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Chan Robles Virtual Law Library
PRESIDENTIAL DECREE NO. 39
PRESIDENTIAL DECREE NO. 39 -
GOVERNING THE CREATION, COMPOSITION, JURISDICTION, PROCEDURE, AND OTHER
MATTERS RELEVANT TO MILITARY TRIBUNALS
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WHEREAS, pursuant to Proclamation No. 1081
dated September 21, 1972, martial law is in effect throughout the
Philippines;chanroblesvirtualawlibrary
WHEREAS, under General Order No. 3 and 3-A, dated September 22, 1972
and September 24, 1972, respectively, certain offenses have been
withdrawn from the jurisdiction of the judicial department and directed
to be tried by special civil and military tribunals which may be
created by me or upon orders;chanroblesvirtualawlibrary
WHEREAS, under General Order No. 8 dated September 27, 1972, the Chief
of Staff of the Armed Forces of the Philippines has been empowered to
create military tribunals to try and decide cases of military personnel
and such other cases as may be referred to them;chanroblesvirtualawlibrary
WHEREAS, under General Order No. 12 dated September 30, 1972 and
General Order No. 12-A, dated October 2, 1972, the trial and decision
on certain offenses are exclusively cognizable by military tribunals or
cognizable by said tribunals concurrently with the civil courts;chanroblesvirtualawlibrary
WHEREAS, for a more orderly administration of justice in the cases
triable by the said military tribunals, it is necessary that the rules
of procedure and other matters be prescribed by me;chanroblesvirtualawlibrary
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines,
by virtue of the powers vested in me by the Constitution as
Commander-in-Chief of all the Armed Forces of the Philippines, and
pursuant to the proclamation and general orders mentioned above, do
hereby promulgate and decree as part of the law of the land, the
attached RULES GOVERNING THE CREATION, COMPOSITION, JURISDICTION,
PROCEDURE, AND OTHER MATTERS RELEVANT TO MILITARY TRIBUNALS and do
hereby enjoin strict adherence to them by all concerned, provided that
the Chief of Staff, shall with the approval of the Secretary of
National Defense, issue and promulgate implementing instructions which
are not inconsistent with said rules.
All actions taken pursuant to Circular M-1, General Headquarters, Armed
Forces of the Philippines dated October 2, 1972 are hereby confirmed.
This Decree shall take effect immediately.
Done in the City of Manila,
this 7th day of November, in the year of Our Lord, nineteen hundred and
seventy-two.
RULES GOVERNING THE CREATION, COMPOSITION, JURISDICTION, PROCEDURE, AND
OTHER MATTERS RELEVANT TO MILITARY TRIBUNALS
1. General: These rules are applicable to all
military tribunals.
2. Types and Composition of Tribunals:
a. The tribunals which may be created are:
(1) Military Commission
(2) Provost Court
b. Military Commission. —chanroblesvirtualawlibrary
(1) The Chief of Staff of the Armed Forces of the
Philippines shall create military commissions. A military commission
shall be composed of not less than five (5) members, one of whom shall
act as law member. It shall try cases of military personnel as may be
referred to it by the Chief of Staff, AFP and cases involving civilians
as may be referred to it by the Secretary of National Defense. Only
officers of field grade rank, if practicable, with judicial
temperament, prudence and integrity shall be appointed. Only an officer
on active military duty holding a commission in the Judge Advocate
General's Service or a lawyer-officer who has been certified as
qualified to sit as law member by The Judge Advocate General, AFP, may
be appointed as law member.
(2) Trial and Defense Counsel. — An officer of
suitable rank, legal background and experience, shall be designated as
trial counsel who shall have the same duties as a trial judge advocate
in general court-martial proceedings. We shall have the power to issue
compulsory process to secure either testimonial or documentary evidence
for both the prosecution and defense of the accused. An officer of
suitable rank, legal background and experience shall be appointed as
defense counsel. Assistant trial and defense counsel as may be
necessary shall also be appointed. Prosecutors and attorneys in the
prosecution staff of the Department of Justice District State
Prosecution, and city or provincial fiscals and their assistants may,
upon request of the Secretary of National Defense, and in the interest
of speedy administration of justice, be designated by the Secretary of
Justice to assist or collaborate in the investigation and prosecution
of cases cognizable by the Military Commission: Provided, however, That
the prosecution shall be under the control and supervision of the trial
counsel.
c. Provost Court. —
(1) A provost court is composed of one (1) officer
designated as Provost Court Officer. He shall be a commissioned officer
of suitable rank and a member of the Philippine Bar.
(2) The Chief of Staff, AFP for GHQ and AFP-Wide
Support units, and the major service commanders (CG, PA; C, PC; CG, PAF
and FOIC, PN) are authorized to appoint and constitute provost courts
to try military personnel assigned to or on detached service with their
respective commands.
(3) Cases involving civilians shall be referred to a
provost court upon direction of the Secretary of National Defense. No
cases involving a civilian shall be referred to a provost court except
for an offense over which a military tribunal exercises exclusive or
concurrent jurisdiction. The Chief of Staff, AFP, with the approval of
the Secretary of National Defense, shall allocate said cases involving
civilians among the various provost courts.
(4) The Commander who appointed the provost court
shall in the exercise of discretion determinate in each particular case
involving military personnel which action (proper court, court martial,
administrative separation) shall best serve the ends of justice,
discipline and objectives of martial law.
3. Jurisdiction. — All offenses where the range of
punishment that may be imposed is confinement for at least six (6)
years and one (1) day, or fine of not less than two thousand pesos
(P2,000.00) shall be referred to a military commission. All other cases
shall be referred to a provost court. A commissioned officer on active
duty in the Armed Forces of the Philippines shall, however, be tried
only by a military commission.
4. Procedure for Military Commission. —
a. Before Trial. —chanroblesvirtualawlibrary
(1) Before any charge is referred for trial, a
summary preliminary investigation shall be conducted unless one has
previously been made. The investigation shall be for the purpose of
determining whether or not there is prima facie evidence warranting
referred to a military commission for trial. The investigator shall
have the power to issue compulsory process to secure either testimonial
or documentary evidence. The accused has no right to counsel. The
investigation shall be conducted with dispatch and with the least
possible delay. The investigation report shall contain a summary of the
evidence, the acts constituting the offense or offenses committed, and
the findings and recommendations of the investigating officer. It shall
be forwarded to The Judge Advocate General, AFP who shall determine for
either the Secretary of National Defense or the Chief of Staff, AFP
whether the case shall be referred for trial by a military commission.
(2) Charges. — Formal charges shall be signed by a
commissioned officer designated by The Judge Advocate General, AFP.
(3) The Secretary of National Defense, if the accused
is a civilian and the Chief of Staff, AFP if the accused is a military
person, may direct that the charges be withdrawn from the military
commission at any stage of the proceedings prior to the promulgation of
findings and sentence by the commission.
(4) Bail. — The Military Commission may, in a case
where bail has not been previously granted by the civil authorities,
grant bail to the accused under such rules and regulations prescribed
or may hereafter be prescribed by the Chief of Staff, AFP with the
approval of the Secretary of National Defense. If the accused is a
member of the Armed Forces of the Philippines, his detention shall be
in accordance with the Articles of War and Manual Courts-Martial.
b. During Trial. —
(1) Place of Hearing. — A military commission may
hold hearings in any military camp, post, station, headquarters or
civilian government office anywhere in the Philippines taking into
consideration the availability of witness, place of the commission of
the offense and such other circumstances may be necessary for a fair
and speedy trial.
(2) Challenges. — No peremptory challenge shall be
allowed. Challenges for cause may be entertained to insure impartiality
and good faith. Challenges shall immediately be heard and determined by
a majority of the members excluding the challenged member. A tie vote
does not disqualify the challenged member. A successfully
challenged member shall be immediately replaced.
(3) Oaths. — The oaths prescribed in the Manual for
Courts-Martial shall be used, making such changes and substitutions in
wording as are necessary. The members of the Commission, the trial
counsel, and reporters need only be sworn once — at the time they are
appointed — need not be sworn again for the trial of each new case.
(4) Quorum. — To constitute a quorum, at least five
(5) members must be present.
(5) Rights of Accused. — The accused shall be
entitled:cralaw:red
(a) To challenge for cause any member of the
commission based on any of the grounds provided in the Manual for
Courts-Martial.
(b) To receive copy of the charges at least five (5)
days in advance of the date of initial hearing.
(c) To be present at the arraignment, when he enters
a plea of guilty and at the pronouncement of judgment of conviction.
Where the accused is in custody or charged with a capital offense, he
shall be entitled to be present at all stages of the trial. In cases
where there is allegation of conspiracy and one or more accused are
available for trial and others are not, trial may proceed against all,
provided, that the indictment shall have been published at least one
week for two consecutive weeks in any newspaper of general circulation
and a copy of a notice of trial shall have been served on the accused
or on his next of kin or at his last known residence or business
address with a person of sufficient discretion to receive the same.
(d) To be presented during the trial by defense
counsel appointed by the convening authority, or counsel of his own
choice if practicable or to conduct his own defense. In the event that
he is allowed a counsel of his own choice, he may elect to retain or
excuse the appointed defense counsel.
(e) To testify on his own behalf and present evidence
in his defense, and cross-examine any witness who personally appears
before the commission.
(f) To have the substance of the charges and
specifications, the proceedings and any documentary evidence translated
when he is unable to understand them.
(g) To have a copy of the record of trial within a
reasonable time after trial.
(6) Law Member. — The ruling of the law member on the
admissibility of evidence and on all interlocutory questions (i.e., all
questions other than the findings of guilt or innocence and sentence)
other than challenges, motion for a finding of not guilty or sanity of
the accused shall be final.
(7) Evidence. —
(a) The rules set forth in the Manual for
Courts-Martial shall normally be applied. Where the strict application
of said rules is not feasible, the Commission may modify the same
consistent with the requirements of justice. In such event, the
commission should accord the accused or his counsel and the trial
counsel reasonable notice before applying the modified rules. Nothing
under this rule should, however, allow the commission to admit hearsay
evidence nor to convict the accused without proof beyond reasonable
doubt.
(8) Trial Proper Procedure. — After the period of
challenges and the commission having been empanelled, the trial shall
be conducted substantially as follows unless modified by the commission
pursuant to (7) (a) above:cralaw:red
(a) Each charge and specification shall be read, or
its substances stated, in open court.
(b) The presiding member shall ask the accused
whether he pleads "Guilty" or "Not Guilty." At this stage, the accused
may more to quash charge under the same grounds, procedure, and
conditions prescribed in the Revised Rules of Court of the Philippines,
except that the motion shall only be oral.
(c) The prosecution shall make its opening statement.
(d) The witnesses and other evidence for the
prosecution shall be heard or presented. At the close of the case for
the prosecution, the commission, may on motion of the defense for a
finding of not guilty, consider and rule whether the evidence before
the commission supports the charges against the accused. The commission
may grant, deny or defer action on such motion.
(e) The defense may make an opening statement prior
to presenting its case.
(f) The witnesses and other evidence for the defense
shall be heard or presented. Thereafter, the prosecution and defense
shall introduce evidence in rebuttal.
(g) The prosecution and thereafter the defense shall
deliver their respective summations.
(h) The commission shall thereafter close and
deliberate on the findings and sentence and shall not adjourn until it
has arrived at and announced the findings and sentence.
(i) Manner of Voting and Number of Votes Required. —
Voting on the findings and sentence and shall be secret written ballot.
The minimum number of votes required for a conviction or sentence shall
be as follows:cralaw:red
1. To convict:
a. For an offense carrying a mandatory death penalty
— Five (5) members.
b. For other offenses — Two thirds of the members
present at the time the vote is taken.
2. To sentence:
a. Death — Five (5) members.
b. Other penalty — Two thirds of the members present
at the time the vote is taken.
(9) Sentence. — The sentence shall be commensurate
with the offense committed. A military commission shall apply the
penalties prescribed in martial law orders or decrees and their
absence, the penalties prescribed by applicable laws. In the absence of
both, the penalties prescribed by the Articles of War and Manuals for
Courts-Martial shall be the guide. Conviction automatically carries
with it dismissal from the service if the accused is a commissioned
officer, government official or employee, and dishonorable discharge if
an enlisted person of the Armed Forces of the Philippines, unless
otherwise decreed in the judgment.
(10) Record. — A military commission is a court of
record. A verbatim record of its proceedings shall be made. It shall be
prepared by the trial counsel under the direction of the commission.
Such record, certified by the presiding members of the commission or
his successor shall be delivered or transmitted to the convening
authority as soon as possible after trial.
(11) Contempt. — A military commission may punish
direct contempt with confinement for not more than one (1) month and
indirect contempt with confinement for as long as the person fails to
comply or obey a lawful order of the commission.
c. After trial. —
(1) Action by Convening Authority. — Every record of
trial by military commission shall be forwarded to the Chief of Staff,
Armed Forces of the Philippines for action. If the sentence imposed by
the military commission is death or imprisonment for twenty (20) years
and one (1) day or more, the Chief of Staff, Armed Forces of the
Philippines shall refer the record of trial to a Board of Review as may
be necessary. The Board of Review for review. For this purpose, he
shall constitute such Board of Review as may be necessary. The Board of
Review shall transmit its opinion together with the record of trial to
the Chief of Staff, Armed Forces of the Philippines for action.
(2) Execution of Sentence. — Except as otherwise
herein provided, no sentence of a military commission shall be executed
unless the same is approved and ordered executed by the Chief of Staff,
Armed Forces of the Philippines. Where the sentence imposed by a
military commission is death or if the Chief of Staff recommends that a
penalty of death should be imposed, in a case where the sentence
imposed by a military commission is less than death, the record of
trial shall be forwarded to the President through the Secretary of
National Defense, for confirmation or approval. No sentence of death
shall be executed unless ordered executed by the President. In any
case, the President shall have the power to reverse, confirm,
increase the penalty imposed, or otherwise modify any decision of
the military commission.
5. Procedure in Provost Court:
a. Before Trial. — A summary investigation as that
required for a military commission shall be conducted unless the
offense is punishable by less than six (6) months of imprisonment
and/or fine of less than two hundred pesos (P200.00) in which case no
investigation shall be conducted. However, the accused should receive
notice of the charge at least three (3) days in advance of trial. The
charges should be signed by the accuser who must be an officer on
active military duty.
b. During Trial.
(1) General Procedures. — The provost court officer
is not subject to challenge. However, if the accused has a ground for
challenging the provost court officer for cause, he shall address his
challenge to the appointing authority for decision, in which event the
provost court officer shall not proceed until the challenge has been
decided. The rules pertaining to oaths, rules of evidence, and the
right of the accused to produce evidence and cross-examine witnesses is
the same as those provided for a military commission. The accused may
be represented by counsel of his own choice if he so desires, unless
the exercise of such right will unduly delay the proceedings.
(2) Record. — A verbatim record of the proceedings of
a provost court shall be made. It shall be prepared by the provost
court officer. Thereafter, it shall immediately be transmitted to the
major service commander for action as appointing authority.
c. After Trial. — No legal review after trial is
required. The sentence imposed is immediately executory upon approval
by the convening authority, unless the accused petitions the convening
authority for a review of the record of the case within fifteen (15)
days after the promulgation of the judgment by the court. In such event
and if the convening authority gives due course to the petition, the
record shall be reviewed by the judge advocate of the convening
authority. Action of the convening authority shall be made after the
judge advocate has submitted his advice and recommendation. After
review and upon approval of the sentence by the appointing authority,
the same shall be immediately executory.
6. General Guidance. — In all matters of procedure
not specifically covered in these rules, other general orders, decrees
or letters of instructions issued by higher authority, the Articles of
War and Manual on Courts-Martial shall be applied insofar as strictly
essential to serve the ends of justice.
7. Rescission Clause. — Provisions of Manual for
Courts-Martial and all other laws, rules and regulations which are
inconsistent with these rules are hereby amended, superseded and
modified to conform herewith.
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