisition or
disposition, of firearms, ammunition or explosives or instruments used in the manufacture of
firearms, ammunition or explosives; and disposing stiffer penalties for certain violations thereof

and for relevant purposes." The section (numbered 1) containing the allegedly unconstitutional
provision 9 reads as follows:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. The penalty of reclusion temporal in its maximum period to reclusion perpetua
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or
possess any firearm, part of firearm, ammunition or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes
of rebellion, insurrection or subversion, the penalty of death shall be imposed.
The penalty reclusion temporal in its maximum period to reclusion perpetua shall be imposed
upon the owner, president, manager, director or other responsible officer of any public or private
firm, company, corporation or entity, who shall wilfully or knowingly allow any of the firearms
owned by such firm, company, corporation or entity to be used by any person found guilty of
violating the provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall carry any licensed
firearm outside his residence without legal authority therefor.
It is worthy of note that under this section
1)
simple possession of firearm without license or lawful authority (or unlawful manufacture,
dealing in, acquisition, or disposal of any firearm, part of firearm, ammunition or machinery, tool
or instrument used or intended to be used in the manufacture of any firearm or ammunition),
without more, is punished by reclusion temporal maximum to reclusion perpetua a penalty
that, to be sure, is heavier than prision mayor, which is the penalty prescribed for rebellion or
insurrection by Article 135 of the Revised Penal Code;
2)
indeed, even if the firearm be licensed but is brought by the possessor outside of his
residence without authority, the penalty imposed for the act is prision mayor, the same sanction
as for rebellion;
3)

the penalty is however increased to death (now reclusion perpetua) 10 if

a) the unlicensed firearm is used in the commission of murder or homicide, or

b) the unlicensed firearm (or part thereof, or ammunition or machinery, tool or instrument in the
manufacture of any firearm or ammunition) is possessed, dealt in, acquired, disposed of or
possessed in furtherance of, or incident to, or in connection with the crimes of rebellion,
insurrection or subversion.
Equally noteworthy is that the same PD 1866, as amended, 11 also defines as a crime punishable
by reclusion temporal in its maximum period to reclusion perpetua, the act of any person
... who shall unlawfully manufacture, assemble, deal in, acquire, dispose or possess handgrenade(s), rifle grenade(s), and other explosives, including but not limited to "philbox bombs
(sic)," "molotov cocktail bomb," "firebombs," or other incendiary devices capable of producing
destructive effect on contiguous objects or causing injury or death to any person.

In other words, the mere possession of the weapons (or the unlawful manufacture or assembly
thereof, or dealing in, acquisition or disposal thereof) is also punished by reclusion temporal
maximum to reclusion perpetua, a penalty higher than that imposed for rebellion or insurrection,
prision mayor, supra.
But the even higher penalty of death (now reclusion perpetua) is imposed if the aforementioned
explosives, detonation agents or incendiary devices
1)
are used in the commission of any of the crimes defined in the Revised Penal Code, and
this results in the death of any person or persons; or
2)
are manufactured, assembled, dealt in, acquired, disposed of or possessed "in furtherance
of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion ..."
It is of no little significance that the petitioners do not condemn these other provisions of Section
1 and 3 defining crimes also involving possession or manufacturing and/or use of firearms,
ammunition and explosives, and penalizing them by reclusion temporal maximum to reclusion
perpetua, or even by death as being unconstitutionally infirm because imposing cruel or
unusual punishment, or violative of due process, or otherwise.
What they say is that "laws and jurisprudence on political crimes are intended, and should
always be interpreted, as favoring the political offender" since "political crimes are committed by
the best of patriots," a theory that, it is said, runs counter to the Misolas decision 12 and impels
re-examination of the latter. What they condemn is the imposition of such heavy penalties on the
crime of possession, manufacture or use of firearms or explosives if committed "in furtherance
of, or incident to, or in connection with the crimes of rebellion, insurrection or subversion," as if
by some juridic alchemy, relation to rebellion or subversion works a transformation in the nature
of the crimes in question. The connection, in other words, as the petitioners unabashedly affirm,
is that the act of illicitly possessing or using a firearm is ennobled and mitigated by its being
connected with an attempt or a publicly asserted intention to overthrow the Government; that
killers, arsonists, terrorists should not be treated as "common criminals," i.e., condemned and
punished as the killers, arsonists or terrorists that they are, if they commit their acts of violence
and destruction in the name of "the Revolution." This is sophistry, totally unacceptable under the
constitutional scheme of things in this country. It is a theory which has never been and should
never be sanctioned by this Court. It is a proposition that is not in essence defensible, specially in
the context of contemporary events. 13
The petitioners further theorize that Section 1 (3) of PD 1866 is invalid because it gives the
public prosecutor an option not to file a case for rebellion and instead file as many crimes for
murder, frustrated murder, etc. as might have been perpetrated in furtherance of, or incident to,
or in connection with rebellion, insurrection or subversion. The argument is not tenable. The fact
is that the Revised Penal Code treats rebellion or insurrection as a crime distinct from murder,
homicide, arson, or other felonies that might conceivably be committed in the course of a
rebellion. It is the Code, therefore, in relation to the evidence in the hands of the public
prosecutor, and not the latter's whim or caprice, which gives the choice. The Code allows, for
example, separate prosecutions for either murder or rebellion, although not for both where the
indictment alleges that the former has been committed in furtherance of or in connection with
the latter. Surely, whether people are killed or injured in connection with a rebellion, or not, the
deaths or injuries of the victims are no less real, and the grief of the victims' families no less
poignant.
Moreover, it certainly is within the power of the legislature to determine what acts or omissions
other than those set out in the Revised Penal Code or other existing statutes are to be
condemned as separate, individual crimes and what penalties should be attached thereto. The
power is not diluted or improperly wielded simply because at some prior time the act or omission

was but an element or ingredient of another offense, or might usually have been connected with
another crime.
The interdict laid in Hernandez, Enrile and the other cases cited is against attempts to complex
rebellion with the so called "common" crimes committed in furtherance, or in the course, thereof;
this, on the authority alone of the first sentence of Article 48 of the Revised Penal Code. Stated
otherwise, the ratio of said cases is that Article 48 cannot be invoked as the basis for charging
and prosecuting the complex crime of rebellion with murder, etc., for the purpose of obtaining
imposition of the penalty for the more serious offense in its maximum period (in accordance with
said Art. 48). Said cases did not indeed they could not and were never meant to proscribe
the legislative authority from validly enacting statutes that would define and punish, as offenses
sui generis crimes which, in the context of Hernandez, et al. may be viewed as a complex of
rebellion with other offenses. There is no constitutional prohibition against this, and the Court
never said there was. What the Court stated in said cases about rebellion "absorbing" common
crimes committed in its course or furtherance must be viewed in light of the fact that at the time
they were decided, there were no penal provisions defining and punishing, as specific offenses,
crimes like murder, etc. committed in the course of as part of a rebellion. This is no longer true,
as far as the present case is concerned, and there being no question that PD 1866 was a valid
exercise of the former President's legislative powers. Thus, Misolas, 14 to the effect that charging
the qualified offense of illegal possession of firearms under PD 1866 does not charge the
complex crime of subversion with illegal possession of firearms, and hence does not run counter
to Hernandez, et al., is good and correct rule and is applicable here.
In Enrile vs. Salazar, the Court intimated that the remedy against the perceived lightness of the
penalty for rebellion was not to be sought from the courts, but by legislation. It may not
unreasonably be supposed that the purpose of PD 1866 appears to be precisely to remedy that
perceived lenity of the penalty prescribed by the Revised Penal Code for rebellion or insurrection
and the legal impossibility, pronounced by this Court of complexing that felony with other crimes
punished by higher penalties in accordance with Article 48 of the same Code.
It is next argued that the proviso in question is unconstitutional because if inflicts on the
convicted felon a cruel or unusual punishment, considering that the Revised Code penalizes
rebellion or subversion only by prision mayor. The penalty fixed in said challenged section is, it is
contended, flagrantly and plainly oppressive, greatly disproportionate to the offense, and
shocking to the people's sense of justice. The result, it is further argued, is that the right to bail is
denied under PD 1866 when the act thereby punished is only an ingredient of simple rebellion or
subversion (which are bailable offenses) under the Revised Penal Code.
It is well settled that as far as the constitutional prohibition goes, it is not so much the extent as
the nature of the punishment that determines whether it is, or is not, cruel and unusual and that
sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if within
statutory limits. 15 As pointed out by a brother in the Court, a noted authority on Constitutional
Law, this Court had held (in People vs. Dionisio, 22 SCRA 1299), "that mere severity does not
constitute cruel and unusual punishment. Reiterating the rule first announced in People vs.
Estoista (93 Phil. 674), it declared that it takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the Constitution ... to come under the ban,
the punishment must be 'flagrantly and plainly oppressive' 'wholly disproportionate to the nature
of the offense as to shock the moral sense of the community.'" 16 The same noted author further
points out that "a penalty not normally proportionate to the offense may be imposed in some
instances without violation of the Constitution. ... (as) for example, where the offense has
become so rampant as to require the adoption of a more effective deterrent, like the stealing of
jeeps or coconuts, which is punished by the Revised Penal Code as qualified theft" 17 or, it
may be added, like such crimes as assassinations, bombings and robberies, which are committed
nowadays with frightening frequency and seeming impunity with the use of high-powered
weapons, explosives or similar devices, whether in connection with or in furtherance or
pursuance of, rebellion or subversion, or not.

It bears repeating in this connection that mere possession of a firearm without license or lawful
authority, 18 without more, is punished by reclusion temporal maximum to reclusion perpetua;
and that the use of an unlicensed firearm in the commission of murder of homicide is punished
by death (now reclusion perpetua 19 ), yet there is no challenge to these penalties as being cruel
or unusual.
The petitioners next proffer the argument that the Revised Penal Code punishes the crime of
rebellion or insurrection (including the "common crimes" of murder, homicide, arson, etc. therein
absorbed) only with the penalty of prision mayor. Comparisons, as the saying goes, are odious;
and in this case, the attempt to compare PD 1866 with the Revised Penal Code is unwarranted.
That there is a difference in penalty between the two laws does not necessarily establish that the
heavier penalty imposed by one of said laws is excessive, disproportionate, or "cruel or unusual."
For it might be argued, too, and certainly not without more than a modicum of validity, that the
penalty in the Penal Code for rebellion may be regarded as unduly light given the conditions now
prevailing in the country. In fact, no lack of commensuration may be pleaded if the avowed
premises of PD 1866 (particularly the first, second and fifth whereas clauses of the preamble) are
taken into account, viz.:
1)
there has been an upsurge of crimes vitally affecting public order and safety (including,
not to say specially, offenses of rebellion or subversion) due to the proliferation of illegally
possessed and manufactured firearms, ammunition and explosives;
2)
these criminal acts have resulted in loss of human lives damage to property and
destruction of valuable resources of the country;
3)
there are some provisions in ... (the) and laws and presidential decrees which must be
updated and revised in order to more effectively deter violators of the law on firearms,
ammunition and explosives.
The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible
or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the
killings and acts of destruction and terrorism that they perpetrate, unfortunately continue
unabated despite the best efforts that the Government authorities are exerting, although it may
be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to
the security of the state. The need for more effective measures against these nefarious activities,
including of course more stringent laws and more rigorous law-enforcement, cannot be gainsaid.
It is also argued that PD 1866 offends against the equal protection clause of the Constitution in
that government prosecutors may arbitrarily choose those they want to prosecute under said law
and those under Article 135 of the Revised Penal Code (or RA 1700, the Anti-Subversion Act). The
argument is unimpressive. It is not much different from saying that a suspected killer is denied
the equal protection of the laws because the prosecutor charges him with murder, not homicide,
both crimes, though essentially consisting in the taking of human life, being punished with
different penalties under separate provisions of the penal code. As already stressed, it is the
prerogative of the legislature of the determine what acts or omissions shall be deemed criminal
offenses and what sanctions should attach to them. Certainly, the public prosecutors should have
the option to ascertain which prosecutions should be initiated on the basis of the evidence at
hand. That a criminal act may have elements common to more than one offense does not rob the
prosecutor of that option (or discretion) and mandatorily require him to charge the lesser offense
although the evidence before him may warrant prosecution of the more serious one. Now, if
government prosecutors make arbitrary choices of those they would prosecute under a particular
law, excluding from the indictment certain individuals against whom there is the same evidence
as those impleaded, the fault is not in the law but in the prosecutors themselves whose duty it is
to file the corresponding information or complaint against all persons who appear to be liable for
the offense involved, 20 a duty that should be performed responsibly, without discrimination,

arbitrariness or oppression. If that duty is not performed evenhandedly, the persons aggrieved
are not without remedy. They may avail of the remedy of mandamus of compel compliance with
that duty by the prosecutors concerned. 21
The petitioners' invocation of the doctrine of double jeopardy as an argument against the
constitutionality of PD 1866 is equally futile. They maintain that a person held liable under PD
1866 can still be made to answer subsequently for rebellion. The argument is here disposed of by
simply adverting to the resolution of that self-same contention in Misolas:
The right against double jeopardy is a matter which the accused may raise in a motion to quash
(Sec. 3[h], Rule 117). But, precisely, petitioner's motion to quash filed in the trial court did not
raise the issue of double jeopardy because it had not arisen. The Court cannot anticipated that
the opportunity for a second jeopardy will still arise if he is acquitted or convicted as charged
under P.D. 1866.
Moreover, even if such a subsequent or second jeopardy does arise, P.D. No. 1866 will not be
rendered unconstitutional. That an accused will be exposed to double jeopardy if he is
prosecuted under another law is not a ground to nullify that law. Double jeopardy is merely a
defense that an accused may raise to defeat a subsequent prosecution or conviction for the
same offense.
WHEREFORE, the petitioner is DENIED for lack of merit, with costs against petitioners.
SO ORDERED.

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,
vs.
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 Generals Office (JAGO), Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the Petition for Prohibition (with prayer for a temporary restraining order)
filed by the above-named members of the Armed Forces of the Philippines (AFP), herein
petitioners, against the AFP Chief of Staff and the Judge Advocate General, respondents.
The facts are:
On July 26, 2003, President Gloria Macapagal Arroyo received intelligence reports that some
members of the AFP, with high-powered weapons, had abandoned their designated places of
assignment. Their aim was to destabilize the government. The President then directed the AFP
and the Philippine National Police (PNP) to track and arrest them.

On July 27, 2003 at around 1:00 a.m., more than 300 heavily armed junior officers and enlisted
men of the AFP mostly from the elite units of the Armys Scout Rangers and the Navys Special
Warfare Group entered the premises of the Oakwood Premier Luxury Apartments on Ayala
Avenue, Makati City. They disarmed the security guards and planted explosive devices around
the building.
Led by Navy Lt. (SG) Antonio Trillanes IV, the troops sported red armbands emblazoned with the
emblem of the "Magdalo" faction of the Katipunan. 1 The troops then, through broadcast media,
announced their grievances against the administration of President Gloria Macapagal Arroyo,
such as the graft and corruption in the military, the illegal sale of arms and ammunition to the
"enemies" of the State, and the bombings in Davao City intended to acquire more military
assistance from the US government. They declared their withdrawal of support from their
Commander-in-Chief and demanded that she resign as President of the Republic. They also called
for the resignation of her cabinet members and the top brass of the AFP and PNP.
About noontime of the same day, President Arroyo issued Proclamation No. 427 declaring a state
of rebellion, followed by General Order No. 4 directing the AFP and PNP to take all necessary
measures to suppress the rebellion then taking place in Makati City. She then called the soldiers
to surrender their weapons at five oclock in the afternoon of that same day.
In order to avoid a bloody confrontation, the government sent negotiators to dialogue with the
soldiers. The aim was to persuade them to peacefully return to the fold of the law. After several
hours of negotiation, the government panel succeeded in convincing them to lay down their arms
and defuse the explosives placed around the premises of the Oakwood Apartments. Eventually,
they returned to their barracks.
A total of 321 soldiers, including petitioners herein, surrendered to the authorities.
The National Bureau of Investigation (NBI) investigated the incident and recommended that the
military personnel involved be charged with coup detat defined and penalized under Article 134A of the Revised Penal Code, as amended. On July 31, 2003, the Chief State Prosecutor of the
Department of Justice (DOJ) recommended the filing of the corresponding Information against
them.
Meanwhile, on August 2, 2003, pursuant to Article 70 of the Articles of War, respondent General
Narciso Abaya, then AFP Chief of Staff, ordered the arrest and detention of the soldiers involved
in the Oakwood incident and directed the AFP to conduct its own separate investigation.
On August 5, 2003, the DOJ filed with the Regional Trial Court (RTC), Makati City an Information
for coup detat 2 against those soldiers, docketed as Criminal Case No. 03-2784 and eventually
raffled off to Branch 61, presided by Judge Romeo F. Barza. 3 Subsequently, this case was
consolidated with Criminal Case No. 03-2678, involving the other accused, pending before
Branch 148 of the RTC, Makati City, presided by Judge Oscar B. Pimentel.
On August 13, 2003, the RTC directed the DOJ to conduct a reinvestigation of Criminal Case No.
03-2784.
On the same date, respondent Chief of Staff issued Letter Order No. 625 creating a Pre-Trial
Investigation Panel tasked to determine the propriety of filing with the military tribunal charges
for violations of the Articles of War under Commonwealth Act No. 408, 4 as amended, against the
same military personnel. Specifically, the charges are: (a) violation of Article 63 for disrespect
toward the President, the Secretary of National Defense, etc., (b) violation of Article 64 for
disrespect toward a superior officer, (c) violation of Article 67 for mutiny or sedition, (d) violation
of Article 96 for conduct unbecoming an officer and a gentleman, and (e) violation of Article 97
for conduct prejudicial to good order and military discipline.

Of the original 321 accused in Criminal Case No. 03-2784, only 243 (including petitioners herein)
filed with the RTC, Branch 148 an Omnibus Motion praying that the said trial court assume
jurisdiction over all the charges filed with the military tribunal. They invoked Republic Act (R.A.)
No. 7055. 5
On September 15, 2003, petitioners filed with the Judge Advocate Generals Office (JAGO) a
motion praying for the suspension of its proceedings until after the RTC shall have resolved their
motion to assume jurisdiction.
On October 29, 2003, the Pre-Trial Investigation Panel submitted its Initial Report to the AFP Chief
of Staff recommending that the military personnel involved in the Oakwood incident be charged
before a general court martial with violations of Articles 63, 64, 67, 96, and 97 of the Articles of
War.
Meanwhile, on November 11, 2003, the DOJ, after conducting a reinvestigation, found probable
cause against only 31 (petitioners included) of the 321 accused in Criminal Case No. 03-2784.
Accordingly, the prosecution filed with the RTC an Amended Information. 6
In an Order dated November 14, 2003, the RTC admitted the Amended Information and dropped
the charge of coup detat against the 290 accused.
Subsequently, or on December 12, 2003, the Pre-Trial Investigation Panel submitted its Final PreTrial Investigation Report 7 to the JAGO, recommending that, following the "doctrine of
absorption," those charged with coup detat before the RTCshould not be charged before the
military tribunal for violation of the Articles of War.
For its part, the RTC, on February 11, 2004, issued an Order 8 stating that "all charges before the
court martial against the accusedare hereby declared not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup detat." The trial court then proceeded
to hear petitioners applications for bail.
In the meantime, Colonel Julius A. Magno, in his capacity as officer-in-charge of the JAGO,
reviewed the findings of the Pre-Trial Investigation Panel. He recommended that 29 of the officers
involved in the Oakwood incident, including petitioners, be prosecuted before a general court
martial for violation of Article 96 (conduct unbecoming an officer and a gentleman) of the Articles
of War.
On June 17, 2004, Colonel Magnos recommendation was approved by the AFP top brass. The AFP
Judge Advocate General then directed petitioners to submit their answer to the charge. Instead
of complying, they filed with this Court the instant Petition for Prohibition praying that
respondents be ordered to desist from charging them with violation of Article 96 of the Articles of
War in relation to the Oakwood incident. 9
Petitioners maintain that since the RTC has made a determination in its Order of February 11,
2004 that the offense for violation of Article 96 (conduct unbecoming an officer and a gentleman)
of the Articles of War is not service-connected, but is absorbed in the crime of coup detat, the
military tribunal cannot compel them to submit to its jurisdiction.
The Solicitor General, representing the respondents, counters that R.A. No. 7055 specifies which
offenses covered by the Articles of War areservice-connected. These are violations of Articles 54
to 70, 72 to 92, and 95 to 97. The law provides that violations of these Articles are properly
cognizable by the court martial. As the charge against petitioners is violation of Article 96 which,
under R.A. No. 7055 is a service-connected offense, then it falls under the jurisdiction of the court
martial.

Subsequently, petitioners filed with this Court a Supplemental Petition raising the additional issue
that the offense charged before the General Court Martial has prescribed. Petitioners alleged
therein that during the pendency of their original petition, respondents proceeded with the PreTrial Investigation for purposes of charging them with violation of Article 96 (conduct unbecoming
an officer and a gentleman) of the Articles of War; that the Pre-Trial Investigation Panel then
referred the case to the General Court Martial; that "almost two years since the Oakwood
incident on July 27, 2003, only petitioner Lt. (SG) Antonio Trillanes was arraigned, and this was
done under questionable circumstances;" 10 that in the hearing of July 26, 2005, herein
petitioners moved for the dismissal of the case on the ground that they were not arraigned within
the prescribed period of two (2) years from the date of the commission of the alleged offense, in
violation of Article 38 of the Articles of War; 11 that "the offense charged prescribed on July 25,
2005;" 12 that the General Court Martial ruled, however, that "the prescriptive period shall end
only at 12:00 midnight of July 26, 2005;" 13 that "(a)s midnight of July 26, 2005 was approaching
and it was becoming apparent that the accused could not be arraigned, the prosecution suddenly
changed its position and asserted that 23 of the accused have already been arraigned;" 14 and
that petitioners moved for a reconsideration but it was denied by the general court martial in its
Order dated September 14, 2005. 15
In his Comment, the Solicitor General prays that the Supplemental Petition be denied for lack of
merit. He alleges that "contrary to petitioners pretensions, all the accused were duly arraigned
on July 13 and 18, 2005." 16 The "(r)ecords show that in the hearing on July 13, 2005, all the 29
accused were present" and, "(o)n that day, Military Prosecutor Captain Karen Ong Jags read the
Charges and Specifications from the Charge Sheet in open court (pp. 64, TSN, July 13, 2005)." 17
The sole question for our resolution is whether the petitioners are entitled to the writ of
prohibition.
There is no dispute that petitioners, being officers of the AFP, are subject to military law.
Pursuant to Article 1 (a) of Commonwealth Act No. 408, as amended, otherwise known as the
Articles of War, the term "officer" is "construed to refer to a commissioned officer." Article 2
provides:
Art. 2. Persons Subject to Military Law. The following persons are subject to these articles and
shall be understood as included in the term "any person subject to military law" or "persons
subject to military law," whenever used in these articles:
(a) All officers and soldiers in the active service of the Armed Forces of the Philippines or of the
Philippine Constabulary, all members of the reserve force, from the dates of their call to active
duty and while on such active duty; all trainees undergoing military instructions; and all other
persons lawfully called, drafted, or ordered into, or to duty or for training in the said service, from
the dates they are required by the terms of the call, draft, or order to obey the same.
Upon the other hand, Section 1 of R.A. No. 7055 reads:
SEC. 1. Members of the Armed Forces of the Philippines and other persons subject to military law,
including members of the Citizens Armed Forces Geographical Units, who commit crimes or
offenses penalized under the Revised Penal Code, other special penal laws, or local government
ordinances, regardless of whether or not civilians are co-accused, victims, or offended parties,
which may be natural or juridical persons, shall be tried by the proper civil court, except when
the offense, as determined before arraignment by the civil court, is service-connected, in which
case, the offense shall be tried by court-martial, Provided, That the President of the Philippines
may, in the interest of justice, order or direct at any time before arraignment that any such
crimes or offenses be tried by the proper civil courts.

As used in this Section, service-connected crimes or offenses shall be limited to those defined in
Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of Commonwealth Act No. 408, as
amended.
In imposing the penalty for such crimes or offenses, the court-martial may take into
consideration the penalty prescribed therefor in the Revised Penal Code, other special laws, or
local government ordinances.
Section 1 of R.A. No. 7055, quoted above, is clear and unambiguous. First, it lays down the
general rule that members of the AFP and other persons subject to military law, including
members of the Citizens Armed Forces Geographical Units, who commit crimes or offenses
penalized under the Revised Penal Code (like coup detat), other special penal laws, or local
ordinances shall be tried by the proper civil court. Next, it provides the exception to the general
rule, i.e., where the civil court, before arraignment, has determined the offense to be serviceconnected, then the offending soldier shall be tried by a court martial. Lastly, the law states an
exception to the exception, i.e., where the President of the Philippines, in the interest of justice,
directs before arraignment that any such crimes or offenses be tried by the proper civil court.
The second paragraph of the same provision further identifies the "service-connected crimes or
offenses" as "limited to those defined in Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97"
of the Articles of War. Violations of these specified Articles are triable by court martial. This
delineates the jurisdiction between the civil courts and the court martial over crimes or offenses
committed by military personnel.
Such delineation of jurisdiction by R.A. No. 7055 is necessary to preserve the peculiar nature of
military justice system over military personnel charged with service-connected offenses. The
military justice system is disciplinary in nature, aimed at achieving the highest form of discipline
in order to ensure the highest degree of military efficiency. 18 Military law is established not
merely to enforce discipline in times of war, but also to preserve the tranquility and security of
the State in time of peace; for there is nothing more dangerous to the public peace and safety
than a licentious and undisciplined military body. 19 The administration of military justice has
been universally practiced. Since time immemorial, all the armies in almost all countries of the
world look upon the power of military law and its administration as the most effective means of
enforcing discipline. For this reason, the court martial has become invariably an indispensable
part of any organized armed forces, it being the most potent agency in enforcing discipline both
in peace and in war. 20
Here, petitioners are charged for violation of Article 96 (conduct unbecoming an officer and a
gentleman) of the Articles of War before the court martial, thus:
All persons subject to military law, did on or about 27 July 2003 at Oakwood Hotel, Makati City,
Metro Manila, willfully, unlawfully and feloniously violate their solemn oath as officers to defend
the Constitution, the law and the duly-constituted authorities and abused 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. (Underscoring ours)
Article 96 of the Articles of War 21 provides:
ART. 96. Conduct Unbecoming an Officer and Gentleman. Any officer, member of the Nurse
Corps, cadet, flying cadet, or probationary second lieutenant, who is convicted of conduct
unbecoming an officer and a gentleman shall be dismissed from the service. (Underscoring ours)

We hold that the offense for violation of Article 96 of the Articles of War is service-connected.
This is expressly provided in Section 1 (second paragraph) of R.A. No. 7055. It bears stressing
that the charge against the petitioners concerns the alleged violation of their solemn oath as
officers to defend the Constitution and the duly-constituted authorities.Such violation allegedly
caused dishonor and disrespect to the military profession. In short, the charge has a bearing on
their professional conduct or behavior as military officers. Equally indicative of the "serviceconnected" nature of the offense is the penalty prescribed for the same dismissal from the
service imposable only by the military court.Such penalty is purely disciplinary in character,
evidently intended to cleanse the military profession of misfits and to preserve the stringent
standard of military discipline.
Obviously, there is no merit in petitioners argument that they can no longer be charged before
the court martial for violation of Article 96 of the Articles of War because the same has been
declared by the RTC in its Order of February 11, 2004 as "not service-connected, but rather
absorbed and in furtherance of the alleged crime of coup detat," hence, triable by said court
(RTC). The RTC, in making such declaration, practically amended the law which expressly vests in
the court martial the jurisdiction over "service-connected crimes or offenses." What the law has
conferred the court should not take away. It is only the Constitution or the law that bestows
jurisdiction on the court, tribunal, body or officer over the subject matter or nature of an action
which can do so. 22 And it is only through a constitutional amendment or legislative enactment
that such act can be done. The first and fundamental duty of the courts is merely to apply the
law "as they find it, not as they like it to be." 23 Evidently, such declaration by the RTC
constitutes grave abuse of discretion tantamount to lack or excess of jurisdiction and is,
therefore, void.
In Navales v. Abaya., 24 this Court, through Mr. Justice Romeo J. Callejo, Sr., held:
We agree with the respondents that the sweeping declaration made by the RTC (Branch 148) in
the dispositive portion of its Order dated February 11, 2004 that all charges before the courtmartial against the accused were not service-connected, but absorbed and in furtherance of the
crime of coup detat, cannot be given effect. x x x, such declaration was made without or in
excess of jurisdiction; hence, a nullity.
The second paragraph of the above provision (referring to Section 1 of R.A. No. 7055) explicitly
specifies what are considered "service-connected crimes or offenses" under Commonwealth Act
No. 408, as amended, also known as the Articles of War, to wit:
Articles 54 to 70:
Art. 54. Fraudulent Enlistment.
Art. 55. Officer Making Unlawful Enlistment.
Art. 56. False Muster.
Art. 57. False Returns.
Art. 58. Certain Acts to Constitute Desertion.
Art. 59. Desertion.
Art. 60. Advising or Aiding Another to Desert.
Art. 61. Entertaining a Deserter.

Art. 62. Absence Without Leave.

Art. 63. Disrespect Toward the President, Vice-President,
Congress of the Philippines, or Secretary of National
Defense.
Art. 64. Disrespect Toward Superior Officer.
Art. 65. Assaulting or Willfully Disobeying Superior Officer.
Art. 66. Insubordinate Conduct Toward Non-Commissioned Officer.
Art. 67. Mutiny or Sedition.
Art. 68. Failure to Suppress Mutiny or Sedition.
Art. 69. Quarrels; Frays; Disorders.
Art. 70. Arrest or Confinement.
Articles 72 to 92:
Art. 72. Refusal to Receive and Keep Prisoners.
Art. 73. Report of Prisoners Received.
Art. 74. Releasing Prisoner Without Authority.
Art. 75. Delivery of Offenders to Civil Authorities.
Art. 76. Misbehavior Before the Enemy.
Art. 77. Subordinates Compelling Commander to Surrender.
Art. 78. Improper Use of Countersign.
Art. 79. Forcing a Safeguard.
Art. 80. Captured Property to be Secured for Public Service.
Art. 81. Dealing in Captured or Abandoned Property.
Art. 82. Relieving, Corresponding With, or Aiding the Enemy.
Art. 83. Spies.
Art. 84. Military Property.Willful or Negligent Loss, Damage
or wrongful Disposition.
Art. 85. Waste or Unlawful Disposition of Military Property
Issued to Soldiers.

Art. 86. Drunk on Duty.

Art. 87. Misbehavior of Sentinel.
Art. 88. Personal Interest in Sale of Provisions.
Art. 88-A. Unlawful Influencing Action of Court.
Art. 89. Intimidation of Persons Bringing Provisions.
Art. 90. Good Order to be Maintained and Wrongs Redressed.
Art. 91. Provoking Speeches or Gestures.
Art. 92. Dueling.
Articles 95 to 97:
Art. 95. Frauds Against the Government.
Art. 96. Conduct Unbecoming an Officer and Gentleman.
Art. 97. General Article.
Further, Section 1 of Rep. Act No. 7055 vests on the military courts the jurisdiction over the
foregoing offenses. x x x.
It is clear from the foregoing that Rep. Act No. 7055 did not divest the military courts of
jurisdiction to try cases involving violations of Articles 54 to 70, Articles 72 to 92, and Articles 95
to 97 of the Articles of War as these are considered "service-connected crimes or offenses." In
fact, it mandates that these shall be tried by the court-martial.
Moreover, the observation made by Mr. Justice Antonio T. Carpio during the deliberation of this
case is worth quoting, thus:
The trial court aggravated its error when it justified its ruling by holding that the charge of
Conduct Unbecoming an Officer and a Gentleman is absorbed and in furtherance to the alleged
crime of coup detat. Firstly, the doctrine of absorption of crimes is peculiar to criminal law and
generally applies to crimes punished by the same statute, 25 unlike here where different statutes
are involved. Secondly, the doctrine applies only if the trial court has jurisdiction over both
offenses. Here, Section 1 of R.A. 7055 deprives civil courts of jurisdiction over service-connected
offenses, including Article 96 of the Articles of War. Thus, the doctrine of absorption of crimes is
not applicable to this case.
Military law is sui generis (Calley v. Callaway, 519 F.2d 184 [1975]), applicable only to military
personnel because the military constitutes an armed organization requiring a system of discipline
separate from that of civilians (see Orloff v. Willoughby, 345 U.S. 83 [1953]). Military personnel
carry high-powered arms and other lethal weapons not allowed to civilians. History, experience,
and the nature of a military organization dictate that military personnel must be subjected to a
separate disciplinary system not applicable to unarmed civilians or unarmed government
personnel.
A civilian government employee reassigned to another place by his superior may question his
reassignment by asking a temporary restraining order or injunction from a civil court. However, a
soldier cannot go to a civil court and ask for a restraining or injunction if his military commander

reassigns him to another area of military operations. If this is allowed, military discipline will
collapse.
xxx
This Court has recognized that courts-martial are instrumentalities of the Executive to enable the
President, as Commander-in-Chief, to effectively command, control, and discipline the armed
forces (see Ruffy v. Chief of Staff, 75 Phil. 875 [1946], citing Winthrops Military Law and
Precedents, 2nd edition, p. 49). In short, courts-martial form part of the disciplinary system that
ensures the Presidents control, and thus civilian supremacy, over the military. At the apex of this
disciplinary system is the President who exercises review powers over decisions of courts-martial
(citing Article 50 of the Articles of War; quoted provisions omitted).
xxx
While the Court had intervened before in courts-martial or similar proceedings, it did so sparingly
and only to release a military personnel illegally detained (Ognir v. Director of Prisons, 80 Phil.
401 [1948] or to correct objectionable procedures (Yamashita v. Styer, 75 Phil. 563 [1945]). The
Court has never suppressed court-martial proceedings on the ground that the offense charged is
absorbed and in furtherance of another criminal charge pending with the civil courts. The Court
may now do so only if the offense charged is not one of the service-connected offenses specified
in Section 1 of RA 7055. Such is not the situation in the present case.
With respect to the issue of prescription raised by petitioners in their Supplemental Petition,
suffice it to say that we cannot entertain the same. The contending parties are at loggerheads as
to (a) who among the petitioners were actually arraigned, and (b) the dates of their arraignment.
These are matters involving questions of fact, not within our power of review, as we are not a
trier of facts. In a petition for prohibition, such as the one at bar, only legal issues affecting the
jurisdiction of the tribunal, board or officer involved may be resolved on the basis of the
undisputed facts. 26
Clearly, the instant petition for prohibition must fail. The office of prohibition is to prevent the
unlawful and oppressive exercise of authority and is directed against proceedings that are done
without or in excess of jurisdiction, or with grave abuse of discretion, there being no appeal or
other plain, speedy, and adequate remedy in the ordinary course of law. 27 Stated differently,
prohibition is the remedy to prevent inferior courts, corporations, boards, or persons from
usurping or exercising a jurisdiction or power with which they have not been vested by law. 28
In fine, this Court holds that herein respondents have the authority in convening a court martial
and in charging petitioners with violation of Article 96 of the Articles of War.
WHEREFORE, the instant petition for prohibition is DISMISSED.
SO ORDERED.