The (nagging) Trillanes question

What is important to remember is that the relevant law on the matter, Republic Act No.7055, “AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY” clearly provides that “Members of the Armed forces of the Philippines and other persons subject to military law” shall either be tried by the proper civil courts or by court-martial, not by BOTH.

R. A. 7055 reads in part:

Section 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.

I hold that R. A. 7055 is a reaffirmation of the long-standing doctrine in People v. Hernandez (99 Phil. 515 [1956]), particularly where the same act or omission that may have given rise to “conduct unbecoming an officer and a gentlemen” under Commonwealth Act No. 408 (otherwise known as the Articles of War) are “mere ingredients” or “part and parcel” of the political crime of coup d’etat as defined by the Revised Penal Code.

The injunction under R. A. 7055 against proceeding both ways is simply commonsensical. A different reading will allow an absurd and arbitrary situation where a civil court trying the coup d’etat acquits a member of the armed forces while the military tribunal convicts the same person of mutiny. To enforce the decision of the court martial under such a scenario notwithstanding the acquittal by the civil court is to impair civilian supremacy over the military against the mandate not only of R. A. 7055 but the Constitution itself.

Through the President’s alter ego, the Department of Justice, a decision has been made that Trillanes et al be tried by the proper civil court - a decision that has the effect of precluding the military court from further proceeding with the trial of the accused on charges that are “mere ingredients” or “part and parcel” of the underlying offense of coup d’etat.

On the other hand, in a tripartite system, the criminalization or de-criminalization of certain social behavior belongs to the province of congress, not the president or the courts. Amnesty or presidential pardons are basically checks and balances mechanisms upon that policymaking authority of congress. On the other hand, delegated powers are subject to the LAST SAY of the public, expressed either peaceably and intra-systemically in an election or as in EDSA I by abolishing the legal and constitutional order or the existing government.

In the last elections, the people, the source of all authorities, have spoken: navy officer Trillanes and the Magdalo group have committed not criminal and anti-social behavior but patriotic acts, in the same manner that Vice President Gloria Arroyo, General Angelo Reyes and Chief Justice Davide had committed essentially the same acts or behavior during the uprising that was EDSA II.

It may be worth mentioning that certain political crimes and other politically-motivated behavior are criminalized only at the convenience of the regime in power. In Singapore, for example, an act which produces a mere tendency (therefore criminal intent is irrelevant) to excite disaffection with the government is criminalized. The US had once a draconian anti-political dissent legislation, the anti-sedition law.

But even the American founding fathers (from whose political thoughts Filipinos have borrowed liberally) believed that to secure their inalienable rights any instituted government destructive of such ends are subject to “the right of the people to alter or to abolish it, and to institute new government.” (Declaration of Independence)

Trillanes was simply stating the obvious when in interviews during the electoral campaign he said: “… rebellion is justified if the government goes against the interest of the people. That’s in the preamble of the UN Declaration of Human Rights. It’s also in the US Declaration of Independence.”

Had Trillanes and the Magdalo group succeeded in instituting a new government, it would have been equally convenient for them to de-criminalize their acts and maybe even criminalize ex post facto the acts of the supporters of the deposed regime. They could also pass more laws to secure their hold to political power or establish a new constitution redefining and/or broadening the scope of their authorities.

Political crimes are not depraved or anti-social acts (as rapes or pedophilias are) especially from the standpoint of the persons (e.g., George Washington, Andres Bonifacio or Fidel Castro) engaged in them; in the final analysis, these expressions of dissent, violent or otherwise, are not simply statutory or constitutional issues but questions that the people in their sovereign capacity ultimately resolve. This is how the Philippine Supreme Court has decided in the case of EDSA I, which is why Cory Aquino, Ramos, Enrile, and Honasan have never been held accountable under the laws then existing for ending the Marcos regime and sending the tyrant into exile.

Let’s proceed to examine the facts in Gonzales v. Abaya [G.R. No. 164007, August 10, 2006] pertinent to our narrower discussion of the critical issue:

1. On December 12, 2003, the Pre-Trial Investigation Panel submitted its final Report to the JAGO, recommending that, following the “doctrine of absorption,” those charged with coup d’etat before the civil court (RTC) should not be charged before the military tribunal for violation of the Articles of War (Article 96 of the Articles of War pertains to Conduct Unbecoming an Officer and a Gentleman).

2. For its part, the RTC, on February 11, 2004, issued an Order stating that “all charges before the court martial against the accused…are hereby declared not service-connected, but rather absorbed and in furtherance of the alleged crime of coup d’etat.”

While not so stated, it is clear that both the Pre-Trial Investigation Panel and the RTC have invoked the half-a-century-old doctrine in Hernandez which states that

If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance “to the Government the territory of the Philippine Islands or any part thereof,” then said offense becomes 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.

Based on the Hernandez doctrine, ingredient elements of the political crime of coup d’etat, such as “conduct unbecoming an officer and a gentleman,” stripped of their “military” complexion, have become part and parcel of the underlying offense of coup d’etat.

The specific charge against our now senator Trillanes et al for violation of Article 96 of the Articles of War before the court martial states:

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.

The forgoing charge, without stretching one’s imagination, is unmistakably a mere ingredient or part and parcel of the political offense of coup d’etat which is defined by the Revised Penal Code as follows:

Article 134-A. Coup d’etat; How committed. — The crime of coup d’etat is a swift attack accompanied by violence, intimidation, threat, strategy or stealth, directed against duly constituted authorities of the Republic of the Philippines, or any military camp or installation, communications network, public utilities or other facilities needed for the exercise and continued possession of power, singly or simultaneously carried out anywhere in the Philippines by any person or persons, belonging to the military or police or holding any public office of employment with or without civilian support or participation for the purpose of seizing or diminishing state power. (As amended by R.A. 6968).

Following the long-standing doctrine in Hernandez, which has become part of the law of the land, “conduct unbecoming an officer and a gentlemen” as so described in the charge sheet is stripped of its military character and ceases to be “service-connected,” there being only one delictual act involved which is the political crime of coup d’etat.

Unfortunately, the majority in Gonzales has failed to see the obvious and held that

. . . 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 d’etat,” 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.”

There is no mistaking that the RTC is definitely not amending any law but is merely being deferential to a well-settled doctrine in Hernandez that has withstood the test of time, the principled reasoning therein not having been reversed by any existing law or any obtaining judicial doctrine to the contrary.

What is disheartening in the majority opinion in Gonzales is that instead of dwelling on the intent and purpose of Republic Act 7055 which is “AN ACT STRENGTHENING CIVILIAN SUPREMACY OVER THE MILITARY BY RETURNING TO THE CIVIL COURTS THE JURISDICTION OVER CERTAIN OFFENSES INVOLVING MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES, OTHER PERSONS SUBJECT TO MILITARY LAW, AND THE MEMBERS OF THE PHILIPPINE NATIONAL OFFICE …”, it has gone the opposite direction by emphasizing the necessity “to preserve the peculiar nature of military justice system over military personnel charged with service-connected offenses”; and, banking on “the observation made by Mr. Justice Antonio T. Carpio during the deliberation,” the same majority has defined “civilian supremacy” in the context of the Commander in Chief powers of the President, the same powers used by Marcos, through the military court system, to try and convict (of common crimes such as murder and illegal possession of firearms) and sentence to death by firing squad Senator Benigno Acquino, Jr., a civilian, even when the civil courts were open to hear those cases.

The Carpio rationale adopted by the Court is neither the intent and purpose of R.A. 7055 nor the definition of “civilian supremacy” therein as explained by Senator Wigberto Tañada, the sponsor of the legislation:

[A]s long as the civil courts in the land remain open and are regularly functioning, military tribunals cannot try and exercise jurisdiction over military men for criminal offenses committed by them and which are properly cognizable by the civil courts. To have it otherwise would be a violation of the aforementioned constitutional provisions on the supremacy of civilian authority over the military and the integrity and independence of the judiciary, as well as the due process and equal-protection clauses of the Constitution.

The majority in Gonzales has violated its own precepts that “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.’”

I believe the opinion of Justice Tinga, concurred in by Justice Ynares-Santiago and Justice Azcuna, is on many scores the more cogent one, one of the main contentions therein being

the majority has laid down a general rule that if members of the military are charged before military tribunals with violation of Articles of War 54 to 70, 72 to 92, and 95 to 97, then the court-martial proceedings would progress unhampered even if the acts which constitute the violation of the Articles of War also constitute offenses under the Revised Penal Code. The court-martial proceedings would also ensue even if the said personnel are also charged for the same acts with a criminal case before the civilian court, and even if the civilian court determines that the acts are not service-connected. Most critically, this view would allow the defendant to be tried and convicted by both the military and civilian courts for the same acts, despite the consistent jurisprudential rule that double jeopardy applies even as between court-martial and criminal trials. I cannot agree to these general propositions, excepting when the defendants happen to be charged before the court-martial for violation of Article 96 of the Articles of War.

Justice Tinga has explained his exception as to Article 96 of the Articles of War in the following:

However, I submit that Article of War 96 warrants special consideration, as it differs in character from the other Articles of War referred to in Section 1 of RA 7055.

Article 96 of Commonwealth Act No. 408, as amended, reads:

Art. 96. Conduct Unbecoming an Officer and a 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.

Justice Callejo, Sr. points out in his Concurring Opinion that “conduct unbecoming an officer and a gentleman is a uniquely military offense,” and that “[t]he article proscribing conduct unbecoming an officer and a gentleman has been held to be wholly independent of other definitions of offenses xxx [and] is not subject to preemption by other punitive articles.” It is difficult to dispute these conclusions, which derive from American military case law. After all, “conduct unbecoming” pertains to the unique exigencies of military life and discipline, whereby an officer is expected to conform to an idiosyncratic etiquette not required of civilians.

Yet more pertinent to my position is the penalty prescribed by Article 96 for “conduct unbecoming.” The penalty is dismissal from service, a penalty which is administrative in character, and beyond the jurisdiction of the civilian court to impose. Notably, of all the Articles of War referred to in Section 1 of RA 7055, it is only Article 96 that provides for dismissal from service as the exclusive penalty. All the other articles so mentioned allow for the penalty of death, imprisonment, or a punishment “as a court-martial may so direct” which could very well constitute any deprivation of life or liberty. While these other articles prescribes a penalty which is penal in nature, it is only Article 96 which provides for a penalty which is administrative in character.

As a result, I am prepared to conclude that courts-martial retain the jurisdiction to try violations of Article 96 of Commonwealth Act No. 408, or conduct unbecoming of an officer, even if the RTC determines that the acts constituting such violation are service-connected.

I take exception to Justice Tinga’s exception for the following reasons:

1. Contrary to the supposed “uniquely military” character of “conduct unbecoming an officer and a gentlemen,” the are many examples of “conduct unbecoming an officer and a gentleman” that are non-military in nature such as, a) dishonorable failure to pay a debt; b) cheating on an exam; c) opening and reading a letter of another without authority; d) being drunk and disorderly in a public place; e) public association with known prostitutes; and f) failing without good cause to support the officer’s family.

2. The penalty of reclusion perpetua for coup d’etat carries with it perpetual absolute disqualification from public office and therefore dismissal from military service (which is a public office or employment) is within the jurisdiction of civilian courts to impose.

On the other hand, lawyer Bencard in attempting to refute certain of my arguments has posted the following at mlq3’s blog:

. . . the Constitution which is a documentation of the social contract between the people (the body politic) and the government is the supreme law of the land. It is superior even against the “collectivity” you referred to that (has) effectively surrendered the exercise of sovereignty to its government, within the limitations set forth in that contract.

x x x

. . . my point (is) that the constitution is a social contract between the people (the entire nation) and the government, in which said people surrendered the exercise of sovereignty to the other party. The terms of this contract may not be breached in a cavalier fashion without paying dearly for it. There are legal ways to change its provisions but definitely not through self-help actions.

Again, the terms of the existing constitution do not allow absolution (either express or implied) of criminals by election to public office.

I am not one of those enamored by the social contract theory. What I have once posted in PCIJ partly explains why:

Think about it, now. Hobbes, Locke, and Rousseau were essentially “bloggers,” weren’t they? And like many of the bloggers in this forum, they had their own agenda to advance.

Let’s look at Hobbes for a moment. Hobbes was a monarchist. Thus he used certain arguments for individualism to conclude in favor of absolutism. His thesis in Leviathan: Because people pursued self-interest, the ruler needed total power to keep the people under control. By way of “social contract,” people supposedly gave up their rights to a strong ruler. Thus, his preference for a government by what we now call as an “authoritarian” ruler, an absolute monarch.

What about Locke. Locke postulated that governmental powers come from the consent of the governed; the purpose of government is to protect “life, liberty and PROPERTY”; and if government fails to do, “citizens” have a right to overthrow it. It appears however that his context of “citizens” was the rising bourgeoisie of his time. The progeny of this is, I believe, “elitism.” The American founding fathers, who were inspired by Locke, attempted to avoid the anomaly by a clever spin: “life, liberty and the PURSUIT OF HAPPINESS.” The profession of spin-doctors is an old one.

Rousseau? He was a plebeian, a son of watchmaker and he himself worked as an engraver before being recognized as a writer. He was passionately committed to individual freedom. His famous paradox was: “Man is born free, and everywhere he is in chains.” And so to him the only good government is the one FREELY formed by the people and guided by the “general will”. Hence, the concept of “direct democracy,” where all citizens have the right to participate in making laws, and the idea of liberty as “participation” instead of “freedom from state interference” which was the Lockean tradition of protecting property rights. Rousseau’s idea inspired the French Revolution and, from what I’ve been taught, Bonifacio and his adherents as well during the Philippine Revolution.

In the final analysis, ALL that I am saying is that the matter of whether the acts of Trillanes et al by entering the premises of the Oakwood apartment building, disarming the security guards and planting explosive devices around the building, announcing, through the broadcast media, their grievances against the administration of President Arroyo, such grievances 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, and declaring their withdrawal of support from their Commander in Chief and demanding that she resign as president of the republic and calling as well for the resignation of her cabinet members and the top brass of the AFP and PNP are patriotic acts or criminal offenses, is no longer merely a legal question that the courts can pass upon but is now in the nature of a political question that only the people can ultimately decide, as indeed they did, in their sovereign capacity.

The people have spoken against sending Trillanes to the gallows; they have instead chosen their man speak for them in the Senate to carry out the political agenda and purposes that have been promised during the campaign. That is the people’s mandate in the last election that ought to be respected by any other agencies of the collectivity.