THIRD DIVISION
[G.R. No. 198554. July 30, 2012.]
MAJOR GENERAL CARLOS F. GARCIA, AFP (RET.), petitioner, vs. THE EXECUTIVE SECRETARY, representing the OFFICE OF THE PRESIDENT; THE SECRETARY OF NATIONAL DEFENSE VOLTAIRE T. GAZMIN; THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, GEN. EDUARDO SL. OBAN, JR., and LT. GEN. GAUDENCIO S. PANGILINAN, AFP (RET.), DIRECTOR, BUREAU OF CORRECTIONS, respondents.
DECISION
PERALTA, J p:
For resolution of this Court is the Petition for Certiorari dated September 29, 2011 under Rule 65, Section 1 of the Revised Rules of Civil Procedure which seeks to annul and set aside the Confirmation of Sentence dated September 9, 2011, promulgated by the Office of the President.
The facts, as culled from the records, are the following:
On October 13, 2004, the Provost Martial General of the Armed Forces of the Philippines (AFP), Col. Henry A. Galarpe, by command of Vice-Admiral De Los Reyes, issued a Restriction to Quarters 1 containing the following:
1. Pursuant to Article of War 70 and the directive of the Acting Chief of Staff, AFP to the undersigned dtd 12 October 2004, you are hereby placed under Restriction to Quarters under guard pending investigation of your case.
2. You are further advised that you are not allowed to leave your quarters without the expressed permission from the Acting Chief of Staff, AFP.
3. In case you need immediate medical attention or required by the circumstance to be confined in a hospital, you shall likewise be under guard.
Thereafter, a Charge Sheet dated October 27, 2004 was filed with the Special General Court Martial NR 2 presided by Maj. Gen. Emmanuel R. Teodosio, AFP, (Ret.), enumerating the following violations allegedly committed by petitioner: IEAacT
CHARGE 1: VIOLATION OF THE 96TH ARTICLE OF WAR (CONDUCT UNBECOMING AN OFFICER AND GENTLEMAN).
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004, knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net [Worth] for the year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the following: cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received from AFPSLAI from June 2003 to December 2003 in the amount of one million three hundred sixty-five thousand pesos (P1,365,000.00); dollar peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal Bank, Bank of Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor vehicles registered under his and his [wife's] names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC 134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ 582 and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman.
SPECIFICATION 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003, knowingly, wrongfully and unlawfully fail to disclose/declare all his existing assets in his Sworn Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, such as the following: his cash holdings with the Armed Forces Police Savings and Loans Association, Inc. (AFPSLAI) in the amount of six million five hundred [thousand] pesos (P6,500,000.00); cash dividend received form AFPSLAI in June 2002 and December 2002 in the total amount of one million four hundred thirty-five thousand pesos (1,435,000.00), dollar and peso deposits with Land Bank of the Philippines, Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; motor vehicles registered under his and his [wife's] names such as 1998 Toyota Hilux Utility Vehicle with Plate Nr. WRY-843, Toyota Car with Plate Nr. PEV-665, Toyota Previa with Plate Nr. UDS-195, 1997 Honda Civic Car with Plate Nr. FEC-134, 1997 Mitsubishi L-300 Van with Plate Nr. FDZ-582, and 2001 Toyota RAV 4 Utility Vehicle with Plate Nr. FEV-498, conduct unbecoming an officer and gentleman. ESITcH
SPECIFICATION 3: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, while in the active military service of the Armed Forces of the Philippines, knowingly, wrongfully and unlawfully violate his solemn oath as a military officer to uphold the Constitution and serve the people with utmost loyalty by acquiring and holding the status of an immigrant/permanent residence of the United States of America in violation of the State policy governing public officers, thereby causing dishonor and disrespect to the military professional and seriously compromises his position as an officer and exhibits him as morally unworthy to remain in the honorable profession of arms.
CHARGE II: VIOLATION OF THE 97TH ARTICLE OF WAR (CONDUCT PREJUDICIAL TO GOOD ORDER AND MILITARY DISCIPLINE)
SPECIFICATION 1: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 16 March 2004, knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assets in his Statement of Assets and Liabilities and Net worth for the year 2003 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military discipline.
SPECIFICATION NO. 2: In that MAJOR GENERAL CARLOS FLORES GARCIA 0-5820 ARMED FORCES OF THE PHILIPPINES, person subject to military law, did, on or about 11 March 2003, knowingly, wrongfully and unlawfully make untruthful statements under oath of his true assets in his Statement of Assets and Liabilities and Net worth for the year 2002 as required by Republic Act No. 3019, as amended in relation to Republic Act 6713, conduct prejudicial to good order and military discipline.
Petitioner, upon arraignment on November 16, 2004, pleaded not guilty on all the charges.
The Office of the Chief of Staff, through a Memorandum 2 dated November 18, 2004, directed the transfer of confinement of petitioner from his quarters at Camp General Emilio Aguinaldo to the ISAFP Detention Center. On the same day, petitioner, having reached the age of fifty-six (56), compulsorily retired from military service after availing of the provisions of Presidential Decree (P.D.) No. 1650, 3 amending Sections 3 and 5 of P.D. 1638, which establishes a system of retirement for military personnel of the Armed Forces of the Philippines. TCASIH
Pursuant to a Resolution 4 dated June 1, 2005 of the Second Division of the Sandiganbayan, petitioner was transferred from the ISAFP Detention Center to the Camp Crame Custodial Detention Center.
After trial, at the Special General Court Martial No. 2, on December 2, 2005, the findings or the After-Trial Report 5 of the same court was read to the petitioner. The report contains the following verdict and sentence:
MGEN CARLOS FLORES GARCIA 0-5820 AFP the court in closed session upon secret written ballot 2/3 of all the members present at the time the voting was taken concurring the following findings. Finds you:
On Specification 1 of Charge 1 — Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters Bank and Planters Development Bank.
On Specification 2 of Charge 1 — Guilty except the words dollar deposits with Land Bank of the Phils, dollar peso deposits with Allied Bank, Banco de Oro, Universal Bank, Bank of the Philippine Island, United Coconut Planters Bank and Planters Development Bank.
On Specification 3 of Charge 1 — Guilty
On Specification 1 of Charge 2 — Guilty
On Specification 2 of Charge 2 — Guilty
And again in closed session upon secret written ballot 2/3 all the members are present at the time the votes was taken concurrently sentences you to be dishonorably [discharged] from the service, to forfeit all pay and allowances due and to become due and to be confined at hard labor at such place the reviewing authority may direct for a period of two (2) years. So ordered. (Emphases supplied)
Afterwards, in a document 6 dated March 27, 2006, the Staff Judge Advocate stated the following recommended action:
IV.RECOMMENDED ACTION:
The court, after evaluating the evidence, found accused: GUILTY on Charge 1, GUILTY on Specification 1 on Charge 1 — except the words dollar deposits with Land Bank of the Philippines, dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planter's Bank and Planter's Development Bank; GUILTY on Charge 1, Specification 2 except the words dollar deposits with Land Bank of the Philippines, dollar and peso deposits with Allied Banking Corporation, Banco de Oro Universal Bank, Bank of the Philippine Islands, United Coconut Planters Bank and Planter's Development Bank; GUILTY on Specification 3 of Charge 1; GUILTY on Charge 2 and all its specifications. The sentence imposed by the Special GCM is to be dishonorably discharged from the service, to forfeit all pay and allowances due and to become due; and to be confined at hard labor at such place the reviewing authority may direct for a period of two (2) years. As it is, the sentence is proper and legal. Recommend that the sentence be approved. The PNP custodial facility in Camp Crame, Quezon City, is the appropriate place of confinement. The period of confinement from 18 October 2004 shall be credited in his favor and deducted from the two (2) years to which the accused was sentenced. Thus, confinement will expire on 18 October 2006. Considering that the period left not served is less than one (1) year, confinement at the National Penitentiary is no longer appropriate. IDaCcS
4. To carry this recommendation into effect, a draft "ACTION OF THE REVIEWING AUTHORITY" is hereto attached.
In an undated document, 7 the AFP Board of Military Review recommended the following action:
8. RECOMMENDED ACTION:
A. Only so much of the sentence as provides for the mandatory penalty of dismissal from the military service and forfeiture of pay and allowances due and to become due for the offenses of violation of AW 96 (Conduct Unbecoming an Officer and a Gentleman) and for violation of AW 97 (Conduct Prejudicial to Good Order and Military Discipline) be imposed upon the accused.
B. The records of the instant case should be forwarded to the President thru the Chief of Staff and the Secretary of National Defense, for final review pursuant to AW 47, the Accused herein being a General Officer whose case needs confirmation by the President.
C. To effectuate the foregoing, attached for CSAFP's signature/approval is a proposed 1st Indorsement to the President, thru the Secretary of National Defense, recommending approval of the attached prepared "ACTION OF THE PRESIDENT."
After six (6) years and two (2) months of preventive confinement, on December 16, 2010, petitioner was released from the Camp Crame Detention Center. 8
The Office of the President, or the President as Commander-in-Chief of the AFP and acting as the Confirming Authority under the Articles of War, confirmed the sentence imposed by the Court Martial against petitioner. The Confirmation of Sentence, 9 reads in part:
NOW, THEREFORE, I, BENIGNO S. AQUINO III, the President as Commander-in-Chief of the Armed Forces of the Philippines, do hereby confirm the sentence imposed by the Court Martial in the case of People of the Philippines versus Major General Carlos Flores Garcia AFP: HESAIT
a) To be dishonorable discharged from the service;
b) To forfeit all pay and allowances due and to become due; and
c) To be confined for a period of two (2) years in a penitentiary.
FURTHER, pursuant to the 48th and 49th Articles of War, the sentence on Major General Carlos Flores Garcia AFP shall not be remitted/mitigated by any previous confinement. Major General Carlos Flores Garcia AFP shall serve the foregoing sentence effective on this date.
DONE, in the City of Manila, this 9th day of September, in the year of our Lord, Two Thousand and Eleven.
Consequently, on September 15, 2011, respondent Secretary of National Defense Voltaire T. Gazmin, issued a Memorandum 10 to the Chief of Staff, AFP for strict implementation, the Confirmation of Sentence in the Court Martial Case of People of the Philippines Versus Major General Carlos Flores Garcia AFP.
On September 16, 2011, petitioner was arrested and detained, and continues to be detained at the National Penitentiary, Maximum Security, Bureau of Corrections, Muntinlupa City. 11
Aggrieved, petitioner filed with this Court the present petition for certiorari and petition for habeas corpus, alternatively. However, this Court, in its Resolution 12 dated October 10, 2011, denied the petition for habeas corpus. Petitioner filed a motion for reconsideration 13 dated November 15, 2011, but was denied 14 by this Court on December 12, 2011.
Petitioner enumerates the following grounds to support his petition:
GROUNDS
A.
THE JURISDICTION OF THE GENERAL COURT MARTIAL CEASED IPSO FACTO UPON THE RETIREMENT OF PETITIONER, FOR WHICH REASON THE OFFICE OF THE PRESIDENT ACTED WITHOUT JURISDICTION IN ISSUING THE CONFIRMATION OF SENTENCE, AND PETITIONER'S ARREST AND CONFINEMENT PURSUANT THERETO IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS. DaHSIT
B.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT PETITIONER REMAINED AMENABLE TO COURT MARTIAL JURISDICTION AFTER HIS RETIREMENT, THE OFFICE OF THE PRESIDENT ACTED WITH GRAVE ABUSE OF DISCRETION IN IMPOSING THE SENTENCE OF TWO (2) YEARS CONFINEMENT WITHOUT ANY LEGAL BASIS, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS.
C.
EVEN ASSUMING FOR THE SAKE OF ARGUMENT THAT THE PENALTY OF TWO (2) YEARS CONFINEMENT MAY BE IMPOSED IN ADDITION TO THE PENALTIES OF DISMISSAL AND FORFEITURE, THE SENTENCE HAD BEEN FULLY SERVED IN VIEW OF PETITIONER'S PREVENTIVE CONFINEMENT WHICH EXCEEDED THE 2-YEAR SENTENCE, AND THE OFFICE OF THE PRESIDENT HAS NO AUTHORITY TO REPUDIATE SAID SERVICE OF SENTENCE, FOR WHICH REASON PETITIONER'S ARREST AND CONFINEMENT DESPITE FULL SERVICE OF SENTENCE IS ILLEGAL, THUS WARRANTING THE WRIT OF HABEAS CORPUS. 15
In view of the earlier resolution of this Court denying petitioner's petition for habeas corpus, the above grounds are rendered moot and academic. Thus, the only issue in this petition for certiorari under Rule 65 of the Revised Rules of Civil Procedure, which was properly filed with this Court, is whether the Office of the President acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in issuing the Confirmation of Sentence dated September 9, 2011.
In its Comment 16 dated October 27, 2011, the Office of the Solicitor General (OSG) lists the following counter-arguments:
I.
PETITIONER'S DIRECT RECOURSE TO THE HONORABLE COURT VIOLATES THE DOCTRINE OF HIERARCHY OF COURTS; HENCE, THE PETITION SHOULD BE OUTRIGHTLY DISMISSED.
II.
THE GENERAL COURT MARTIAL RETAINED JURISDICTION OVER PETITIONER DESPITE HIS RETIREMENT DURING THE PENDENCY OF THE PROCEEDINGS AGAINST HIM SINCE THE SAID TRIBUNAL'S JURISDICTION HAD ALREADY FULLY ATTACHED PRIOR TO PETITIONER'S RETIREMENT. ECSaAc
III.
THE CONFIRMATION ISSUED BY THE OFFICE OF THE PRESIDENT DIRECTING PETITIONER TO BE CONFINED FOR TWO (2) YEARS IN A PENITENTIARY IS SANCTIONED BY C.A. NO. 408 AND EXECUTIVE ORDER NO. 178, PURSUANT TO THE PRESIDENT'S CONSTITUTIONAL AUTHORITY AS THE COMMANDER-IN-CHIEF OF THE AFP.
IV.
PETITIONER'S RIGHT TO A SPEEDY DISPOSITION OF HIS CASE WAS NOT VIOLATED IN THIS CASE.
V.
THE IMPOSITION OF THE PENALTY OF TWO (2) YEARS CONFINEMENT ON PETITIONER BY THE GCM, AND AS CONFIRMED BY THE PRESIDENT OF THE PHILIPPINES, IS VALID.
VI.
ACCORDINGLY, PUBLIC RESPONDENTS DID NOT ACT WITH GRAVE ABUSE OF DISCRETION IN ISSUING AND IMPLEMENTING THE CONFIRMATION OF SENTENCE. 17
Petitioner, in his Reply 18 dated January 20, 2012, disagreed with the arguments raised by the OSG due to the following:
(A)
THE CONFIRMATION OF THE COURT MARTIAL SENTENCE IS AN ACT BY THE PRESIDENT, AS THE COMMANDER-IN-CHIEF, AND NOT MERELY AS THE HEAD OF THE EXECUTIVE BRANCH. THEREFORE, THE HONORABLE COURT IS THE ONLY APPROPRIATE COURT WHERE HIS ACT MAY BE IMPUGNED, AND NOT IN THE LOWER COURTS, I.E., REGIONAL TRIAL COURT ("RTC") OR THE COURT OF APPEALS ("CA"), AS THE OSG ERRONEOUSLY POSTULATES.
(B)
ALTHOUGH THE GENERAL COURT MARTIAL ("GCM") RETAINED JURISDICTION "OVER THE PERSON" OF PETITIONER EVEN AFTER HE RETIRED FROM THE ARMED FORCES OF THE PHILIPPINES ("AFP"), HOWEVER, HIS RETIREMENT, CONTRARY TO THE STAND OF THE OSG, SEVERED HIS "JURAL RELATIONSHIP" WITH THE MILITARY, THEREBY PLACING HIM BEYOND THE SUBSTANTIVE REACH OF THE AFP'S COURT MARTIAL JURISDICTION. ISaTCD
(C)
UNDER ART. 29, REVISED PENAL CODE ("RPC"), PETITIONER'S COURT MARTIAL SENTENCE OF TWO (2) YEARS INCARCERATION HAD ALREADY BEEN SERVED IN FULL SINCE HE HAD ALREADY SUFFERED PREVENTIVE IMPRISONMENT OF AT LEAST SIX (6) YEARS BEFORE THE SENTENCE COULD BE CONFIRMED, WHICH MEANS THAT THE PRESIDENT HAD NO MORE JURISDICTION WHEN HE CONFIRMED IT, THEREBY RENDERING THE "CONFIRMATION OF SENTENCE" A PATENT NULLITY, AND, CONSEQUENTLY, INVALIDATING THE OSG'S POSITION THAT THE PRESIDENT STILL HAD JURISDICTION WHEN HE CONFIRMED THE SENTENCE. 19
Petitioner raises the issue of the jurisdiction of the General Court Martial to try his case. According to him, the said jurisdiction ceased ipso facto upon his compulsory retirement. Thus, he insists that the Office of the President had acted without jurisdiction in issuing the confirmation of his sentence.
This Court finds the above argument bereft of merit.
Article 2 of the Articles of War 20 circumscribes the jurisdiction of military law over persons subject thereto, to wit:
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; aDcEIH
(b) Cadets, flying cadets, and probationary second lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the Armed Forces of the Philippines in the field in time of war or when martial law is declared though not otherwise subject to these articles;
(d) All persons under sentence adjudged by courts-martial.
(As amended by Republic Acts 242 and 516).
It is indisputable that petitioner was an officer in the active service of the AFP in March 2003 and 2004, when the alleged violations were committed. The charges were filed on October 27, 2004 and he was arraigned on November 16, 2004. Clearly, from the time the violations were committed until the time petitioner was arraigned, the General Court Martial had jurisdiction over the case. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated. 21 Therefore, petitioner's retirement on November 18, 2004 did not divest the General Court Martial of its jurisdiction. In B/Gen. (Ret.) Francisco V. Gudani, et al. v. Lt./Gen. Generoso Senga, et al., 22 this Court ruled that:
This point was settled against Gen. Gudani's position in Abadilla v. Ramos, where the Court declared that an officer whose name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military authorities when military justice proceedings were initiated against him before the termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost upon the instance of the parties but continues until the case is terminated.
Citing Colonel Winthrop's treatise on Military Law, the Court further stated: cDTIAC
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes against the contention of the petitioners, viz. —
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now settled law, in regard to military offenders in general, that if the military jurisdiction has once duly attached to them previous to the date of the termination of their legal period of service, they may be brought to trial by court-martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied to cases where the offense was committed just prior to the end of the term. In such cases the interests of discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day on which his service legally terminates and his right to a discharge is complete, proceedings with a view to trial are commenced against him — as by arrest or the service of charges, — the military jurisdiction will fully attach and once attached may be continued by a trial by court-martial ordered and held after the end of the term of the enlistment of the accused . . .
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638, as amended, "[a]n officer or enlisted man carried in the retired list [of the Armed Forces of the Philippines] shall be subject to the Articles of War . . ." To this citation, petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudani's retirement as an issue in their subsequent memorandum. 23
It is also apt to mention that under Executive Order No. 178, or the Manual for Courts-Martial, AFP, the jurisdiction of courts-martial over officers, cadets, soldiers, and other military personnel in the event of discharge or other separation from the service, and the exceptions thereto, is defined thus: AEIcTD
10. COURT-MARTIAL — Jurisdiction in general — Termination — General Rules — The general rule is that court-martial jurisdiction over officers, cadets, soldiers and others in the military service of the Philippines ceases on discharge or other separation from such service, and that jurisdiction as to any offense committed during a period of service thus terminated is not revived by a reentry into the military service.
Exceptions — To this general rule there are, however, some exceptions, among them the following:
xxx xxx xxx
In certain case, where the person's discharge or other separation does not interrupt his status as a person belonging to the general category of persons subject to military law, court-martial jurisdiction does not terminate. Thus, where an officer holding a reserve commission is discharged from said commission by reason of acceptance of a commission in the Regular Force, there being no interval between services under the respective commissions, there is no terminating of the officer's military status, but merely the accomplishment of a change in his status from that of a reserve to that of a regular officer, and that court-martial jurisdiction to try him for an offense (striking enlisted men for example) committed prior to the discharge is not terminated by the discharge. So also, where a dishonorable discharged general prisoner is tried for an offense committed while a soldier and prior to his dishonorable discharge, such discharge does not terminate his amenability to trial for the offense. (Emphases supplied.)
Petitioner also asserts that the General Court Martial's continuing jurisdiction over him despite his retirement holds true only if the charge against him involves fraud, embezzlement or misappropriation of public funds citing this Court's ruling in De la Paz v. Alcaraz, et al.24 and Martin v. Ver. 25 However, this is not true. The OSG is correct in stating that in De la Paz, 26 military jurisdiction over the officer who reverted to inactive status was sustained by this Court because the violation involved misappropriation of public funds committed while he was still in the active military service, while in Martin, 27 military jurisdiction was affirmed because the violation pertained to illegal disposal of military property. Both cited cases centered on the nature of the offenses committed by the military personnel involved, justifying the exercise of jurisdiction by the courts-martial. On the other hand, in the present case, the continuing military jurisdiction is based on prior attachment of jurisdiction on the military court before petitioner's compulsory retirement. This continuing jurisdiction is provided under Section 1 of P.D. 1850, 28 as amended, thus:
Section 1. Court Martial Jurisdiction over Integrated National Police and Members of the Armed Forces. — Any provision of law to the contrary notwithstanding — (a) uniformed members of the Integrated National Police who commit any crime or offense cognizable by the civil courts shall henceforth be exclusively tried by courts-martial pursuant to and in accordance with Commonwealth Act No. 408, as amended, otherwise known as the Articles of War; (b) all persons subject to military law under article 2 of the aforecited Articles of War who commit any crime or offense shall be exclusively tried by courts-martial or their case disposed of under the said Articles of War; Provided, that, in either of the aforementioned situations, the case shall be disposed of or tried by the proper civil or judicial authorities when court-martial jurisdiction over the offense has prescribed under Article 38 of Commonwealth Act Numbered 408, as amended, or court-martial jurisdiction over the person of the accused military or Integrated National Police personnel can no longer be exercised by virtue of their separation from the active service without jurisdiction having duly attached beforehand unless otherwise provided by law: Provided further, that the President may, in the interest of justice, order or direct, at any time before arraignment, that a particular case be tried by the appropriate civil court. (Emphasis supplied.) cCESTA
Having established the jurisdiction of the General Court Martial over the case and the person of the petitioner, the President, as Commander-in-Chief, therefore acquired the jurisdiction to confirm petitioner's sentence as mandated under Article 47 of the Articles of War, which states:
Article 47. Confirmation — When Required. — In addition to the approval required by article forty-five, confirmation by the President is required in the following cases before the sentence of a court-martial is carried into execution, namely:
(a) Any sentence respecting a general officer;
(b) Any sentence extending to the dismissal of an officer except that in time of war a sentence extending to the dismissal of an officer below the grade of brigadier general may be carried into execution upon confirmation by the commanding general of the Army in the field;
(c) Any sentence extending to the suspension or dismissal of a cadet, probationary second lieutenant; and
(d) Any sentence of death, except in the case of persons convicted in time of war, of murder, mutiny, desertion, or as spies, and in such excepted cases of sentence of death may be carried into execution, subject to the provisions of Article 50, upon confirmation by the commanding general of the Army in the said field.
When the authority competent to confirm the sentence has already acted as the approving authority no additional confirmation by him is necessary. (As amended by Republic Act No. 242). (Emphasis supplied.)
In connection therewith, petitioner argues that the confirmation issued by the Office of the President directing him to be confined for two (2) years in the penitentiary had already been fully served in view of his preventive confinement which had exceeded two (2) years. Therefore, according to him, the Office of the President no longer has the authority to order his confinement in a penitentiary. On the other hand, the OSG opines that petitioner cannot legally demand the deduction of his preventive confinement in the service of his imposed two-year confinement in a penitentiary, because unlike our Revised Penal Code 29 which specifically mandates that the period of preventive imprisonment of the accused shall be deducted from the term of his imprisonment, the Articles of War and/or the Manual for Courts-Martial do not provide for the same deduction in the execution of the sentence imposed by the General Court Martial as confirmed by the President in appropriate cases. IcCDAS
On the above matter, this Court finds the argument raised by the OSG unmeritorious and finds logic inthe assertionof petitionerthatArticle29of theRevisedPenalCodecanbemadeapplicableinthepresentcase.
TheOSGmaintainsthatmilitarycommissionsortribunalsarenotcourtswithinthePhilippinejudicialsystem,citingOlaguer,etal.v.MilitaryCommissionNo.4, 30hence,theyarenotexpectedtoapplycriminallawconceptsintheirimplementationandexecutionof decisionsinvolvingthedisciplineof militarypersonnel.Thisismisleading.InOlaguer,thecourtsreferredtoweremilitarycommissionscreatedundermartiallawduringthetermof formerPresidentFerdinandMarcosandwasdeclaredunconstitutionalbythisCourt,whileinthepresentcase,theGeneralCourtMartialwhichtriedit,wascreatedunderCommonwealthActNo.408,asamended,andremainsavalidentity.
InMarcosv.Chief of Staff,Armed Forcesof thePhilippines, 31this Courtruledthatacourt-martialcaseisacriminalcaseandtheGeneralCourtMartialisa"court"akintoanyothercourts.Inthesamecase,thisCourtclarifiedastowhatconstitutesthewords"anycourt,"usedinSection17 32 of the1935Constitutionprohibitingmembersof Congresstoappearascounselinanycriminalcaseinwhichanofficeroremployeeof theGovernmentisaccusedof anoffensecommittedinrelationtohisoffice.ThisCourtheld:
Weareof theopinionandthereforeholdthatitisapplicable,becausethewords"anycourt"includestheGeneralCourt-Martial,andacourt-martialcaseisacriminalcasewithinthemeaningoftheabovequotedprovisionsof ourConstitution.
Itisobviousthatthewords"anycourt,"usedinprohibitingmembersof Congresstoappearascounsel"inanycriminalcaseinwhichanofficeroremployeeof theGovernmentisaccusedof anoffensecommittedinrelationtohisoffice,"refers,notonlytoacivil,butalsotoamilitarycourtoraCourt-Martial.Because,inconstruingaConstitution,"itmustbetakenasestablishedthatwherewordsareusedwhichhavebotharestrictedandageneralmeaning,thegeneralmustprevailovertherestrictedunlessthenatureof thesubjectmatterof thecontextclearlyindicatesthatthelimitedsenseisintended."(11AmericanJurisprudence,pp.680-682).
Inthecaseof RamonRuffyvs.Chief of Staff of thePhilippineArmy, *43Off.Gaz.,855,wedidnotholdthattheword"court"ingeneralusedinourConstitutiondoesnotincludeaCourt-Martial;whatweheldisthatthewords"inferiorcourts"usedinconnectionwiththeappellatejurisdictionof theSupremeCourtto"reviewonappealcertiorariorwritof error,asthelaworrulesofcourtmayprovide,finaljudgmentsof inferiorcourtsinallcriminalcasesinwhichthepenaltyimposedisdeathorlifeimprisonment,"asprovidedforinsection2,ArticleVIII,of theConstitution,donotrefertoCourts-MartialorMilitaryCourts. EAIcCS
Winthrop'sMilitaryLawandPrecedents,quotedbythepetitioners andbythisCourtinthecaseof RamonRuffyetal.vs.Chief of Staff of thePhilippineArmy,supra,hastosayinthisconnectionthefollowing:
Notwithstandingthatthecourt-martialisonlyaninstrumentalityof theexecutivepowerhavingnorelationorconnection,inlaw,withthejudicialestablishmentsof thecountry,itisyet,sofarasitisacourtatall,andwithinitsfieldof action,asfullyacourtof lawandjusticeasisanyciviltribunal.Asacourtof law,itisbound,likeanycourt,bythefundamentalprinciplesof law,and,intheabsenceofspecialprovisionof thesubjectinthemilitarycode,itobservesingeneraltherulesof evidenceasadoptedinthecommon-lawcourts.Asacourtof justice,itisrequiredbythetermsof itsstatutoryoath,(art.84.)toadjudicate betweentheU.S.andtheaccused"withoutpartiality,favor,oraffection,"andaccording,notonlytothelawsandcustomsof theservice,buttoits"conscience,"i.e.,itssenseof substantialrightandjusticeunaffectedbytechnicalities.Inthewordsof theAttorneyGeneral,court-martialarethus,"inthestrictestsensecourtsof justice.(Winthrop'sMilitaryLawandPrecedents,Vols.1and2,2ndEd.,p.54.)
InreBogart,3Fed.Cas.,796,801,citing6Op.Attys.Gen.425,withapproval,thecourtsaid:
Inthelanguageof AttorneyGeneralCushing,acourt-martialisalawfultribunalexistingbythesameauthoritythatanyotherexistsby,andthelawmilitaryisabranchof lawasvalidasanyother,anditdiffersfromthegenerallawof thelandinauthorityonlyinthis:thatitappliestoofficersandsoldiersof thearmybutnottoothermembersof thebodypolitic,andthatitislimitedtobreachesof militaryduty.
AndinreDavison,21F.618,620,itwasheld:
Thatcourts-martialarelawfultribunalsexistingbythesameauthorityascivilcourtsof theUnitedStates,havethesameplenaryjurisdictioninoffensesbythelawmilitaryasthelattercourtshaveincontroversieswithintheircognizance,andintheirspecialandmorelimitedsphereareentitledtoasuntrammelledanexerciseof theirpowers. EHTADa
Andlastly,AmericanJurisprudencesays:
SEC.99. RepresentationbyCounsel.—Itisthe generalrulethatoneaccusedof thecrimehastherighttoberepresentedbeforethecourtbycounsel,andthisisexpresslysodeclaredbythestatutescontrollingtheprocedureincourt-martial.Ithasbeenheldthataconstitutionalprovisionextendingthatrighttooneaccusedinanytrialinanycourtwhateverappliestoacourt-martialandgives the accusedtheundeniablerighttodefendbycounsel,andthatacourt-martialhasnopowertorefuseanattorneytheright toappearbeforeitif heisproperlylicensedtopracticeinthecourtsof thestate.(Citingthecaseof StateexrelHuffakervs.Crosby,24Nev.115,50Pac.127;36AmericanJurisprudence253)
Thefactthatajudgmentof conviction,notof acquittal,renderedbyacourt-martialmustbeapprovedbythereviewingauthoritybeforeitcanbeexecuted(Articleof War46),doesnotchangeoraffectthecharacterof acourt-martialasacourt.Ajudgmentof theCourtof FirstInstanceimposingdeathpenaltymustalsobeapprovedbytheSupremeCourtbeforeitcanbeexecuted.
Thatcourt-martialcasesarecriminalcaseswithinthemeaningof Section17,ArticleVI,of theConstitutionisalsoevident,becausethecrimesandmisdemeanorsforbiddenorpunishedbytheArticlesofWarare offensesagainsttheRepublicof thePhilippines.Accordingtosection1,Rule106,of theRulesof Court,acriminalactionorcaseisonewhichinvolvesawrongorinjurydonetotheRepublic,forthepunishmentof whichtheoffenderisprosecutedinthenameof thePeopleof thePhilippines;andpursuanttoArticleof War17,"thetrialadvocateof ageneralorspecialcourt-martialshallprosecute(theaccused)inthenameof thePeopleof thePhilippines."
Winthtrop,inhiswellknownwork"MilitaryLawandPrecedents'saysthefollowing:
Inregardtotheclassof courtstowhichitbelongs,itislastlytobenotedthatthecourt-martialisstrictlyacriminalcourt.Ithasnociviljurisdictionwhatever;cannotenforceacontract,collectadebt,orawarddamagesinfavorof anindividual. . . .Itsjudgmentisacriminalsentencenotacivilverdict;itsproperfunctionistoawardpunishmentupontheascertainmentof guilt.(Winthrop'sMilitaryLawandPrecedents,Vols.1&2,2ndEd.,p.55.) ITSCED
InN.Y.itwasheldthattheterm"criminalcase,"usedintheclause,mustbeallowedsomemeaning,andnonecanbeconceived,otherthanaprosecutionforacriminaloffense.ExparteCarter.66S.W.540,544,166No.604,57L.R.A.654,quotingPeoplevs.Kelly,24N.Y.74;Counselmanvs.Hitchcock,12S.Ct.195;142U.S.547,L.Ed.111o.(WordsandPhrases,Vol.10,p.485.)
Besides,thatacourt-martialisacourt,andtheprosecutionof anaccusedbeforeitisacriminalandnotanadministrativecase,andthereforeitwouldbe,undercertainconditions,abartoanotherprosecutionof thedefendantforthesameoffense,becausethelatterwouldplacetheaccusedinjeopardy,isshownbythedecisionof theSupremeCourtof theUnitedStatesinthecaseofGraftonvs.UnitedStates,206U.S.333;51Law.Ed.,1088,1092,inwhichthefollowingwasheld:
If acourt-martialhasjurisdictiontotryanofficerorsoldierforacrime,itsjudgmentwillbeaccordedthefinalityandconclusivenessastotheissuesinvolvedwhichattendthejudgmentsof acivilcourtinacaseof whichitmaylegallytakecognizance;. . .andrestrictingourdecisiontotheabovequestionof doublejeopardy,wejudgethat,consistentlywiththeaboveactof 1902,andforthereasonsstated,theplaintiffinerror,asoldierintheArmy,havingbeenacquittedof thecrimeof homicide,allegedtohavebeencommittedbyhiminthePhilippines,byamilitarycourtof competentjurisdiction,proceedingundertheauthorityof theUnitedStates,couldnotbesubsequentlytriedforthesameoffenseinacivilcourt exercisingauthorityinthatterritory.33(Emphasissupplied.)
Hence,asextensivelydiscussedabove,theGeneralCourtMartialisacourtwithinthestrictestsenseof thewordandactsasacriminalcourt.Onthatpremise,certainprovisionsof theRevisedPenalCode,insofarasthosethatarenotprovidedintheArticlesof WarandtheManualforCourts-Martial,canbesupplementary.UnderArticle10of theRevisedPenalCode:
Art.10. Offensesnotsubjecttotheprovisionsof thisCode.— Offenseswhichareorinthefuturemaybepunishableunderspeciallawsarenotsubjecttotheprovisionsof thisCode.ThisCodeshallbesupplementarytosuchlaws,unlessthelattershouldspeciallyprovidethecontrary.
AspeciallawisdefinedasapenallawwhichpunishesactsnotdefinedandpenalizedbytheRevisedPenalCode. 34Inthepresentcase,petitionerwaschargedwithandconvictedof ConductUnbecominganOfficerandGentleman(96thArticleof War)andViolationof the97thArticleof War,orConductPrejudicialtoGoodOrderandMilitaryDiscipline,bothof whicharenotdefinedandpenalizedundertheRevisedPenalCode.ThecorrespondingpenaltyimposedbytheGeneralCourtMartial,whichistwo(2)yearsof confinementathardlaborispenalinnature.Therefore,absentanyprovisionastotheapplicationof acriminalconceptintheimplementationandexecutionof theGeneralCourtMartial'sdecision,theprovisionsof theRevisedPenalCode,specificallyArticle29shouldbeapplied.Infact,thedeductionof petitioner'speriodofconfinementtohissentencehasbeenrecommendedintheStaff JudgeAdvocateReview,thus: aDIHCT
. . .Recommendthatthesentencebeapproved.ThePNPcustodialfacilityinCampCrame,QuezonCity,istheappropriateplaceofconfinement.Theperiodof confinementfrom18October2004shallbecreditedinhisfavoranddeductedfromthetwo(2)yearstowhichtheaccusedwassentenced.Thus,confinementwillexpireon18October2006.Consideringthattheperiodleftnotservedislessthanone(1)year,confinementattheNationalPenitentiaryisnolongerappropriate. 35(Emphasissupplied.)
TheabovewasreiteratedintheActionof theReviewingAuthority, thus:
IntheforegoingGeneralCourt-Martialcaseof Peopleof thePhilippinesversusMGEN.CARLOSF.GARCIA0-5820AFP(nowRetired),theverdictof GUILTYisherebyapproved.
Thesentencetobedishonorablydischargedfromtheservice;toforfeitallpayandallowancesdueandtobecomedue;andtobeconfinedathardlaboratsuchplaceasthereviewingauthoritymaydirectforaperiodof two(2)yearsisalsoapproved.
ConsideringthattheAccusedhasbeeninconfinementsince18October2004,theentireperiodof hisconfinementsince18October2004willbecreditedinhisfavor.Consequently,histwo(2)yearsentenceof confinementwillexpireon18October2006.
Theproperplaceof confinementduringtheremainingunservedportionof hissentenceisanofficialmilitarydetentionfacility.However,theAccusedispresentlyundergoingtrialbeforetheSandiganbayanwhichhasdirectedthatcustodyoverhimbeturnedovertothecivilianauthorityandthathebeconfinedinacivilianjailordetentionfacilitypendingthedispositionof thecase(s)beforesaidCourt.Forthisreason,theAccusedshallremainconfinedatthePNP'sdetentionfacilityinCampCrame,QuezonCity.TheArmedForcesof thePhilippinesdeferstothecivilianauthorityonthismatter.
ShouldtheAccusedbereleasedfromconfinementuponlawfulordersbytheSandiganbayanbeforetheexpirationof hissentenceadjudgedbythemilitarycourt,theProvostMarshalGeneralshallimmediatelytakecustodyovertheAccused,whoshallbetransferredtoandservetheremainingunservedportionthereof attheISAFPdetentionfacilityinCampGeneralEmilioAguinaldo,QuezonCity. 36(Emphasissupplied.) AcTHCE
Nevertheless,theapplicationof Article29of theRevisedPenalCodeintheArticlesof WarisinaccordancewiththeEqualProtectionClauseofthe1987Constitution.Accordingtoalonglineof decisions,equalprotectionsimplyrequiresthatallpersonsorthingssimilarlysituatedshouldbetreatedalike,bothastorightsconferredandresponsibilitiesimposed. 37Itrequirespublicbodiesandinstitutionstotreatsimilarlysituatedindividualsinasimilarmanner. 38Thepurposeof theequalprotectionclauseistosecureeverypersonwithinastate'sjurisdictionagainstintentionalandarbitrary discrimination,whetheroccasionedbytheexpresstermsof astatuteorbyitsimproperexecutionthroughthestate'sduly-constitutedauthorities. 39Inotherwords,theconceptof equaljusticeunderthelawrequiresthestatetogovernimpartially,anditmaynotdrawdistinctionsbetweenindividualssolelyondifferencesthatareirrelevanttoalegitimategovernmentalobjective. 40It,however,doesnotrequiretheuniversalapplicationof thelawstoallpersonsorthingswithoutdistinction.Whatitsimplyrequiresisequalityamongequalsasdeterminedaccordingtoavalidclassification.Indeed,theequalprotectionclausepermitsclassification.Suchclassification, however, to be valid mustpassthetestofreasonableness.Thetesthasfourrequisites:(1)theclassificationrestsonsubstantialdistinctions;(2)itisgermanetothepurposeof thelaw;(3)itisnotlimitedtoexistingconditionsonly;and(4)itappliesequallytoallmembersof thesameclass. 41"Superficialdifferencesdonotmakeforavalidclassification." 42Inthepresentcase,petitionerbelongstotheclassofthosewhohavebeenconvictedbyanycourt,thus,heisentitledtotherightsaccordedtothem.Clearly,thereisnosubstantialdistinctionbetweenthosewhoareconvictedof offenseswhicharecriminalinnatureundermilitarycourtsandthecivilcourts.Furthermore,followingthesamereasoning,petitionerisalsoentitledtothebasicandtime-honoredprinciplethatpenalstatutesareconstruedstrictlyagainsttheStateand liberallyinfavorof theaccused. 43Itmustberememberedthatthe provisionsof theArticlesof Warwhichthepetitionerviolatedarepenalin nature.
TheOSGiscorrectwhenitarguedthatthepowertoconfirmasentenceof thePresident,asCommander-in-Chief,includesthepowertoapproveordisapprovetheentireoranypartof thesentencegivenbythecourtmartial.AsprovidedinArticle48of theArticlesof War:
Article48. PowerIncidenttoPowertoConfirm.—Thepowertoconfirmthesentenceof acourt-martialshallbeheldtoinclude:
(a) Thepowertoconfirmordisapproveafinding,andtoconfirmsomuchonlyof afindingof guiltyof aparticularoffenseasinvolvesafindingof guiltyof alesserincludedoffensewhen,intheopinionof theauthorityhavingpowertoconfirm,theevidenceof recordrequiresafindingofonlythelesserdegreeof guilt;
(b) Thepowertoconfirmordisapprovethewholeoranypartof thesentence;and
(c) Thepowertoremandacaseforrehearing,undertheprovisionsof Article50.(Emphasissupplied.) ISADET
Inaddition,thePresidentalsohasthepowertomitigateorremitasentence.UnderArticle49of theArticlesof War:
Article49. MitigationorRemissionof Sentence.—Thepowertoordertheexecutionof thesentenceadjudgedbyacourt-martialshallbeheldtoinclude,interalia,thepowertomitigateorremitthewholeoranypartof thesentence.
Anyunexpectedportionof asentenceadjudgedbyacourt-martialmaybemitigatedorremittedbythemilitaryauthoritycompetenttoappoint,forthecommand,exclusiveof penitentiariesandDisciplinaryBarracksof theArmedForcesof thePhilippinesorPhilippineConstabulary,inwhichthepersonundersentenceisheld,acourtof thekindthatimposedthesentence,andthesamepowermaybeexercisedbysuperiormilitaryauthority;butnosentenceapprovedorconfirmedbythePresidentshallberemittedormitigatedbyanyotherauthority,andnoapprovedsentenceof lossof filesbyanofficershallberemittedormitigatedbyanyauthorityinferiortothePresident,exceptasprovidedinArticle52.
WhenempoweredbythePresidenttodoso,thecommandinggeneralof theArmyinthefieldortheareacommandermayapproveorconfirmandcommute(butnotapproveorconfirmwithoutcommuting),mitigate,orremitandthenorderexecutedascommuted,mitigated,orremittedanysentencewhichunderthoseArticlesrequirestheconfirmationof thePresidentbeforethesamemaybeexecuted.(Asamendedby RepublicActNo.242).
Thus,thepowerof thePresidenttoconfirm,mitigateandremitasentenceof erringmilitarypersonnelisaclearrecognitionof thesuperiorityof civilianauthorityoverthemilitary.However,althoughthelaw(Articlesof War)whichconferredthosepowerstothePresidentissilentastothe deductionof theperiodof preventiveconfinementtothepenaltyimposed,asdiscussedearlier,suchisalsotherightof anaccusedprovidedforbyArticle29of theRPC.
Astopetitioner'scontentionthathisrighttoaspeedydispositionofhiscasewasviolated,thisCourtfindsthesametobewithoutmerit.
NolessthanourConstitutionguaranteestherightnotjusttoaspeedytrialbuttothespeedydispositionof cases. 44However,itneedstobeunderscoredthatspeedydispositionisarelativeandflexibleconcept.Ameremathematicalreckoningof thetimeinvolvedisnotsufficient.Particularregardmustbetakenof thefactsandcircumstancespeculiartoeachcase. 45Indeterminingwhetherornottherighttothespeedydispositionof caseshasbeenviolated,thisCourthaslaiddownthefollowingguidelines:(1)thelengthof thedelay;(2)thereasonsforsuchdelay;(3)theassertionorfailuretoassertsuchrightbytheaccused;and(4)theprejudice causedbythedelay. 46 AHEDaI
Inthiscase,therewasnoallegation,whatsoeverof anydelayduringthetrial.Whatisbeingquestionedbypetitioneristhedelayintheconfirmationof sentencebythePresident.Basically,thecasehasalreadybeendecidedbytheGeneralCourtMartialandhasalsobeenreviewedbytheproperreviewingauthoritieswithoutanydelay.Theonlythingmissingthenwastheconfirmationof sentencebythePresident.Therecordsdonotshowthat,inthosesix(6)yearsfromthetimethedecisionof theGeneralCourtMartialwaspromulgateduntilthesentencewasfinallyconfirmedbythePresident,petitionertookanypositiveactiontoasserthisrighttoa speedydispositionof hiscase.ThisisakintowhathappenedinGuerrerov.Courtof Appeals, 47where,inspiteof thelapseof morethantenyearsofdelay,theCourtstillheldthatthepetitionercouldnotrightfullycomplainofdelayviolativeof hisrighttospeedytrialordispositionof hiscase,sincehewaspartof thereasonforthefailureof hiscasetomoveontowardsitsultimateresolution.TheCourtheld,interalia:
Inthecasebeforeus,thepetitionermerelysatandwaitedafterthecasewassubmittedforresolutionin1979.Itwasonlyin1989whenthecasebelowwasreraffledfromtheRTCof CaloocanCitytotheRTCof Navotas-Malabonandonlyafterrespondenttrialjudgeof thelattercourtorderedonMarch14,1990thepartiestofollow-upandcompletethetranscriptof stenographicnotesthatmattersstartedtogetmovingtowardsaresolutionof thecase.Moreimportantly,itwasonlyafterthenewtrialjudgeresettheretakingofthetestimoniestoNovember9,1990becauseof petitioner'sabsenceduringtheoriginalsettingonOctober24,1990thattheaccusedsuddenlybecamezealousof safeguardinghisrighttospeedytrialanddisposition.
xxx xxx xxx
Inthepresentcase,thereisnoquestionthatpetitionerraisedtheviolationagainsthisownrighttospeedydispositiononlywhentherespondenttrialjudgeresetthecaseforrehearing.Itisfairtoassumethathewouldhavejustcontinuedtosleeponhisright—asituationamountingtolaches—hadtherespondentjudgenottakentheinitiativeof determiningthenon-completionof therecordsandoforderingtheremedypreciselysohecoulddisposeof thecase.Themattercouldhavetakenadifferentdimensionif duringallthosetenyearsbetween1979whenaccusedfiledhismemorandumand1989whenthecasewasreraffled,theaccusedshowedsignsof assertinghisrightwhichwasgrantedhimin1987whenthenewconstitutiontookeffect,oratleastmadesomeovertact(likeamotionforearlydispositionoramotiontocompelthestenographertotranscribestenographicnotes)thathewasnotwaivingit.Asitis,hissilencewouldhavetobeinterpretedasawaiverof suchright.
WhilethisCourtrecognizestherighttospeedydispositionquitedistinctlyfromtherighttoaspeedytrial,andalthoughthisCourthasalwayszealouslyespousedprotectionfromoppressiveandvexatiousdelaysnotattributabletothepartyinvolved,atthesametime,weholdthataparty'sindividualrightsshouldnotworkagainstandprecludethe people'sequallyimportantrighttopublicjustice.Intheinstantcase,threepeoplediedasaresultof thecrashof theairplanethattheaccusedwasflying.Itappearstousthatthedelayinthedispositionof thecaseprejudicednotjusttheaccusedbutthepeopleaswell.Sincetheaccusedhascompletelyfailedtoasserthisrightseasonablyandinasmuchastherespondentjudgewasnotinapositiontodisposeof thecaseonthemeritsduetotheabsenceoffactualbasis,weholditproperandequitabletogivethepartiesfairopportunitytoobtain(andthecourttodispense)substantialjusticeinthepremises. 48 EHTISC
Timerunsagainsttheslothfulandthosewhoneglecttheirrights. 49Infact,thedelayintheconfirmationof hissentencewastohisownadvantage,becausewithouttheconfirmationfromthePresident,hissentencecannotbeserved.
Anentpetitioner'sotherarguments,thesamearealreadyrenderedmootandacademicduetotheabovediscussions.
Graveabuseof discretionmeanssuchcapriciousandwhimsicalexerciseof judgmentasisequivalenttolackof jurisdiction.Mereabuseofdiscretionisnotenough.Itmustbegraveabuseof discretion,aswhenthepowerisexercisedinanarbitraryordespoticmannerbyreasonof passionorpersonalhostility,andmustbesopatentandsogrossastoamounttoanevasionof apositivedutyortoavirtualrefusaltoperformthedutyenjoinedortoactatallincontemplationoflaw. 50Thus,applying,theearlierdisquisitions,thisCourtfindsthattheOfficeof thePresidentdidnotcommitanygraveabuseof discretioninissuingtheConfirmationof Sentenceinquestion.
WHEREFORE,thePetitionforCertioraridatedSeptember29,2011of MajorGeneralCarlosF.Garcia,AFP(Ret.)isherebyDISMISSED.However,applyingtheprovisionsof Article29of theRevisedPenalCode,thetimewithinwhichthepetitionerwasunderpreventiveconfinementshouldbecreditedtothesentenceconfirmedbytheOfficeof thePresident,subjecttotheconditionssetforthbythesamelaw.
SOORDERED.
Velasco, Jr., Abad, Sereno* and Perlas-Bernabe, JJ., concur.
Footnotes
*DesignatedActingMemberinlieuof AssociateJusticeJoseCatralMendoza,perSpecialOrderNo.1271datedJuly24,2012.
1.Rollo,p.73.
2.Id.at78.
3.Sec.2.Section5of PresidentialDecreeNo.1638isherebyamendedtoreadasfollows:
Sec.5(a).Uponattainingfifty-six(56)yearsof ageoruponaccumulationof thirty(30)yearsof satisfactoryactiveservice,whicheverislater,anofficerorenlistedmanshallbecompulsorilyretired;Provided,Thatsuchofficerorenlisted manwhoshallhaveattainedfifty-six(56)yearsof agewithatleasttwenty(20)yearsof activeserviceshallbeallowedtocompletethirty(30)yearsof servicebutnotbeyondhissixtieth(60th)birthday,Provided,however,Thatsuchmilitarypersonnelcompulsorilyretiringbyageshallhaveatleasttwenty(20)yearsof activeservice:Provided,further,Thatthecompulsoryretirementof anofficerservinginastatutorypositionshallbedeferreduntilcompletionof thetourof dutyprescribedbylaw;and,Provided,finally,ThattheactiveserviceofmilitarypersonnelmaybeextendedbythePresident,if inhisopinion,suchcontinuedmilitaryserviceisforthegoodof theservice.(Emphasissupplied.)
4.Rollo,pp.80-81.
5.Id.at82.
6.Staff JudgeAdvocateReview,id.at83-98.
7.Rollo,pp.102-114.
8.Orderof DischargedatedDecember16,2010bytheSandiganbayanSecondDivision,id.at115.
9.Rollo,pp.70-72.(Emphasissupplied.)
10.Id.at116.
11.Id.at23.
12.Id.at122-123.
13.Id.at215-238.
14.Id.at239.
15.Id.at23-25.
16.Id.at124-214.
17.Id.at137-138.
18.Id.at240-272.
19.Id.at240-241.
20.CommonwealthActNo.408,asamended.
21.Abadillav.Ramos,No.L-79173,December7,1987,156SCRA92,102.
22.G.R.No.170165,August15,2006,498SCRA671.
23.Id.at692-693.(Citationsomitted.)
24.99Phil.130(1956).
25.G.R.No.L-62810,July25,1983,123SCRA745.
26.Supranote24.
27.Supranote25.
28.PROVIDINGFORTHETRIALBYCOURTS-MARTIALOFMEMBERSOFTHEINTEGRATEDNATIONALPOLICEANDFURTHERDEFININGTHEJURISDICTIONOFCOURTS-MARTIALOVERMEMBERSOFTHEARMEDFORCESOFTHEPHILIPPINES.
29.Art.29.Period of preventiveimprisonmentdeducted fromtermof imprisonment.—Offenderswhohaveundergonepreventiveimprisonmentshallbecreditedintheserviceof theirsentenceconsistingof deprivationofliberty,withthefulltimeduringwhichtheyhaveundergonepreventiveimprisonment,if thedetentionprisoneragreesvoluntarilyinwritingtoabidebythesamedisciplinaryrulesimposeduponconvictedprisoners,exceptinthefollowingcases:
1.Whentheyarerecidivistsorhavebeenconvictedpreviouslytwiceormoretimesof anycrime;and
2.Whenuponbeingsummonedfortheexecutionof theirsentencetheyhavefailedtosurrendervoluntarily.
If thedetentionprisonerdoesnotagreetoabidebythesamedisciplinaryrulesimposeduponconvictedprisoners,heshallbecreditedintheserviceof hissentencewithfour-fifthsof thetimeduringwhichhehasundergonepreventiveimprisonment(AsamendedbyRepublicAct6127,June17,1970).
Wheneveranaccusedhasundergonepreventiveimprisonmentforaperiodequaltoormorethanthepossiblemaximumimprisonmentof theoffensechargedtowhichhemaybesentencedandhiscaseisnotyetterminated,heshallbereleasedimmediatelywithoutprejudicetothecontinuationofthetrialthereof ortheproceedingonappeal,if thesameisunderreview.Incasethemaximumpenaltytowhichtheaccusedmaybesentencedisdestierro,heshallbereleasedafterthirty(30)daysof preventiveimprisonment(AsamendedbyE.O.No.214,July10,1988).
30.G.R.Nos.L-54558andL-69882,May22,1987,150SCRA144.
31.89 Phil.246(1951).
32.Sec.17.NoSenatororMemberof theHouseof RepresentativesshalldirectlyorindirectlybefinanciallyinterestedinanycontractwiththeGovernmentoranysubdivisionorinstrumentalitythereof,orinanyfranchiseorspecialprivilegegrantedbytheCongressduringhistermofoffice.HeshallnotappearascounselbeforetheElectoralTribunalsorbeforeanycourtinanycivilcasewhereintheGovernmentoranysubdivisionorinstrumentalitythereof istheadverseparty,orinanycriminalcasewhereinanofficeroremployeeof theGovernmentisaccusedof anoffensecommittedinrelationtohisoffice.....
33.Marcosv.Chief of Staff,AFP,supranote31,at248-251.
34.SeeU.S.v.Serapio,23Phil.584,593(1912).
35.Rollo,p.98.
36.Rollo,p.100.
37.Ichongv.Hernandez,101Phil.1155(1957);Sison,Jr.v.Ancheta,G.R.No.L-59431,July25,1984,130SCRA654;Associationof SmallLandownersinthePhilippinesv.Secretaryof Agrarian Reform,G.R.No.7842,July14,1989,175SCRA343,375.
38.Guinov.Senkowski,54F3d1050(2d.Cir.1995),citedinAm.Jur.2d,Vol.16(b),p.302.
39.EdwardValves,Inc.v.WakeCounty,343N.C.426,citedinAm.Jur.2d,Vol.16(b),p.303.
40.Lehrv.Robertson,463US248,103citedinAm.Jur.2d,Vol.16(b),p.303.
41.Beltranv.Secretaryof Health,512Phil.560,583(2005).
42.Cruz,ConstitutionalLaw,2003ed.,p.128.
43.Peoplev.Temporada,G.R.No.173473,December17,2008,574SCRA258,303,citingPeoplev.Ladjaalam,395Phil.1,35(2000).
44.Constitution,Art.III,Sec.16:
Allpersonsshallhavetherighttoaspeedydispositionof theircasesbeforealljudicial,quasi-judicialoradministrativebodies.
45.Ombudsmanv.Jurado,G.R.No.154155,August6,2008,561SCRA135,138-139,citingBinayv.Sandiganbayan,G.R.Nos.120681-83,October1,1999,316SCRA65,93.
46.DelaPeñav.Sandiganbayan,G.R.No.144542,June29,2001,360SCRA478,485;Alvizov. Sandiganbayan,G.R.No.101689,March17,1993,220SCRA55,63-64.
47.G.R.No.107211,June28,1996,257SCRA703.
48.Id.at714-716.
49.SeePerezv.People,G.R.No.164763,February12,2008,544SCRA532,560.
50.Barbietov.CA,G.R.No.184645,October30,2009,604SCRA825,840-841,citingNeriv.SenateCommitteeonAccountabilityof PublicOfficersandInvestigations,SenateCommitteeonTradeandCommerce,andSenateCommitteeonNationalDefenseandSecurity,G.R.No.180643,March25,2008,549SCRA77,131.